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Dr. D.K. Belsare Vs. Nagpur University - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case Number W.P. No. 779 of 1973
Judge
Reported in(1980)82BOMLR494
AppellantDr. D.K. Belsare
RespondentNagpur University
DispositionPetition dismissed
Excerpt:
nagpur university act, 1963 (man. act xxii of 1964), sections 45, 59, 29(xi), 2(13) - nagpur university act (man. act xxv of 1974), section 85 -- nagpur university statute 54, clause 5 - candidate challenging by writ petition the constitution of committee of selection constituted under section 45 -- candidate coining to know defect in constitution of committee only after his interview was over -- petition whether not maintainable on ground of acquisance, waiver or estoppel -- chancellor not nominating member of selection committee as required by section 45(2)(v) -- constitution of committee whether improper -- provisions of section 45 whether directory and not mandatory -- words 'body' and 'committee' differently used in mah. act 22 of 1966 -- effect -- word 'committee' added in section.....deshpande, j.1. this is a writ petition filed by the petitioner challenging the appointment of respondent no. 3 by the nagpur university, the respondent no. 1 to the post of professor of zoology in the university department and it is filed under article 226 of the constitution of india and it arises out of the following facts :2. the respondent no. 1, nagpur university through its registrar, respondent no. 2, advertised the post of a professor of zoology in the university department by virtue of its order dated january 13, 1972. the qualifications for this post were undoubtedly as follows as mentioned in para 8 of the writ petition :i) at least a second class master's degree of a statutory indian university or any degree recognised as equivalent thereto with all or at least 75 % papers in.....
Judgment:

Deshpande, J.

1. This is a writ petition filed by the petitioner challenging the appointment of respondent No. 3 by the Nagpur University, the respondent No. 1 to the Post of professor of Zoology in the University department and it is filed under Article 226 of the Constitution of India and it arises out of the following facts :

2. The respondent No. 1, Nagpur University through its Registrar, respondent No. 2, advertised the post of a professor of Zoology in the University Department by virtue of its order dated January 13, 1972. The qualifications for this post were undoubtedly as follows as mentioned in para 8 of the writ petition :

i) At least a second class Master's Degree of a statutory Indian University or any degree recognised as equivalent thereto with all or at least 75 % papers in the subject concerned, with five years post graduate teaching experience and published research work;

ii) A Doctorate degree in the subject concerned after post-graduation in the subject in second division with three years post-graduate teaching experience (by papers) and/ or Post Doctoral published research work; and

iii) A doctorate degree in the subject after post-graduation in the subject with five years post-graduate teaching experience (by papers).

3. In pursuance of this advertisement, the petitioner, respondent No. 3 and others applied. None was selected and, therefore, the post was again advertised in August 1971. Same qualifications as before were prescribed this time also. The petitioner, respondent No. 3 and others applied and even during this selection also, none was selected but the Selection Committee offered this post to one Dr. Kamat on the ground that he was best suited for this post but Dr. Kamat did not respond to this offer made to him by the University.

4. In view of the fact that 'Dr. Kamat did not respond to its call, the University decided again to advertise the post and accordingly by an order dated January 20, 1973 the same post was readvertised again. Same qualifications, as before were prescribed with the following additional clause :

Additional qualifications and specialisations essential for the post-Specialisation in entomology, Research experience and experience of guiding research, research publications.

5. Admittedly, this last clause was not included in the first two advertisements, which were issued by the respondent No. 1, through the respondent No. 2. Feeling aggrieved by this additional clause, the petitioner made a representation to the Vice Chancellor on April 9, 1973 against the inclusion of this additional clause but it was of no avail. The petitioner, respondent No. 3 and others applied and in accordance with the statement filed by the respondent No. 1, it appears that all six persons submitted their applications in pursuance of the advertisement issued this time. It is an admitted fact that the appointment has to be made by the Executive Council of the Nagpur University on the strength of recommendation made by a Selection Committee constituted in that behalf. The Selection Committee was to be of the following persons :

i) The Vice-Chancellor - Ex-Officio Chairman.

ii) Head of the Department of Teaching concerned and where there is no such Head of the Department, the Chairman of the Board of Studies in the subject concerned;

iii) One member having special knowledge of the subject elected by the Executive Council from amongst the persons who are not connected with the University;

iv) Two members elected by the Academic Council, one of whom shall be member of the faculty concerned, and other, a person not connected with the University having special knowledge of the subject; and

v) One member nominated by the Chancellor being a person having special knowledge of the subject and not connected with the University.

6. Now it is an admitted fact that the Chancellor of the University had not nominated one member having special knowledge of the subject and not connected with the University as required by Clause (v) above and hence the Selection Committee that met for the purpose of selecting a candidate met without any such nomination by the Chancellor.

7. In the meeting of this Selection Committee, respondent No. 3 was selected by the Selection Committee and his name was forwarded to the Executive Council. The Executive Council of the Nagpur University accepted the recommendation of the Selection Committee to appoint respondent No. 3 to the post of professor of Zoology and accordingly passed a resolution appointing, respondent No. 3 as a Professor of Zoology. The petitioner thereafter made a further reference to the Vice Chancellor but it was of no avail and that is why the petitioner filed this writ petition for various reliefs mentioned in prayer clause of the writ petition. By virtue of amendment made in the year 1975, the petitioner prayed for a writ of quo warranto also against respondent No. 3.

8. The petitioner's attack on the appointment of respondent No. 3 by respondent No. 1 is three fold; (i) malafides of respondent No. 1; (ii) No proper constitution of Selection Committee resulting in the recommendation of the Selection Committee being rendered as illegal and void and as such no appointment could be made on the basis of that recommendation; and (iii) a writ of quo warranto be issued against respondent No. 3 in view of the fact that the appointment of respondent No. 3 is illegal. All these three fold allegations are denied by the respondents.

9. Before turning to the merits of these three contentions, Mr. K.H. Deshpande appearing for respondents 1 and 5 raised a preliminary objection. He contended that the petitioner cannot approbate and reprobate at the same time and, the petitioner having applied, having appeared for the interview and also having taken a chance of selection cannot now turn round and challenge selection of respondent No. 3 and, therefore, he pleaded that the writ petition was not maintainable on account of acquiscence, estoppel, waiver, etc. According to him, the petitioner appeared for the interview and took a chance of being-selected, knowing fully well that the Committee was not properly constituted and hence he cannot now resile and challenge the recommendation of the Committee. All the same, Mr. K.H. Deshpande was fair enough to state that this challenge was made by him on the hypothesis that the petitioner had the knowledge of the fact . that the Chancellor had not nominated his nominee and that the constitution of the Selection Committee was not complete.

