Dr. Himanshu Mohan vs Chancellor Lko. University. Lko. & Ors.

(Delivered by Hon’ble Amitabh Kumar Rai,J.)

Heard Shri Sandeep Dixit, learned Senior Advocate assisted by Shri V. S. Ojha, learned counsel for the petitioner, Shri Mudit Agrawal, learned counsel for the private respondent/complainant, Shri Savitra Vardhan Singh, learned counsel for Lucknow University and Shri Rajesh Tiwari, learned counsel for University Grants Commission.

Both the aforesaid writ petitions have been filed challenging the order dated 27.11.2017, passed by the Chancellor, Lucknow University, in exercise of powers conferred under Section 68 of the U.P. State Universities Act, 1973 (hereinafter referred to as “the Act, 1973”), whereby the appointments of both the petitioners have been cancelled and directions have been issued to the Executive Council of the University of Lucknow to take immediate consequential steps to annul the selection of the petitioners to the post of Associate Professor in the Department of Business Administration under the Faculty of Commerce of the University.

Brief facts, shorn of unnecessary details, are that the University of Lucknow issued Recruitment Notice No.R-45/2015 dated 10.08.2015 for the post of Associate Professor in the Department of Business Administration requiring the candidates to submit their applications by 07.09.2015 possessing the qualifications prescribed under the “First Statutes” of the University of Lucknow. Dr. Himanshu Mohan and Dr. Sangeeta Sahu (hereinafter referred to as “the petitioners”) applied for the aforesaid post and after scrutiny of their application forms, were called for an interview on 15.01.2016 vide letter dated 26.12.2015 issued by the Registrar, Lucknow University along with a direction to produce the original copies of their testimonials, certificates, research publications, if any, mark-sheets and degrees. Both the petitioners were selected and their appointments were approved by the Executive Council of the University of Lucknow. They were accordingly appointed to the post of Associate Professor in the Department of Business Administration vide appointment letters dated 11.02.2016 pursuant to which they joined the said post on 18.02.2016.

Dr. Ritu Narang, who is the private respondent/complainant in the aforesaid petitions, had also applied for selection pursuant to the said recruitment notice for the post of Associate Professor in Business Administration. Feeling aggrieved by the selection and appointment of both the petitioners, she preferred a delayed representation before the Chancellor, University of Lucknow under Section 68 of the Act, 1973 seeking annulment of the selection and appointment of both the petitioners to the post of Associate Professor in the Department of Business Administration, constitution of a fresh Selection Committee and a de novo selection for the said post. The representation of the private respondent/complainant was entertained and notices were issued to both the petitioners. In furtherance thereof, both the petitioners submitted their objections. Thereafter, the Chancellor, University of Lucknow passed the order dated 27.11.2017 cancelling the appointments of both the petitioners.

The challenge raised by the private respondent/complainant, Dr. Ritu Narang, in her representation was twofold. Firstly, it was alleged that the Selection Committee constituted for the purpose of selection was not in accordance with the provisions of Section 31(4)(a) of the Act, 1973 and as such, the entire selection process was vitiated. Secondly, it was alleged that both the petitioners had been wrongly selected as they did not possess the qualifications prescribed under Statute 11.03.04(A) read with Statute 11.03.01 of the “First Statutes” of the University of Lucknow. It was specifically alleged that both the selected candidates i.e. the petitioners had not submitted any document evidencing that they had guided doctoral candidates and research students, which was one of the minimum qualifications prescribed for appointment to the post of Associate Professor.

It was further alleged by the private respondent/complainant that the Department of Business Administration falls within the Faculty of Commerce as provided under Statute 7.07 and therefore, the minimum qualifications prescribed for the Faculty of Commerce ought to have been treated as the criteria for selection, rather than the qualifications applicable to the Faculty of Management.

The delay in filing the representation under Section 68 of the Act, 1973 was condoned while entertaining the representation of the private respondent/complainant and the Chancellor, University of Lucknow proceeded to decide the issues raised by the private respondent/complainant on merits.

