Case: THE CHAIRPERSON GOVERNING BODY DAULAT RAM COLLEGE Vs. DR. ASHA &amp; ORS

3. Brief facts giving rise to this appeal are: Daulat Ram College is affiliated to theUniversity of Delhi since 1960. The Hostel of the Daulat Ram College is an integral part of the College. The Daulat Ram College Society is a registered Society which was established on 03.03.1960 which in turn has established Daulat Ram College (hereinafter referred to as the College). The Daulat Ram College Society has a Memorandum of Association as well Rules. The College has a Governing Body which is approved by the Executive Council of the University (Delhi University). We in the present case are only concerned with the Hostel of the Daulat Ram College and that too appointment of Warden of the Hostel of the College. The Governing Body of the College has been appointing the Warden of the Hostel of the College.4. On 10.09.2013, respondent No.4-Dr.Kavita Sharma was unanimously appointed as Warden of the College by the Governing Body with effect from 12.09.2013 for a period of two years. The two years term of respondent No.4 as Warden was going to end on 11.09.2015, the Governing Body of the College vide its Resolution dated 11.09.2015 re-appointed respondent No.4 as Warden of the College for two years. The Governing Body of the College directed the Principal to seek her willingness/ unwillingness in writing and in case she is willing, to issue her a letter of appointment with effect from 12.09.2015. The Principal issued a letter dated 15.09.2015 informing respondent No.4 that her term of appointment as Warden of the Hostel of the College has been extended upto 12.05.2016. The Chairperson of the Governing Body wrote to respondent No.3, Principal of the College questioning the letter dated 15.09.2015 appointing respondent No.4 for a period of eight months only. The Chairperson of Governing Body informed that re-appointment was for a period of two years and explanation was called from respondent No.3 as to why she has not complied with the order of the Governing Body. The Chairperson issued a letter dated 02.05.2016 to respondent No.3 sending agenda for the meeting scheduled to be held on 07.05.2016.5. The Principal on 02.05.2016 issued notice inviting applications from permanent teachers who are interested to work as Warden of College Hostel. Dr. Asha submitted her application. The Principal, respondent No.3 issued a letter dated 06.05.2016 appointing respondent No.1-Dr. Asha as Warden of the College Hostel and she was directed to assume charge on 21.05.2016. In the meeting of the Governing Body it was noted that vide Resolution dated 11.09.2015 respondent No.4 was appointed for a period of two years which term was to expire on 11.09.2017. It was resolved that necessary letters containing the term of appointment be sent accordingly. On 21.05.2016 a show cause notice was issued to respondent No.1 asking her to explain how she illegally and willfully attempted to occupy the post of the Hostel Warden when she was aware that respondent No.4 was the Hostel Warden appointed by the Governing Body vide its Resolution dated 11.09.2015 for a term of two years. Respondent No.1 wrote a letter on 24.05.2016 to the Chairperson, Governing Body asking that show cause notice issued to her being unwarranted and not based on facts be withdrawn. The Principal wrote on June 9/14, 2016 to the Manager, Indian Overseas Bank informing that respondent No.1 has been appointed as a Hostel Warden with effect from 21.05.2016 for two years and she will operate the College Hostel Accounts with effect from 21.05.2016. On 13.06.2016, the University of Delhi wrote a letter to respondent No.3 that appointment of Warden in a College Hostel is purely an administrative affair of the College and the University has no role to play in this behalf. The Principal was advised to act as per clause 6-A(5)(b)(iii) of Ordinance XVIII of the University.6. In the Minutes of the meeting of the Governing Body dated 24.06.2016 it was recorded that the Principal has illegally appointed Dr. Asha as Warden of the Hostel of the College. The Governing Body resolved that earlier status quo be maintained and respondent No.4, Dr. Kavita Sharma would continue as the Warden till such time that proper guidelines for appointment of Warden are made by the Governing Body Hostel Committee. Respondent No.3 recorded her dissent in the meeting dated 24.06.2016. The Principal issued a notice dated 30.07.2016 inviting applications from interested permanent teachers of the College for the post of Warden in the College Hostel. Respondent No.1 filed a Writ Petition No.7289 of 2016 praying for issuing a writ, order or direction in the nature of mandamus and/or certiorari directing respondent Nos.2 and 3, i.e., the Principal and Chairperson of the Governing Body to withdraw the notice dated 30.07.2016, declaration was sought