10. In this respect, Mr. Deshpande relied upon three rulings. First is Dr. G. Saran v. Lucknow University : (1977)ILLJ68SC , Head note 8. This Head note runs as under :

Where a candidate for selection knowing fully well the relevant facts about the members of the selection Board voluntarily appeared for interview without raising any kind of objection against the constitution of the Selection Board and took a chance of favourable recommendation in his favour, it was not open to him to turn round and question the constitution of the Board, when the decision was unfavourable to him.

11. It will, therefore, be seen that these observations are made on the assumption that the candidate for the selection was knowing fully well all the relevant facts.

12. In this ruling, the Selection Committee consisted of five members and Dr. Dube and Dr. Chopra were two members of the Selection Committee. It is apparent that the petitioner in that ruling had several charges against these two members of the Selection Committee. They are enumerated in para 5 of this ruling. The appellant in that ruling alleged that whenever Dr. Dube visited Lucknow, he stayed with respondent No. 1 i.e. a person who was selected and that Dr. Chopra had strained relations with him on account of straight election contest between him and the latter for the office of the President of Anthropology Section of the Indian Science Congress for the year 1974. The appellant in that ruling further averred that in 1968, when he was serving in the Punjab University as a lecturer in the Department of Anthropology headed by Dr. Chopra, the latter stubbornly opposed his application for .leave in order to avail of the offer of fellowship from Harvard University and stopped forwarding his salary bills to the Executive Council with the ulterior object of depriving him of the opportunity to attain higher academic qualification and thereby better his future prospects with the result that he was compelled to resign his job and surrender three month's salary in lieu of notice to avail of the offer. In this-context, the Supreme Court observed as under :.despite the fact that the appellant knew all the relevant-facts, he did not, before appearing for the interview or at the time of the interview raise even his' little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee.

13. It will, therefore, be seen that he knew all the special circumstances prevailing in this case and, therefore, the Supreme Court came to the conclusion that the appellant could not challenge the Constitution of the Committee.

14. The second ruling is Sworn Lota v. Union of India (1979) 1 SLR 710 (S.C.) and it is also a decision by the Supreme Court. Reliance is placed upon para 66 of this ruling. In this ruling, a post of Principal, Government Central Crafts Institute under the Chandigarh administration was filled by the Chandigarh Administration by direct recruitment through the Agency of Union Public Service Commission by advertising the post and by calling for applications from the public. The appellant before the. Supreme Court was one of the applicants. She appeared for an interview in pursuance of a call for the same and was selected and placed at serial No. 2 and the respondent No. 6 in that ruling was selected and was placed at serial No. 1 by the Union Public Service Commission after relaxing certain qualifications. Hence the appellant challenged the selection of respondent No. 6 by a writ petition and the aforesaid observations are made in that context. They do not apply to the facts of the instant case.

15. Then reliance was placed upon an unreported decision of a Division Bench of this Court in P.C. Pande v. Nagpur University (1975) Spl. C.A. No. 1184/69 decided on December 12, 1975 by Division Bench of Nagpur (Unrep.). It appears from the facts of this ruling that an advertisement was issued on March IS, 1969 for a post of Professor of Geology in the Nagpur University. The petitioner in that case, respondent No. 3 in that case and one Dr. Niyogi applied. It is apparent from the facts of this case that on the date of application, the petitioner had not even submitted his thesis for doctorate in Geology whereas respondent No. 3 who was appointed by the University had the doctorate in his pocket. The doctorate degree was one of the essential qualifications prescribed for the appointment to the post of Professor of Geology. Even then, the Selection Committee, which met for the purpose of selecting a candidate put the petitioner at the top, while respondent No. 3 was put at serial No. 3. The recommendation was accordingly sent to the Executive Council and after considering the facts and circumstances and the recommendations made by the Selection Committee , the Executive Council decided to appoint respondent No. 3 and hence the petitioner filed that writ petition. In that writ petition also, it was contended that the constitution of the Selection Committee was defective but at this stage we are not concerned with that contention. It was held by the Division Bench following the earlier ruling, that the provisions of Section 45 of the Nagpur University Act were mandatory. The Division Bench held that it was the discretion of the Executive Council not to relax the condition as to qualification in as much as the Selection Committee had recommended that the conditions regarding qualification be relaxed in favour of the petitioner in that ruling and the Executive Council refused to relax condition regarding qualification and in this view of the matter the Division Bench held that the petitioner cannot claim such a relaxation as of right. It was also contended before the Division Bench that the constitution of the Selection Committee was defective inasmuch as the Chairman had not nominated his nominee. The Division bench observed as follows :

It would not be advisable or proper to proceed to consider the validity of Constitution of the Selection Committee, when the petitioner cannot claim any legal right to the post in dispute. The persons having right to the post alone can claim to challenge any such recommendations, appointments and constitution of the Selection Committee.

16. Mr. Deshpande placed reliance on the following observations :

There also appears to be much substance in the contention of Mr. Deshpande that the petitioner should not be heard in exercise of our discretionary jurisdiction under Articles 226 and 227 of the Constitution on the point of validity of the Selection Committee, when he himself chose to appear before it without any objection and also took the chance.

17. After stating these facts, the Division Bench observed as follows :

Whatever may be the effect of the defects in the Committee of Selection, the petitioner, at any rate, cannot have grievance as the Selection Committee in fact selected him and placed him at the top in order of merit.

18. It will, therefore, be seen that the Division Bench negatived the contention of the petitioner in that ruling on the ground that the fact the petitioner was selected by the Selection Committee and was placed at the top and hence the observations in that ruling will not be of any help to Mr. Deshpande to substantiate his grievance in this case.