The Chancellor, University of Lucknow, while passing the order dated 27.11.2017, rejected the objection raised by the private respondent/complainant with regard to the constitution of the Selection Committee. However, it was held that the qualifications prescribed under Statute 11.03.04(A) read with Statute 11.03.01 were applicable to the selection for the post of Associate Professor in the Department of Business Administration for the reason that the Department of Business Administration falls within the Faculty of Commerce. Accordingly, it was held that as both the petitioners had not submitted any document evidencing that they had fulfilled the requirement of “evidence of having guided doctoral candidates and research students,” they lacked the essential minimum qualification prescribed for the post in question. Consequently, the Chancellor passed the order cancelling the appointments of both the petitioners.

Shri Sandeep Dixit, learned Senior Advocate appearing for the petitioners in both the aforesaid writ petitions has submitted that the order dated 27.11.2017 passed by the Chancellor, University of Lucknow is erroneous for the following reasons:

Learned counsel for the respondents, on the other hand, have reiterated the stand taken by the Chancellor, University of Lucknow while passing the order dated 27.11.2017 and have asserted that once the Department of Business Administration falls under the Faculty of Commerce, the provisions of Statute 11.03.04(A) read with Statute 11.03.01 of the “First Statutes” of the University of Lucknow would come into play. It has, therefore, been submitted that as both the petitioners lacked the minimum qualifications prescribed under the aforesaid Statutes, they were not eligible for appointment to the post of Associate Professor in the Department of Business Administration. Accordingly, the Chancellor, University of Lucknow rightly cancelled their appointments vide order dated 27.11.2017 and there is no infirmity or illegality in the impugned order.

It has further been submitted that where the law requires a thing to be done in a particular manner or where a power is conferred to do a particular thing in a particular manner, the thing must be done in that manner or not at all and all other methods of performance are necessarily forbidden.

It has been submitted that the “First Statutes” of the University of Lucknow specifically provide for the minimum qualifications required for appointment of teachers under the Faculty of Commerce. Hence, the appointments could be made only in accordance with the minimum qualifications prescribed under Statute 11.03.04(A) read with Statute 11.03.01 and any departure from the aforesaid provisions would render the appointments illegal.

Having heard learned counsel for the parties and perused the record, we find that Recruitment Notice No.R-45/2015 dated 10.08.2015 inviting applications for appointment to the post of Associate Professor in the Department of Business Administration specifically prescribed the qualifications in accordance with the “First Statutes” of the University of Lucknow.

It has also not been disputed that the “First Statutes” of the University of Lucknow were amended in exercise of powers conferred under Section 50(6) of the Act, 1973, whereby the provisions contained in the Regulations, 2010 were incorporated pursuant to the order dated 03.12.2013 issued by the State Government. The effect of the said amendment, in terms of the Regulations, 2010, was the incorporation of Statute 11.03.04(G), which is a specific provision governing the selection and appointment to the post of Associate Professor and other teaching posts in the Department of Business Administration.

Statute 11.03.04(G) incorporated in the “First Statutes” of the University of Lucknow is reproduced hereinbelow: :-

Chapter XI of the “First Statutes” of the University of Lucknow framed under Section 50(1) of the Act, 1973 deals with the qualifications and appointment of teachers in the University under Part I whereas Part II deals with the qualifications and appointment of teachers in Associate colleges.

Statute 11.03.04 provides for the minimum qualifications prescribed for the Faculties of Agriculture, Arts, Humanities, Sciences, Social Sciences, Commerce, Languages, Law, Journalism and Mass Communication. For the posts of Associate Professor and Professor, it prescribes the qualifications set out in Statutes 11.03.01 and 11.03.02 respectively. In the present case, General Eligibility Criteria for the post of Associate Professor as contained in Statute 11.03.01 are relevant and are reproduced hereinbelow:

From the above, it is evident that the minimum qualifications for the Faculty of Commerce are prescribed in accordance with General Eligibility Criteria referred in Statute 11.03.01 of the “First Statutes”. However, Statute 11.03.04(G) specifically prescribes the minimum qualifications for the Faculty of Management/Business Administration pertaining to the posts of teachers for teaching Management/Business Administration.

