Sarvesh Palria vs Maharshi Dayanand Saraswati University and Others

M.N. Bhandari, J.—1. With the consent of parties, writ petition is heard finally.

By this petition, a challenge is made to the orders dated 3rd November, 2014, 30th June, 2010 and resolution dated 16th May, 2008. A further challenge is made to the resolution dated 26th December, 2013. The prayer of the petitioner is to appoint him on the post of Dean, Faculty of Science and HOD of Environmental Science.

Learned counsel for petitioner submits that after appointment in the respondent-University, he was promoted on the post of Professor (Environmental Studies) vide order dated 8th May, 2007. He was thereafter given charge of the post of HOD, Remote Sensing Department on its creation. The petitioner was not belonging to the said department. The appointment of HOD, Remote Sensing Department should have been made in consonance to the provisions of the Rajasthan Universities'' Teachers Officers (Selection for Appointment) (Amendment) Act, 1984 (in short "the Act of 1984"). As per Section 3 of the Act of 1984, no appointment of the officers and teachers in the University can be made except on the recommendation of the selection committee constituted under Section 5. The sub-section (2) of Section 3 of the Act of 1984 makes any appointment in violation of the sub-section (1) to be null and void.

Learned counsel submits that the respondent-University issued an order on 3rd November, 2014 appointing Dr. D.R. Mahrotra as Dean of Science Faculty. It is not on recommendation of the selection committee to be constituted as per Section 5 of the Act of 1984. Prior to it, on 30th June, 2010, the University gave charge of the post of Head of Department of Environmental Science to one Dr. Praveen Mathur. The said Mathur has been continued on the post without his appointment though the petitioner is Professor of the Environmental Studies and is available for the post given to Dr. Praveen Mathur under working arrangement. A reference of the Statute 9(4) has been given to show that post of HOD has to be given to the Professor of the University and if eligible person is available then to Associate Professor. The petitioner was available yet under working arrangement Dr. Praveen Mathur, Associate Professor has been continued for last more than five years. It was expected from the University to make appointment in consonance to the provisions of the Act and Statute. When nothing came out, the petitioner was left with no option but to challenge the orders impugned herein.

The challenge to the resolution dated 16th May, 2008 has also been made as it is again not in consonance to the provisions of the Act and Statute. The same is the position of the subsequent resolution dated 26th December, 2013. The respondent-University be directed to make appointment of the petitioner on the post of Dean and HOD of respective subjects i.e. Science and Environmental Sciences in consonance to the provisions of the Act of 1984 and the Statute of the University.

Learned counsel appearing for the respondents raised preliminary objection on maintainability of the writ petition. The challenge to the resolution dated 16th May, 2008 and order dated 30th June, 2010 is with unexplained delay. It is also submitted that petitioner is signatory of the resolution dated 16th May, 2008 thus cannot challenge it.

Coming to the merit of the case, it is submitted that appointment of Dr. D.R. Mahrotra as Dean of Science Faculty vide order dated 3rd November, 2014 is in consonance to the resolution dated 16th May, 2008. The Vice-Chancellor was given authority to make appointment on the post of Head of Science Faculty. Accordingly, Dr. D.R. Mahrotra was appointed as Dean of Science Faculty. So far as appointment of Dr. Praveen Mathur as HOD in Environment Science is concerned, it was made when Professor K.C. Sharma retired and no Professor in Environmental Science was available. The petitioner was working as HOD in Remote Sensing Department thus could not have been considered. Looking to the facts aforesaid, there is no illegality in the action of the respondents.

I have considered the rival submissions made by the parties and perused the record.

The objection of delay and laches in maintaining the writ petition has been taken. The perusal of the writ petition reveals not only representation by the petitioner after the order dated 30th June, 2010 but a decision favourable to him at one point of time. It is also a fact that for challenge to the order dated 3rd November, 2014, writ petition has been filed well within time as it was after few days of the said order. The writ petition cannot be sacrificed on the aforesaid ground if the illegality in the action of the respondents is shown. Thus, the merit of the case is also required to be dealt with.

For challenge to the resolution dated 16th May, 2008, again an issue of delay apart from participation of the petitioner therein has been raised. It is true that petitioner was signatory of the resolution dated 16th May, 2008. If this court allows the resolution to remain even after noticing it to be contrary to the Act then would be nothing but to perpetuate the illegality. If Para 21 of resolution dated 16th May, 2008 is considered, the decision is other than for the post of HOD on which Dr. Praveen Mathur is working. Thus even if it is accepted that petitioner was signatory to the resolution, thus cannot challenge it, the resolution was not for the post of HOD (Environmental Sciences). The fact further remains that Ordinance 9(4) makes it explicit and clear that who can be appointed as HOD. For ready reference, Ordinance 9(4) is quoted thus:

"Every department shall have a Head to be appointed by the Vice-Chancellor from amongst the professors or, in the absence of any professors, the Associate professors of that department."

The perusal of Ordinance reveals that Professor of the University would be appointed as HOD and if not available then the Associate Professor. The petitioner was available being Professor in Environmental Studies yet he was not considered for the post of HOD of the subject. The excuse taken by the University is that he was working on the post of HOD, Remote Sensing Department at the relevant point of time. The excuse taken by the University is not tenable as the petitioner was not appointed as HOD of Remote Sensing department but was given the charge under working arrangement. I find failure of the University to make appointment on the post as per the Act and the Statute. They have only working arrangements. If order passed in favour of Dr. Praveen Mathur dated 30th June, 2010 is considered, he was also given only charge of the post and not appointed as HOD (Environmental Sciences) at any point of time. It was under the circumstance that one Professor K.C. Sharma retired thus, respondent No. 3 was given charge considering him to be only available senior-most officer. The counsel for the University could not justify his continuance under the working arrangement for more than 5 1/2 years by now. If at all charge was given to Dr. Praveen Mathur on retirement of K.C. Sharma, the University was under an obligation to fill the post in consonance to the Act of 1984 and the Statute made therein. The University was under an obligation to consider Section 3(5) of the Act of 1984 for filling the post and Statute 9(4) for the post of HOD. No regulation or statute can be applied contrary to the provisions of the Act rather it can be in consonance to it. If any rule, regulation or statute supplement provision of the Act, it is permissible but it cannot supplant by making provision contrary to it. If resolution was taken by the University contrary to the provisions of the Act. In view of above, I find substance in the arguments raised by learned counsel for petitioner.

No one appears on behalf of respondent No. 2-Dr. D.R. Mahrotra despite service.

In view of discussion made above, I find action of the University to be not in consonance to the provisions of the Act and Statute. Looking to the fact that for last few years, respondents are working on the post thus for a period of two months, their status is not disturbed.

The writ petition is allowed with the direction to the University to make appointment on the post of HOD in Environmental Sciences and also Dean of Science Faculty in accordance to the provisions of law. While undertaking exercise aforesaid, the candidature of the petitioner would also be considered as he has not been appointed as HOD, Remote Sensing department and otherwise not belonging to that department rather could not have been for Environmental Sciences. The petitioner was made HOD of Remote Sensing Department under working arrangement thus the said post can also be filled by the University simultaneously from and amongst eligible candidates. If within a period of two months, appointments are not made in accordance to the provisions of law on the post in question, the respondents would not be entitled to continue on the posts.