19. As we have stated the contention raised by Mr. Deshpande postulates that the present petitioner knew prior to the interview about this defect in the constitution of the Selection Committee. As already pointed out, the Selection Committee consisted of six persons. There is nothing to show that the disclosures were made either to the petitioner or to the candidates that 'X' was member of the Selection Committee as per item No. 3 and 'Y' and 'Z' were the members as per item No. 4 and 'W' was a member as per item No. 5 of the list of the Selection Committee, reproduced by us earlier. It is not possible to believe that the present petitioner knew at or before the time of interview that the Chancellor had not nominated his nominee on the Selection Committee. It is not expected of a candidate to ask at the time of interview in what capacity the members of the Selection Committee were sitting there and to ask them whether all persons nominated on the Committee were duly elected or nominated, as the case may be, and to register protest then and there. According to Mr. Deshpande, the petitioner should have recorded his protest but we do not find any force whatsoever in this contention. It was then urged that the petitioner had not lodged any protest at any time later on also. It is not known how failure to raise protest later on would attract bar of acquiescence etc. as pointed out earlier. It was urged by Mr. Deshpande that it was incumbent upon the petitioner to make a disclosure at the earliest possible opportunity as to .when he came to know of the said defective constitution of the Selection Committee and according to him, in its absence it must be held that the petitioner knew of it before hand. In this respect, Mr. Oka appearing for the petitioner invited our attention to the amendment petition made by the petitioner in the year 1975, We have already pointed out that the ground about the improper constitution of the Selection Committee is inserted in the writ petition by way of amendment in the year 1975. It was Civil Application No. 1393 of 1975 and in this Civil Application for amendment, the petitioner made clear averment, not once but twice, that he could not get this information even before the filing of this writ petition. This application for amendment goes to show that prior to the writ petition, the petitioner made attempts to find out from the respondent No. 1 the necessary record for collecting information in this respect but he was not successful. A reply was filed on behalf of respondent No. 1 and 2 to this amendment application and the averments of the petitioner that he could not get information even before filing of this writ petition go uncontroverted. It is, therefore, apparent that the petitioner came to know of the defect in the constitution of the Selection Committee only after the interview was over and hence there is no force in the contention regarding acquiescence, estoppel, etc. and hence we reject this preliminary objection raised by Mr. Deshpande.

20. Mr. Oka appearing for the petitioner laid stress on the second ground of his attack regarding improper constitution of the Selection Committee. Mr. Oka made a reference to Section 20 Clause XX, which says that subject to such conditions as may be prescribed by or under this Act, the Executive Council shall exercise the following powers and perform the following duties, namely :

(XX) to appoint teachers and servants of the University, fix their emoluments, if any, and define their duties and their conditions of service and discipline.

21. We have reproduced only relevant portion. He then invited our attention to Section 22 Clause (vii) and (xii). Section 22 relates to the powers and duties of the Academic Council and the relevant portion of this section runs as under :

(1) The Academic Council shall have the control and general regulation of, and be responsible fox, the maintenance of the standards of teaching and examinations within the University.

(2) ' Without prejudice to the generality of the foregoing provision, and subject to such conditions as may be prescribed by or under the provisions of this Act, the Academic Council shall exercise the following powers and shall perform the following duties, namely :

(3) to make proposals for the institution of Professorships, Asstt. Professorships, Readerships, Lectureships and any other posts of teachers required by the University, and for prescribing the duties and fixing the emoluments of such posts.

22. Clause (xifi) relates to the general clause regarding the advice to the University on all academic matters.

23. He then invited our attention to Section 16 of the Nagpur University Act, which lays down as to who are the members of the Court of the Nagpur University. He then made a 'reference to Section 29 Clause (xi) and it provides that subject to such conditions as may be prescribed by or under this Act, the Statutes may provide for all or any of the following matters, namely : classification and mode of appointment of teachers of the University etc. All these facts go to show that the professor in the University is appointed by the Executive Council under powers vested in it. Then Section 45 is of some importance for us because Mr. Oka contended that in view of the provisions of Section 45 the constitution of Selection Committee in the instant case is improper. Section 45 of the Nagpur University Act runs as follows :

45(1) No person shall be appointed as a teacher of the University except on the recommendation of a Committee of Selection constituted for the purpose.

(2) The members of the Committee shall be :

(i) The Vice-Chancellor-ex-officio chairman;

(ii) Head of the University Department of teaching concerned and where there is no such Head of the University Department, the Chairman of the Board of Studies in the subject concerned;

(iii) One member having special knowledge of the subject elected by the Executive Council from amongst persons who are not connected with the University;

(iv) Two members elected by the Academic Council, one of whom shall be a member of the Faculty concerned and the other a person not connected with the University having special knowledge of the subject; and

(v) One member nominated by the Chancellor being a person having special knowledge of the subject and not connected with the University,

(3) The Committee shall investigate the merits of the various candidates, including any eminent person who may not have applied, and shall recommend to the Executive Council the names, if any, of persons whom it considers suitable for the posts arranged in the order of merit.

(4) Out of the persons so recommended, the Executive Council shall make the final selection;

Provided that, where the Executive Council proposes to make the appointment otherwise than in accordance with the order of merit arranged by the Committee, the Executive Council shall record its reasons in writing and submit its proposal for the sanction of the Chancellor.

24. This Section, therefore, shows that the Chancellor's nominee is one of the members of the Committee. According to Mr. Oka, the provisions contained in Section 45 are mandatory and not merely directory and, therefore, according to him, any breach of the provisions of Section 45 of the Nagpur University Act renders the Selection Committee illegal and void. In the instant case, it is an admitted fact that the Chancellor had not nominated any member as required by Section 45(2)(v) of the Nagpur University Act and hence according to Mr. Oka, the recommendation made by such Selection Committee is improper and is illegal in view of the mandatory provisions in Section 45 of the Nagpur University Act. Mr. Oka placed reliance upon an unreported decision of Division Bench of this Court in K.H. Deshpande v. Nagpur University (1974) Spl. C.A. No. 993 of 1973 decided on August 19, 1974 by Division Bench of Nagpur (Unrep.).

This ruling clearly supports the contention raised by Mr. Oka. In this ruling also, the Chancellor had not nominated his nominee on the Selection Committee and the Division bench held that the provisions of Section 45 of the Nagpur University Act were mandatory and therefore, recommendation made by the Defective Selection Committee was illegal. Mr. Deshpande appearing on behalf of respondent Nos. 1 and 3 disputed the mandatory nature of the provisions Section 45 and according to him, this section was merely directory. He then relied upon the earlier ruling of P.C. Pande's case (cited supra decided by the Division Bench of this Court on December 8, 1975). It will appear from this ruling also that this Division bench also followed the earlier decision of another Division Bench in K.H. Deshpande's case cited supra. The Division Bench in this case observed as follows :

The provisions of Section 45 of the Act have been held to be mandatory and non-compliance therewith was held sufficient to vitiate the selection made thereunder.

25. It will appear from this Pande's ruling that even on behalf of the Nagpur University, it was contended by Mr. Deshpande, who was appearing for the University in that ruling also, that the provisions of Section 45 were mandatory and this is apparent from page 6 of this ruling. All the same, according to Mr. Deshpande, the Division Bench ruling in K.H. Deshpande's case is per incuriam and it should be reconsidered. We are unable to agree with this contention. According to Mr. Deshpande, the Division Bench was not correct in assuming that the full constitution of the Committee was a Sine qua non for a valid selection of the candidates. It is apparent from this judgment in K.H. Deshpande's case that the Division Bench had considered all points including provisions of Section 59 of the Nagpur University Act and held after considering all pros and cons of the case that the provisions in Section 45 were mandatory.