The question which arises for consideration is whether the selections were rightly made by taking into consideration the criteria prescribed under Statute 11.03.04(G) particularly when the Department of Business Administration at the relevant point of time was under the Faculty of Commerce and as per Statute 11.03.04(A), the minimum qualifications were required to be in accordance with General Eligibility Criteria prescribed under Statute 11.03.01.

It is to be noted that at the relevant point of time, there was a Department of Business Administration under the Faculty of Commerce and there was no separate Faculty of Management/Business Administration. Subsequently, the Faculty of Management/Business Administration came into existence in the University of Lucknow and presently there is a separate Faculty of Management/Business Administration.

Upon comparing the qualifications prescribed under Statute 11.03.01 of the “First Statutes”, it is evident that the eligibility qualifications prescribed therein are general in nature and differ from the eligibility qualifications prescribed for the post of Associate Professor under Statute 11.03.04(G). Under Statute 11.03.04(G), the requirement is of a good academic record with at least 55% marks in a Master’s Degree in Management/Business Administration or in a relevant management-related discipline or a first class in two years full-time PGDM declared equivalent by the AIU and recognized by the AICTE/UGC or a first-class graduate who is professionally qualified as a Chartered Accountant/Cost and Works Accountant/Company Secretary of the concerned statutory body.

On the other hand, under General Eligibility Criteria for the post of Associate Professor contained in Statute 11.03.01, the requirement is a good academic record with a Ph.D. degree in the concerned/allied/relevant discipline along with a Master’s degree with at least 55% marks. Thus, the qualifications prescribed under Statute 11.03.04(G) are specific in nature for appointment of teachers in Management/Business Administration whereas those contained in Statute 11.03.01 are general in nature.

We are of the view that Statute 11.03.04(G) was incorporated into the “First Statutes” as a consequence of the adoption of the Regulations, 2010 and prescribes specific eligibility qualifications for the appointment of teachers in Management/Business Administration courses. Being a specific provision, it would prevail over the General Eligibility Criteria prescribed under Statute 11.03.01 of the “First Statutes” of the University of Lucknow.

The eligibility qualifications contained in Statute 11.03.04(G) for appointment to teaching positions in the discipline of Management/Business Administration are at par with those prescribed under the Regulations, 2010 and are required to be mandatorily followed, inasmuch as the State Government adopted the said Regulations and made them applicable to the “First Statutes” of the University of Lucknow under Section 50(6) of the Act, 1973. The “First Statutes” of the University of Lucknow were accordingly amended and therefore, any appointment made dehors the eligibility qualifications prescribed under the Regulations, 2010 would render such appointment illegal.

Thus, after the Regulations, 2010 came into force in the State Universities with effect from 03.12.2013 by virtue of Section 50(6) of the Act, 1973, no selection for appointment to teaching positions in the discipline of Management/Business Administration could be permitted in violation of the eligibility qualifications prescribed under the Regulations, 2010.

We are of the view that while passing the order dated 27.11.2017, the Chancellor, University of Lucknow failed to take into consideration the effect of the amendment to the “First Statutes” of the University of Lucknow, whereby the Regulations, 2010 were adopted and incorporated into the “First Statutes” under Section 50(6) of the Act, 1973 with effect from 03.12.2013. Accordingly, the findings and reasoning recorded in the order dated 27.11.2017 cannot be sustained.

The stand of the University of Lucknow before the Chancellor in the proceedings under Section 68 of the Act, 1973 was that the Selection Committee had taken into consideration the eligibility criteria prescribed under Statute 11.03.04(G) and the selections were made in accordance with the aforesaid eligibility criteria and such practice is deprecated.

This Court is of the considered view that once the stand of the University of Lucknow before the Chancellor was that the selections had been made in accordance with the provisions contained in Statute 11.03.04(G) of the “First Statutes” of the University of Lucknow, it is not open for the University of Lucknow to take a contrary stand before this Court while opposing the aforesaid writ petitions.