that notice dated 30.07.2016 is illegal and unconstitutional. The petitioners case in the writ petition was that she was appointed as Warden of the Hostel of the College by Principal vide letter dated 06.05.2016 for a period of two years and took charge on 21.05.2016. The allegations were made against the Chairperson, Governing Body that she has created obstruction in the functioning of the writ petitioner.7. Learned single Judge vide order dated 19.08.2016 passed an order of the status quo regarding the petitioners position as Warden of the Daulat Ram College Hostel. Counter-affidavit was filed by the Governing Body. Learned Single Judge after hearing the parties passed a detailed order dated 25.11.2016 vacating the interim order dated 19.08.2016. Against order dated 25.11.2016 Letters Patent Appeal was filed by respondent No.3, Principal, Daulat Ram College where order dated 22.12.2016 was passed by the Division Bench directing the matter to be listed on 10.01.2017 till such time, status quo as of that day be maintained. The Division Bench also passed several orders subsequently and made it clear that pendency of the appeal shall not come in the way of the learned Single Judge in deciding the writ petition. Learned Single Judge by judgment dated 09.03.2018 disposed of writ petition.8. Learned Single Judge found that the appointment of the Warden in the College Hostel is the administrative affair of the College. The learned Single Judge held that appointment of the writ petitioner as Warden in the College Hostel by the Principal is irregular. In paragraph 14 following was held:14. In the facts and circumstances of this case, this petition and application are disposed of with direction to the Governing Body of respondent-College, for the post of Warden in question and it be placed before the Staff Council of respondent-College, who shall make recommendation for the post of Warden in the College Hostel within a period of four weeks and the said recommendation be considered by the Governing Body of respondent-College within two weeks thereafter, so that the post in question is expeditiously filled up.9. Aggrieved by the judgment of the learned Single Judge dated 09.03.2018, LPA No.316/2018 was filed by Dr. Asha-respondent No.1. The Chairperson, Governing Body wrote to the Principal and other members to initiate process for the appointment of the Warden. On Principal not initiating the process of the appointment, the Governing Body convened a meeting on 07.04.2018. The applications were also invited for the post of Hostel Warden. Respondent No.4 applied in pursuance of the application. On 07.04.2018 Governing Body in its meeting resolved to appoint respondent No.4 as Warden of the College Hostel. Thereafter an interim order dated 01.05.2018 was passed by the Division Bench. On 22.05.2018 Letters Patent Appeal was filed by respondent No.1 against the judgment dated 09.03.2018 of the Learned Single Judge.10. The Division Bench decided the LPA vide judgment dated 06.03.2019. The Division Bench although did not interfere with the direction of the learned Single Judge but in addition issued various directions. The Division Bench vide its direction in paragraph 41 directed for issue of notice by the Principal of the College inviting applications for appointment of Warden of the Hostel, which applications were required to be placed before the Staff Council which was to take a decision thereon and make its recommendations not later than 01.04.2019 and recommendations were to be placed before the Governing Body. Paragraph 41 of the Division Bench judgment is to the following effect:41. The Court, while not interfering with the directions issued by the learned Single Judge in the impugned order, issues the following directions:(i) Within a period ten days from today, and in any event not later than 18th March 2019, a notice will be issued by the Principal of the College inviting applications for appointment as Warden of the Hostel from amongst the teaching Staff, not limited to the Teachers living on campus, but subject to the undertaking given by the applicant (if living outside the campus) that if appointed as Warden she will stay on campus in the two- room set in the Hostel building.(ii) The applications received will be placed before the Staff Council which will take a decision thereon and make its recommendations not later than 1st April 2019.(iii) The recommendations of the Staff Council shall then be placed before the GB by the Principal forthwith, and in any event not later than 3rd April 2019.(iv) The GB will meet and take a decision on such recommendation of the Staff Council not later than 10th April 2019.