26. At this stage, Mr. K.H. Deshpande appearing for the University posed a hypothetical problem. According to Mr. Deshpande, if a candidate himself appearing for the interview is the Head of Department of the Department of Teaching concerned, how he could be a member of the Selection Committee? We have pointed out earlier that the Head of Department of the Teaching concerned is also a member of the Selection Committee. According to Mr. Deshpande, therefore, there could be no selection at all in such a case inasmuch as the candidate himself was Head of the Department. According to Mr. Deshpande, if the contention on behalf of the petitioner is to be accepted, it was got to be said that there cannot be any Committee properly constituted at all at any time. Mr. Oka for the petitioner repelled this argument by submitting that even in the circumstances posed by Mr. Deshpande, it cannot be said that the Committee is not constituted at all. Mr. Oka was right when he submitted that the Committee was constituted but by virtue of peculiar position of the candidate himself being the Head of the Departrnent, he was unable to attend the meeting of the Selection Committee. According to Mr. Oka, it is not a case of non-constitution of the Committee ; and hence agreeing with him we hold that there is no force in this contention raised by Mr. Deshpande.

27. It was then urged by Mr. Deshpande that the effect of Section 59 of the Nagpur University Act is not considered by the Division Bench. Section 59 of the Nagpur University Act, 1963 (which was then in force) and which is material for our decision ran as follows :

No act or proceeding of any authority or other body of the University shall be invalidated merely by reason of any vacancy in its membership.

28. It is apparent from the judgment of the Division Bench that the Division Bench has fully considered the effect of Section 59 also. The Division Bench has pointed out that in the Nagpur University Act, the two-words, 'body' and 'committee' are used separately with different meanings in different places and in different sequences and, therefore, the Division Bench held that it cannot be held that the same was saved by Section 59 of the Nagpur University Act. Then a submission was made that the effect of Clause 5 of Statute 54 framed under Section 29(xi) of the Nagpur University Act, was also not considered. This clause provides that three members, of whom at least one is an outside expert of the Committee, shall form a quorum. It is true that this provision Jays down that a quorum of three is sufficient. But it has no effect whatsoever on the statutory provisions of ,s. 45. Mr. Oka was right, when he contended that this provision only refers to the quorum and it has nothing to do with constitution of the Selection Committee. There is no anti-thesis whatsoever in these two provisions. The fact of quorum has nothing to do with a valid constitution of the Selection Committee and hence there is no force in this contention.

29. Mr. Deshpande then relied upon the doctrine of Parliamentary exposition and he urged that in view of this doctrine also, the decision of Division Bench in the case of K.H. Deshpande deserves to be reconsidered. According to him, amendments were made in the then Section 59 of the Nagpur University Act and Section 59 is substituted by Section 85 of the Nagpur University Act, 1974. Mr. Deshpande urged that the substitution of the section in the New Act clearly goes to show the intention of the Legislature indicating thereby that even committees were included in the words 'body' in the then Section 59 of the Nagpur University Act. We have already reproduced Section 59 of the Nagpur University Act earlier and we now reproduce Section 85 as it was originally enacted in the Nagpur University Act of 1974 and this section runs as follows :

No act or proceeding of the Senate or the Executive or Academic Council or any other authority or body of the University shall, at any time, be deemed to be invalid on the ground only that it is not duly constituted or that there is a defect in its constitution or reconstitution, or that there is a vacancy in the membership thereof; and the validity of such act or proceeding shall not be questioned in any Court or before any authority or officer merely on any such ground.

30. It is further an undisputed fact that this Section 85 was subsequently amended first by Maharashtra Ordinance No. 15 of 1975 dated October 8, 1975 which amendment was confirmed by Maharashtra Act No. 60, 1975 dated December 20, 1975 and the amended section now runs as follows :

85, No Act or proceeding of the Senate of the Executive or Academic Council or any other authority or any body or committee of the University shall be deemed to be invalid at any time merely on the ground that :

(a) any of the members of any such authority, body or committee are not elected, appointed or nominated or for any other reason are not available to take office at the time of the constitution or to attend any meeting thereof or any person is a member in more than one capacity or there is any other defect in the constitution thereof or there are one or more vacancies in the offices of members thereof;

(b) there is any irregularity in the procedure of any such authority, body or committee not affecting the merits of the matter, under consideration, and the validity of such act or proceeding shall not be questioned in any Court or before any authority or officer merely on any such ground.

(underlining ours) therein indicated in Italics - Ed.]

31. It is, therefore, apparent that the word 'committee' is added by the Legislature by virtue of amendment of 1975. According to Mr. Deshpande, this amendment was made in consequence of decision of the Division Bench of this Court in K.H. Deshpande's case (cited supra). Hence according to Mr. Deshpande, the word 'committee' must always be deemed to have included in the word 'body' but we have pointed out earlier that the words 'body' and 'committee' are differently used in the Nagpur University Act at different places and they have different meanings and hence -this submission made by Mr. Deshpande is not acceptable on the face of it. In this respect, Mr. Deshpande placed reliance upon some rulings. The first is Gamansinghji v. N.V. Vanlkar : AIR1968Guj242 and reliance is placed on para 7 on page 247. The question before the Gujarat High Court was of interpretation of Section 15 of the Bombay Merged Territories and Areas (jagirs Abolition) Act (43 of 1953). That section provided as per Jagir Abolition Act that every award under Sections 13 and 14 of the Jagir Abolition Act was to be in the form prescribed in Section 26 of the Land Acquisition Act and the provisions of the said Act, so far as may be, were to apply to the making of such awards. The form under Section 26 of the Land Acquisition Act relate to awards in a reference and hence the petitioner contended that by virtue of provisions of Section 15, only those provisions relating to the award in reference alone were applicable to the awards under the Jagir Abolition Act and it was contended that the provisions of Section 11 of the Land Acquisition Act do not apply to such awards. Section 11 of the Land Acquisition Act required previous approval of the State Government or of such superior officers as the State Government may authorise in this behalf for a Collector to make award under that section. Gujarat High Court negatived the contention of the petitioner and held that the provisions of Section 11 also applied to such awards under Jagir Abolition Act and for this purpose Gujarat High Court referred to certain amendments in different Land Tenure Abolition Acts and thereafter made the aforesaid observations and these observations are as follows :

The principle of Parliamentary exposition of a statute is now a well recognised principle of construction and where the meaning of an earlier statute is doubtful, the meaning put upon that statute by the Legislature in the subsequent enactment can certainly be looked at for the purpose of arriving at the correct meaning of that statute.