Apart from the aforesaid, it is also required to be taken into consideration whether when the Selection Committee itself proceeded with the selections by taking into consideration the eligibility qualifications prescribed under Statute 11.03.04(G), the petitioners, who, according to their stand and the documents annexed to the writ petitions filed by them that they even possessed the requisite qualifications as per statute 11.03.2001 can be faulted for not submitting documents evidencing compliance with the requirement of “evidence of having guided doctoral candidates and research students.”

Accordingly, we hold that the order dated 27.11.2017 passed by the Chancellor, University of Lucknow is based on a misconceived notion of fact and law, inasmuch as it fails to take into consideration the effect of the amendment to the “First Statutes” of the University of Lucknow, whereby the Regulations, 2010 were incorporated under Section 50(6) of the Act, 1973 with effect from 03.12.2013. Further, it is the case of the petitioners that they possessed the qualification of having “evidence of having guided doctoral candidates and research students”, however, the Selection Committee did not require them to submit any document in support thereof. As such, their selection cannot be held to be illegal merely on the ground that they did not submit such documents particularly when the same were neither demanded nor required by the Selection Committee during the course of the selection process. It is the case of the petitioners that in any event, they were qualified even under the qualifications prescribed in Statute 11.03.04(A) as well as under Statute 11.03.04(G) of the “First Statutes” of the University of Lucknow.

This Court is of the view that once the Regulations, 2010 had been incorporated, it was not open for the University of Lucknow to make any selection in contravention of the eligibility qualifications prescribed under the Regulations, 2010. The reference to Statute 11.03.04(G) relating to the Faculty of Management/Business Administration does not permit selections to be made in the Department of Business Administration under the Faculty of Commerce in violation of the eligibility qualifications prescribed under the Regulations, 2010.

Regulation 4.4.5 of the Regulations, 2010 bears the heading “Minimum Qualifications for Appointment of Teaching Faculty in Universities and Colleges - Management/Business Administration” and has been incorporated as Statute 11.03.04(G) of the “First Statutes” of the University of Lucknow. The term “teaching faculty” refers to teachers appointed for imparting education to students enrolled in courses of Management/Business Administration and includes within its ambit, the teaching staff in the Department of Business Administration. Merely because the Department of Business Administration falls within the Faculty of Commerce does not in any manner dilute or override the minimum eligibility qualifications prescribed under the Regulations, 2010 with regard to the appointment of teachers for courses in Management/Business Administration.

Under the Regulations, 2010 eligibility is determined on the basis of whether the subject/discipline of the Master’s or Ph.D. degree corresponds to the requirements of the advertised teaching post irrespective of whether the appointment is made in a department or a faculty. For the purpose of determining eligibility, it would be fatal to refer to Statute 11.03.04(A) read with Statute 11.03.01 as doing so would amount to bypassing the minimum eligibility qualifications prescribed under the Regulations, 2010 for the appointment of teachers in Management/Business Administration.

We are of the view that where specific eligibility qualifications are prescribed for teaching staff for the purpose of imparting education in the subject/discipline of Management/Business Administration, such qualifications cannot be given a go-by by relying upon General Eligibility Criteria contained in Statute 11.03.01 of the “First Statutes” of the University of Lucknow as doing so would amount to a violation of the eligibility qualifications prescribed under the Regulations, 2010 for the appointment of teachers to teach in the subject/discipline of Management/Business Administration which stood incorporated in the First Statute of Lucknow University w.e.f. 03.12.2013 much prior to the selections.

In view of the aforesaid discussion and the findings recorded hereinabove, the order dated 27.11.2017 passed by the Chancellor, University of Lucknow in exercise of powers conferred under Section 68 of the Act, 1973 cannot be sustained and is, accordingly, quashed.

We are of the view that selection of both the petitioners, namely, Dr. Himanshu Mohan and Dr. Sangeeta Sahu to the post of Associate Professor was just and proper and accordingly are entitled to all consequential benefits arising from their respective selection and appointment to the said post.

Both the aforesaid writ petitions stand allowed. No order as to costs.