(v) If for some reason the GB does not accept the recommendations of the Staff Council, it will give its reasons, which will form part of the minutes of its meeting and send the minutes to the Staff Council not later than 15th April 2019. In such event, the Staff Council will again convene and make a fresh recommendation from among the remaining applicants and this will be placed before the GB not later than 17th April 2019. The GB will be bound such recommendation and will take a decision on the appointment of the Warden not later than 20th April 2019. Dr. Kavita Sharma, if not appointed as Warden in the above process, shall immediately hand over charge to the newly appointed Warden. Likewise, the Matron would abide by the directions issued in para 39 above.(vi) The minutes of the meetings of the Staff Council and the GB in compliance with the above directions will be placed before the Court on the next date.11. Aggrieved by the judgment of the Division Bench dated 06.03.2019, the Chairperson, Governing Body, Daulat Ram College has filed this appeal. While issuing notice in this appeal on 05.04.2019 following order was passed by this Court:Till the next date the warden, who is as on date looking to the affairs of the hostel, shall continue.

Reasoning:
20. The claim of the Principal as well as respondent No.1 that it is the Principal who is the appointing authority of Warden of the College Hostel is based on letter of the University Grants Commission dated 19.02.1987. The letter dated 19.02.1987 was written by the Secretary of University Grants Commission to the Vice-Chancellor of the Delhi University regarding revising the existing staffing pattern in the Hostels of the Colleges affiliated to Delhi University. The above letter has been brought on record as Annexure- P2.23. A careful reading of the aforesaid letter indicates that the decision of the Commission which was communicated by the Secretary was the decision of the University Grants Commission to provide additional staff for smooth functioning of the Hostel of the College. The Commission neither took decision regarding appointment of the Warden nor such decision was communicated by the said letter.25. A perusal of the above minutes of the Executive Council of the Delhi University indicates that what Executive Council noticed in the minutes is that the Commission has approved the raising of the funding pattern of salaries of the employees of the Hostel from 75% to 95% and the remaining 5% of the expenditure was to be made by the Management as in the case of College administration with no financial burden on the students residing in the Hostels. Only to the extent of the above part of the decision of the Commission the Executive Council reiterated and there was no decision by the University that appointment of Warden of the Hostel is to be made by the Principal of the College.27. Two earlier letters dated 21.10.2013 and 13.06.2016 which have been brought on record as Annexure-P7 and Annexure-P23 have also communicated that appointment of Warden in the College Hostel is purely an administrative affair of the College and the University has no role to play in this behalf.28. In view of the aforesaid, letter dated 19.02.1987 issued by the University Grants Commission cannot be read to mean that it is Principal who is the appointing authority of the Warden of the Hostel of the College.29. Learned single Judge in its judgment dated 19.08.2016 has rightly held that University Grants Commissions letter dated 19.02.1987 is of no avail.When we read the Ordinance 6-A which deals with the Staff Council of every College, clause (5)(a) provides that subject to the provisions of the Act, the Statutes and the Ordinances of the University, the Staff Council has to take decisions in respect of the matters enumerated therein. There is reliance only on clause (5)(b)(iii) which is extracted above. Clause (5)(b) provides that subject to the provisions of the Act, the Statutes and the Ordinances of the University, the Staff Council shall make recommendations in respect of the matters mentioned therein. Formulation of guidelines regarding arrangements for the residence and welfare of students in consultation with appropriate students organisations, in no manner can embrace in it the power to make appointment of Warden. It has been clearly stated by the University in its letters and affidavit that it is a matter of administration of the College and is not dealt in the Act, Statutes and Ordinances. Had the Ordinance 6-A(5)(b)(iii) contemplated recommendation of Staff Council for appointment of Warden, the University could have very well taken that stand which stand has not been taken in the present proceedings.32. In the counter-affidavit of the University referring to practice, the University clearly states that appointment of Warden is purely an administrative affair of the College and the University has no role to play and further the same is not provided for under any of the provisions of the University of Delhi Act, Statutes and Ordinances. We, thus, come to the conclusion that Ordinance