32. It is, therefore, apparent that there must be an ambiguity about the provisions of the earlier Act and then only reference can be made to amendment. The next ruling is Yogendranath Naskar v. Commissioner of Income-tax; Calcutta (1969) L S.C.C. 555. Reliance is placed upon the following provisions, which are reproduced from a decision in Cope Brandy Syndicate v. I.R.C. (1921) L K.B. 403, and these observations are as follows :

I think it is clearly established in .Attorney-General v. Clarkson that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which 'is to be put upon the earlier act.

33. In this ruling, the question was as to how the word 'individual' used in Section 3 of the Income Tax Act, 1922 was to be interpreted. The Supreme Court held that the word 'individual' includes the deity and for the purpose of fortifying its conclusion, it referred to the Income Tax Act of 1961 and pointed out that its interpretation of the word 'individual' was correct. The appellant assessee in that ruling wanted a restrictive meaning to be given to the word 'individual' in Section 3. The Supreme Court rejected the contention and made the aforesaid observations. We have pointed out that the sine qua non of the application of this principle is ambiguity of the provisions in the earlier enactment. In this enactment, there was ambiguity about the meaning to be assigned to the word 'individual'. In the present case before us, there is no ambiguity in the words of Section 59 of the Nagpur University Act, 1963. The words 'body' and 'committee' are differently used in different senses in the Nagpur University Act and hence the word 'body' in the Nagpur University Act of 1963 can not be said to have included the word 'committee' also in it. As already pointed out in Section 85 of the Nagpur University Act, the word 'committee' is added by amending Act of 1975 and it did not exist even in the original New Act of 1974. In this context, Mr. Oka was right when he urged that the addition of the word 'committee' itself in 1975 went to show that this word could not exist there in the earlier enactment.

34. The next ruling is Pollster Electronic Pvt. Ltd. v. Additional Commissioner Sales Tax : [1978]3SCR98 . Reliance is placed upon para 16 on page 661 and particular reliance is placed upon the following observations :

It is of course true that a parliamentary assumption may be unfounded and an amendment may proceed on an erroneous construction of the statute and, therefore,, it can not alter the correct interpretation to be placed upon the statute; but if there is any ambiguity in the statute, the subsequent amendment can certainly be relied upon for fixing the proper interpretation which is to be put upon the statute prior to the amendment.

35. Thus, here also, it will be seen that the ambiguity in the earlier statute was a sine-qua-non and hence the facts of this case also do not support the facts in the present case. On the other hand, as already pointed out on the strength of the facts of this case, it is not possible to hold that the word 'committee' could be included in the word 'body' in the earlier Act.

36. Then reliance is placed upon State of Bihar v. S.K. Roy A.I.R. [1966] s.C. 1195, Head Note C. It runs as follows :

In the interpretation of Statutes -- obscurity or ambiguity in earlier Act - Subsequent legislation can be looked at to ascertain proper interpretation to be put upon earlier Act.

37. It is, therefore, apparent that there must be obscurity or ambiguity in the earlier Act and then only the subsequent Act can be looked into. And the last ruling on this point is, Sone Valley Cement Co. v. General Mining Syndicate : [1977]1SCR359 and reliance is placed on para 19 on page 862. In this ruling also it is observed that it is a well settled canon that sometimes light may be thrown upon the meaning of an Act by taking into consideration 'parliamentary expositions' as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity. Thus doubt or ambiguity in the earlier Act is a sine-qua-non and we have so far pointed out that there was no doubt or ambiguity whatsoever in the wording of Section 59 of the Nagpur University Act, 1963. Mr. Oka was right when he contended that the word 'committee' was not included in the previous enactment and this fact itself goes to show that the submission of Mr. Deshpande cannot be accepted. There is no ambiguity whatsoever in the pre-amended provisions. In the rulings, on which reliance is placed, there is clear observation that if there is ambiguity in the earlier Act, then only the subsequent Act can be looked into. Hence on the strength of doctrine of the Parliamentary exposition, the Division Bench ruling need not be reconsidered.

38. The result is that the decision of the two Division Benches of this Court that the provision is mandatory remains intact. The situation in K, H, Deshpande's case was similar to the situation arising in this case and it was held therein that the selection was invalid but in the present case before us, before we actually come to such a conclusion and hold the selection invalid, we have to consider certain other contentions raised by Mr. Deshpande.

39. Mr. Deshpande contended that in order that the petitioner should claim a writ of mandamus or certiorari, he must be an aggrieved person and he must have a right vested in him and unless he proves that he was an aggrieved person or his right has been prejudicially affected he can not ask for a relief of mandamus or certiorari. He was right, when he urged that the petitioner must prove that he has a right established in him. He relied upon two rulings. First is Umakant Saran v. State of Bihar : (1972)IILLJ580SC and reliance is placed on following brief note :

In order that mandamus may issue to compel authorities to do something it must be shown that the Statute imposes a legal duty and the aggrieved party had a legal right under the Statute to enforce its performance.

40. The second ruling is Dr. Satyanarayana Sinha v. S. Lal &. Co. : [1974]1SCR615 . The ratio of this ruling is that legal right can be enforced under Article 226 of the Constitution is ordinarily personal or individual right of the petitioner himself though in case of some of the writs like habeas corpus or quo warranto, this rule may have to be relaxed or modified.

41. It will, therefore, be seen that the present petitioner must prove that a legal right is vested in him and that he is an aggrieved person and it is only then he can ask for a declaration that selection and appointment of respondent No. 3 in invalid.

42. It is an admitted fact that additional qualification and specialisation in Entomology was advertised to be an additional qualification essential for the appointment of a professor of Zoology. A true copy of the particulars of qualifications, experience etc., regarding the various teaching posts advertised by the Nagpur University is attached as Annexure 3 -- R II on page 99, where we get the following particulars regarding additional qualifications and specialisation essential for the post of Professor of Zoology :

Specialisation in Entomology, Research experience and experience of guiding, research, Research publications.

43. It is an admitted fact that the petitioner had no qualification of specialisation in Entomology but he had qualification of specialisation in Icthycology. Hence according to Mr. Deshpande, the petitioner had no requisite qualification to make an application for this post and, therefore, he had no right to apply for this post and so he can not challenge the selection of respondent No. 3 and appointment of respondent No. 3 by respondent No. 1. Mr. Oka on behalf of the petitioner does not dispute the proposition that a person who has no right cannot challenge this selection. But according to Mr. Oka his attack is three fold in this respect; (i) insertion of this additional qualification was not permitted by law and rules; (ii) there are malafides of respondent No. 1 in inserting this additional qualification and it was purposely inserted to get the petitioner out of the competitive field and to enable respondent No. 3 to get in; and (iii) there was no nexus of this qualification with the duties of professor of Zoology.

44. Mr. Oka referred to Section 31 Clause (viii) of Nagpur University Act. It runs as under :

Subject to such conditions as may be prescribed by or under this Act, the Executive Council may make ordinances to provide for all or any of the following matters namely :

(i) to (vii) ... (viii) the recognition of teachers of the University and the conditions subject to which persons may be recognised as qualified to give instruction in the University and affiliated colleges :

(ix) to (xiii) ...

45. He then invited our attention to Section 32(1) read with proviso and it runs as follows :

The Ordinances shall be made by the Executive Council :

Provided that no Ordinance concerning the matters referred to in clauses (i), (iv), (v) and (viii) of the last preceding section or any matter connected with the maintenance of the standards of teaching and examinations within the University shall be made unless a draft of the same has been proposed by the Academic Council.

46. It is an admitted fact that such an additional qualification was not mentioned in the two previous advertisements. We have already reproduced the two provisions on which Mr. Oka has placed reliance and relying upon these provisions Mr. Oka contended that the provision for inserting additional qualification must emanate from the Academic Council as provided by proviso to Section 31 of the Nagpur University Act. These provisions are not at all applicable to the facts of the instant case. It is apparent that these are the provisions relating to the recognition of teachers by the University and not relating to the appointment of teachers by the University. There are TWO different provisions in this respect. One is for the appointment of teachers by the University and the other for recognition of teachers by the University. Section 45 of the Nagpur University Act provides for the Committee of Selection for appointment of teachers and undisputedly the word 'teacher' includes professor and Section 46 relates to Committee for recognition of teachers. Section 29 Clause (xi) relates to the classification and mode of appointment of teachers of the University and Section 29(x) relates to the qualifications of professors etc. in an affiliated college and recognised institutions. No similar provisions in respect of the University teachers is pointed out to us. Statute 54 under Section 29 Clause (xi) enumerates classification and mode of appointment of teachers in the University and the grade of professor is_ classified in one of the classifications. Section 31 Clause (ix) relates to term of office, duties and conditions of service of officers and teachers in the University in so far as they are under this Act subject to the control of the Executive Council. Hence no provision is brought to our notice in respect of the contention that the additional qualification inserted has to 'be emanated from the Academic Council and hence we do not find any force in this contention.

47. The next contention of Mr. Oka relates to malafides. According to Mr. Oka, this additional qualification as mentioned in the advertisement is with malafide intentions. According to him, it is purposely inserted in order to get petitioner out of the employment and to enable the respondent No. 3 to get in. There is nothing on record to show that the University had any grudge whatsoever against the present petitioner. It is an admitted fact that on two previous occasions both the petitioner, and respondent No. 3 had applied, had appeared for interview but both were rejected by the Selection Committees. Hence there does not appear to be any special grudge against the present petitioner and similarly there does not appear to be any special favour to respondent No. 3 also. Even without these special additional qualifications the respondent No. 3 could be selected if at all a favour was to be shown to the respondent No. 3 by the University. In this respect, it is worth while to turn to para 11 of the writ petition. The petitioner alleged that this additional' qualification was prescribed malafide with an ulterior motive in order to accommodate the third respondent in the same post and this is denied by respondents 1 and 3 in the return. Then it will be worth while to turn to para 12 of the petition. The petitioner alleged that prior to the issuance of this advertisement on January 29, 1973 the University had addressed a letter to the acting Head of the Department of Zoology and it is an undisputed fact that present respondent No. 3 himself was the then acting Head of the Department of Zoology. It is an undisputed fact that in this letter request was made to let the University know if any specialisation was required for the post of professor of Zoology and it is further an undisputed fact that respondent No. 3 himself informed the University, in the response to its querry, that specialisation in Entomology was one of the qualifications required for the said post. The petitioner alleged that the respondent No. 3 was well aware of the fact that he was to be one of the applicants in pursuance to the advertisement, which would be given in future, and with full knowledge thereof, the respondent No. 3 represented to the University that specialisation in Entomology was necessary qualification for the said post. In para 12 of the return, respondents 1 to 3 have denied this fact. It is admitted that prior to the issuance of the advertisement, a letter was addressed to the head of Department of Zoology. It is further contended by these respondents that in fact such letters were sent not to the Zoology Department alone but were sent to the Heads of all other Departments in the University asking for specifications required for the posts to be advertised. It is further an undisputed fact that one Dr. Khatib was Professor of Zoology and that he retired and that he was possessing specialisation in Entomology. In para 25 of the return, it is stated by these respondents that there was a demand for Entomology and it was for this reason alone that Reader of this Department was also having specialisation in Entomology. In para 27 of the return, it is contended that in order to ascertain the requirement of the University in the 5th Five Year Plan, the Executive Council appointed a Development Committee and the Development Committee at its meeting held on January 6, 1973 invited all Heads of Departments in the University to record their views and it is in pursuance of this that letters were addressed to all Heads of Departments. It is further contended that one of the recommendations for being sent to the State Government was with regards to additional staff required in the subject of Zoology and one post of Professor in Fisheries (Ichthyology) was recommended to the State Government. It is further contended that thus the University had made a proposal for appointment of Professor having specialisation in Fisheries and the petitioner had that qualification and according to the respondent this matter speaks for itself. It is further contended that thereafter, when the question of advertisement for the post of professor in the subject of Zoology came up on account of a permanent vacancy created after the retirement of Professor Khatib, it was resolved to issue advertisement. It is further contended that there were also number of other posts vacant in other departments and the University, therefore, wanted to know the requirements from the Heads of Departments and with this view the University addressed a circular to all the Heads asking for additional qualifications and specialisations required in their respective department. They denied that this circular was sent only to the Department of. Zoology and it is contended that in response to this circular, all Heads of Departments submitted their requirements. They contended further that the respondent No. 1, University, thereafter examined the proposals and the requirements and after satisfaction inserted additional qualification and specialisation in the particulars to be advertised as per Annexure R-l. According to them, the Department of Zoology was not singled out alone in this respect, There is nothing to disbelieve these averments made by the University in the return and all the averments clearly go to show that there must not be any truth in all the allegations made by the petitioner regarding malafides. If the University had any malafides, it would not have recommended the post of Professor of Fisheries, of which, the petitioner was holding specialisation. It cannot be disputed that even with the specialisation in Entomology, the respondent No. 3 could be rejected by the Selection Committee and we have already pointed out that he was actually rejected twice before this occasion even when he was having this specialisation. In this view of the matter, it is not possible to accept the allegations of malafides and about arbitrary conduct of the University in inserting this specialisation. We have already pointed out that the previous incumbent was Dr. Khatib and he was specialised in Entomology. On behalf of the University, Dr. Khatib also has filed -an affidavit, which is at pages 102 and 103 of the petition. In this affidavit, Dr. Khatib has stated that he was the Head of Department of Zoology and when for the first time, the post Graduate Teaching of Entomology was introduced for specialisation in the subject of Zoology for M. So. final degree, the University started post Graduate Teaching Department in Zoology in 1963. He further stated that he was Head of Department from 1965 to 1971 and in his regime, two more branches namely, Ichthyology in 1965 and Anemology in 1971 were introduced. He further stated that Entomology was the oldest branch of specialisation taught in this University initially in the College of Science at Nagpur and later in the Post Graduate Department of the University. There is nothing to disbelieve this affidavit also.