XVIII 6-A(5)(b)(iii) does not empower the Staff Council to make any recommendation with regard to the appointment of Warden of the College Hostel.34. The Governing Body, thus, has general supervision of the College. Even in the Colleges and Institutions which are maintained by the University, it is provided in Ordinance XX that the Governing Body which is constituted by the Executive Council is empowered to appoint the administrative staff of the College. Similarly, the Governing Body of the affiliated Colleges is empowered to appoint administrative staff of the College. The Ordinance does not empower the Principal to make any appointment of the Warden of the Hostel nor any other statutory provision has been referred which empowers the Principal to appoint Warden of the College.35. The Principal, however, who is entrusted the over all internal administration of the College is a person who knows all the staff of the College and his/her recommendation with regard to appointment of Warden of the College Hostel is to carry weight. The Governing Body while making appointment of Warden of the College Hostel has to give due weight to the recommendation of Principal. The appointment of Warden of the Hostel is made from amongst the permanent staff of the College, the practice which is followed in the College and with which there is no dispute between the parties is that the applications are invited through notice by Principal for appointment of Warden and after recommendation is made by the Principal, a decision is taken by the Governing Body is to appoint Warden.36. With regard to the role of Staff Council in the appointment of Warden of the Hostel, we have already observed that Ordinances do not empower the Staff Council to make any recommendation with regard to the appointment of Warden. We have found that the Principal has no authority to appoint Dr. Asha- respondent No.1 as Warden in the Hostel of the College and appointment made by the Principal was irregular. The Division Bench also did not interfere with the judgment of the learned Single Judge. The Division Bench in the directions in paragraph 41 has directed that the applications received in response to notice for appointment of Warden to be placed before the Staff Council which was to take a decision and make recommendations on the said applications. We having found that Staff Council is not statutorily empowered to make any recommendation regarding appointment of Warden of the College Hostel, the direction of the Division Bench requiring placement of all applications before the Staff Council was uncalled for. The appointment of Warden of the Hostel being in the domain of the Governing Body, the High Court should have left it to the Governing Body to take appropriate steps along with the Principal of the College for making appointment of the Warden of the Hostel of the College.38. Respondent No.4 in its counter-affidavit has stated that in pursuance of direction of the learned Single Judge, respondent No.4 was appointed by the Governing Body as Warden of the Hostel of the College whereas respondent No.1 claims that respondent No.1 has been appointed as Warden in pursuance of notice issued by the Principal on 08.03.2019. The appointment of respondent No.4 as Warden which was made subsequent to the judgment of the learned Single Judge by the Governing Body on 07.04.2018, the tenure of which has come to end. The initial appointment of respondent No.1 on 06.05.2016 as well as subsequent appointment as claimed by respondent No.1 cannot be held to be valid.39. The dispute which ensued regarding the appointment of Warden of the College Hostel arose due to the fact that position regarding procedure and right to make appointment on the post of Warden was not clear and the claim was raised by the Principal on the strength of letter of the University Grants Commission dated 19.02.1987 which we have dealt as above. From the discussion as above, it is clear that it is the Governing Body of the College which has the authority to appoint Warden of the College Hostel. However, the Principal being Executive head of the entire College and being in position to know the members of the staff as per prevailing practice the applications are to be invited through the Principal of the College and after receipt of the applications the applications along with recommendation of the Principal may be placed before the Governing Body which is to take decision regarding appointment of the Warden of the Hostel of the College.40. The affidavit has also been filed on behalf of the respondent No.3 that Hostel of the College is closed since June 2019 which has not yet been opened. An affidavit has also been filed by the appellant stating that Schools and Colleges were closed under the orders issued by the Government of India, Ministry of Home Affairs and it has to be opened in the fair manner.