48. A list of persons, who had applied on this occasion, is furnished by the University and it goes to show that in all six persons had applied. The list is at page 72 as Annexure R-3. It shows that besides respondent No. 3, there were two other applicants who had Ph. D. in Entomology and they were Dr. Miss Prabha Cover and Dr. Suresh Chandra Saxena. In view of these facts, it is not at all possible to believe the allegations made by the petitioner that there were malafides on the part of the University in inserting this additional qualification as an essential qualification for the post of professor.

49. It is then contended by the petitioner that such qualification is not necessary for this post. It is not for the petitioner to decide as to what qualification is necessary for a particular post but it is the choice of the University to decide this.

50. It is then urged that specialisation in Entomology did not have any nexus whatsoever with the duties of the professor of .Zoology. This allegation, we find in para 11 on page 9 of the petition. The allegation runs as follows :

The petitioner further submits that the requirement of specialisation in Entomology did not have any nexus with the duties of the post of professor in the subject of Zoology.

51. A reply to this is contained in para 11 of the return at page 46 of the petition and this reply is as follows :

The allegations that it did not have any nexus with the duties of the post of professor in the subject of Zoology are not relevant for the matter in dispute. It is submitted that this respondent never made a claim that any additional qualification has a nexus with the duties of the professor.

52. Additional qualifications are depending upon the requirement of the Department. We have already pointed out that the previous incumbent on this post was Dr. Khatib, who possessed specialisation in Entomology and we have also pointed out from the affidavit of Dr. Khatib that Entomology was the oldest branch in this Department and, therefore, it was in that view that additional qualification of specialisation in Entomology would serve the purpose best. We have pointed out that two more branches viz. Ichthyology and Anemology were also subsequently introduced. Hence it can be said that there are absolutely no malafides whatsoever in the additional qualification being prescribed for the post of professor in that department. We are, therefore, not at all satisfied that there is any force in the contention raised by Mr. Oka.

53. It will, therefore, be seen that we have held that the provisions of Section 45 are mandatory but we have so far pointed out that the petitioner was not eligible for the post and he had no right vested in him for being considered and for being appointed to this post and hence he cannot challenge the appointment of respondent No. 3 and has no right to file this writ petition in this respect.

54. The last question for consideration is about quo warranto writ. We have already pointed out that a quo warranto writ can be asked for by a person even if he has no personal interest in the matter. In respect of this writ, the petitioner's right to file this application is not disputed. Any person can file such a writ, provided the office, that is held by a person falls within the scope of writ of quo warranto. In this respect, one more submission is made by Mr. Deshpande. According to him, the petitioner while challenging the holding of the, post of respondent No. 3 is also challenging the validity of the Constitution of the Selection Committee and according to him, this amounts to collateral attack on the constitution of the Selection Committee and according to him, this is not permissible. In this respect, both sides have placed reliance on some rulings and we shall refer to them.

55. The first ruling that is relied upon on behalf of the petitioner by Mr. Oka is Mrs. Priti Prabha v. Dr. C.P. Singh (1969) L.I.C. (Raj.). This case relates to the appointment of professor of Hindi in Jodhpur University. The Vice Chancellor of the University appointee Dr. C.P. Singh directly without there being any recommendation whatsoever by the Selection Committee and without even constituting any Selection Committee for the purpose of such a recommendation. The Vice Chancellor relied upon an emergency provision in Section 12(5) of the University of Jodhpur Act, 1962 and hence the appointment of Dr. C.P. Singh was challenged by Miss Priti Prabha. The High Court held that there was no emergency and it held further that the appointment of Dr. C.P. Singh was illegal as it was made without any recommendation by the Selection Committee. The High Court made reference to Section 2 and to Section 4. Section 2 runs as follows :

In this Act and in the Statutes unless the subject or context otherwise requires :Teacher includes Professors, Readers, Lecturers and the persons imparting instructions and guiding and conducting research in the University or in any college of institution.

And Section 4 runs as under :

The University shall have the following powers namely :(1) To appoint or recognise persons as Professors, Readers or Lecturers or otherwise as teachers of the University.

56. Then what is relevant for our purpose is para 32 of this judgment. It was observed by the Rajsthan High Court that the office of Professor of, Hindi Department is a high public office and it has been created by statute and it is of a substantive character. This is the only description which clarified on the subject that the professor of Hindi Department in the University of Jodhpur is a public office. As against this, the respondents have relied upon a ruling of Mysore High Court to which we will turn later on. The second, ruling is a decision of Division Bench of this Court in Gajanan v. The Corporation of the City of Nagpur (1980) L.I.C. 167 (Bom). This ruling related to a case of Dean of a Public Hospital and reliance is placed on Head Note H. It runs as follows :

The Dean of a public hospital run by public institution, namely, Corporation, performs the duties which are of a public nature and they would undoubtedly affect a number of persons. The expenditure in connection with the employment of such person would be incurred from out of the public funds or the local authority's funds. Therefore, such person must be said to be holding a public office.

57. There can hardly be any dispute about this proposition but it must be borne in mind that this related to the post of Dean of a Public Hospital, with which, the members of public are concerned every day and hence this ruling is not applicable to the facts of the instant case.

58. As against this, Mr. Deshpande relied upon a number of rulings. The first one is D. Rudriah v. Chancellor, University of Agricultural Sciences A.I.R. [1971] Mys 89. In this ruling, the Mysore High Court observed in para 104 as follows :

The reasoning adopted by the English Courts in the aforesaid two decisions, has equal application when the validity of the statutory provisions under which an appointment or election to a public office, has been made, is questioned in proceedings for QUO warranto.

59. This is on the point of collateral attack as alleged by Mr. Deshpande but we shall point out later on that this is not a case of collateral attack at all as contended by Mr. Deshpande. It is clear from the averments made by the petitioner that the petitioner is not challenging the validity of the constitution of the Selection Committee. What the petitioner is challenging is that the appointment is not made in accordance with law, which requires that the recommendation should be made by a Selection Committee consisting of six persons and according to the petitioner, the persons who were to be appointed as members of Selection Committee were not at all nominated. Hence it is a case of non-appointment of one of the members of the Selection Committee and not a question of validity of the Selection Committee. It is on the strength of this fact that the petitioner is challenging and by no stretch of imagination the petitioner is challenging the validity of the provisions regarding the constitution of the Selection Committee. The petitioner alleges that the provisions of Section 45 are not complied with before making the recommendation; and hence there is no force in the contention of collateral attack. The next ruling is Satyanarayan Sinha v. Lal & Co. : [1974]1SCR615 . In para 10, we get the portion on which reliance is placed by Mr. Deshpande. According to Mr. Deshpande, it is to be considered by the Court whether public interest demands intervention of this Court in setting aside selection and appointment of respondent No. 3 and according to Mr. Deshpande in the instant case, public interest does not demand that this Court should interfere with the selection and appointment of respondent No. 3 inasmuch as respondent No. 3 is doing teaching work to the students in the University and is not doing any public duty.. The next ruling is Ramsingh Saini v. H.N. Bhargave : (1975)IILLJ359SC , but we do not find anything in this ruling, which is relevant on the point in question and hence this ruling is not applicable. The next ruling is P.S. Menon v. State of Kerala : AIR1970Ker165 . In this ruling, several petitions are disposed of and the facts of petition No. 2591/6-6 seem to be of some relevance for our purpose. The petitioner in that ruling was a Judicial Officer from Madras State and the respondents b to 21 were judicial officers from the Travancore Cochin State and Integrated State of Kerala was formed on November 1, 1956 and petitioner and respondents 4 to 21 were allotted by the order of Central Government to Kerala State as judicial officers. In the final seniority list, respondents 4 to 21 were placed senior to the petitioner, although they were placed juniors to the petitioner in the tentative preliminary list. The petitioner challenged this fact and it appears that he asked for quo warranto writ against respondents 4 to 21. It was his contention that the respondents 4 to 21 were not judicial officers at all; and he has given several reasons for the same. We are not concerned with the same. It was contended that prior to November 1, 1956 there was no validly constituted Public Service Commission at all in the erstwhile Travancore Cochin Stae. The Kerala High Court held as follows in para 15 :.

Apart from this, the petitioner cannot in this writ petition be permitted to raise the point that there was no properly constituted Public Service Commission and no properly appointed members thereof as this will amount to a collateral attack on the Public Service Commission and its members.

60. We have presently pointed out earlier that in this case this submission about collateral attack is not at all maintainable. The next ruling is Alex Beets v. M.A. Urmese : AIR1970Ker312 . In this ruling, a writ for QUO warranto was asked for by a medical graduate against an Hon. Medical Officer with certain other reliefs. It was contended that the Government was bound to observe the provisions of Article 16 of the Constitution of India and to advertise invitations for applications thereof, which was not done in that case. It was held that in the absence of such a case in the petition, this could not be urged at the final hearing. Consequently, it was held that a challenge under Article 16 cannot be urged by one who was not an aspirant to the post. It was further held that challenge under Article 16 cannot be heard in a motion for quo warranto and breach of Article 16 can be challenged in a writ of certiorari only and it was further held by the Kerala High Court that possession of a public office under a Government order is not usurpation of office, for which alone quo warranto lies.

61. Then the next ruling is The University of Mysore v. S.C. Govinda Rao : [1964]4SCR575 . But there is nothing particular in this ruling and it only lays down the procedure and the next ruling is Dr. P.S. Venkataswamy v. University of Mysore A.I.R. [1964] Mys. 159. In para 11 of this ruling, the Mysore High Court observed as follows :

In India we have a republican Constitution. Hence in India the nature of office in respect of which quo warranto will lie must be taken to be an office created by the Constitution itself or by any statute and invested with the power or charged with duty of acting in execution or in enforcement of the law.

62. And then this takes us to para 14. Amongst other posts, which were challenged in this ruling were the posts of lecturers etc. but we are not concerned with those posts. We are concerned only with the post of Professor and one of the respondents was holding a post of professor and that was also challenged in that ruling. The Mysore High Court referred to Section 13 of the Mysore University Act, which gives a list of statutory authorities of the University; viz. :

(a) The Senate; (b) The Syndicate; (c) The Academic Council; (d) The Faculties;-(e) The Boards of Studies; (f) The Board of appointments; (g) The Committee of Finance, and (h) Such of other bodies as may be declared by statutes to be the authorities of the University.

63. We find similar provisions in Section 15 of the Nagpur University Act.

The Mysore High Court observed that no declaration under Clause (h) assimilating the position of professors and Readers to a statutory authority of the University has been brought to our notice. The same thing can be said in respect of the present post of professor of Zoology before us. The Mysore High Court further observed as follows :

Nor is there any provision of the Act which enumerates or designates professors, Readers or teachers as statutory functionaries in the same way as functionaries like the Chancellor, Vice-Chancellor, Registrar have been. Professors and Readers of the University clearly do not exercise any Government functions nor are they invested with the power or charged with the duty of acting in execution or enforcement of the law. They are merely employees under a statutory body. They cannot, in any sense be described as public offices in respect of which quo warranto will lie.

64. We have already referred to the ruling of Rajasthan High Court. The Rajasthan High Court has held that it is a statutory post. We are respectfully not in agreement with the said reasoning of the Rajasthan High Court. It is admitted fact that professor is appointed by the Executive Council upon recommendation made by the Selection Committee in that behalf. It is true that professor is appointed under the powers vested in the Executive Council but that by itself does not go to show that the post of professor is a statutory post created by Statute itself. We are in respectful agreement with the observations made by the Mysore High Court and we, therefore, hold that the post of professor in Zoology, with which we are concerned in this case, is not a public office for which a writ of quo warranto can be issued.

65. The last ruling is P.L. Lakhanpal v. A.N. Roy : AIR1975Delhi66 . In this ruling, it was observed by the Delhi High Court that, as there was possibility of the defect being curable by immediate reappointment, a writ of quo warranto would be futile as there was no legal bar to immediate reappointment of present holder and hence writ of quo warranto was not issued. This is not applicable in the instant case. If in the instant case, a writ of quo warranto is issued, we do not know, the. persons, who will be the members of the Selection Committee and whether they would select respondent No. 3 at all and hence this ruling is not at all applicable to the instant case.

66. We have already pointed out that it is not the contention of Mr. Oka that he is challenging the constitution of the Selection Committee but we have also pointed out that he is relying upon the statutory provisions to show that the Selection Committee was not properly constituted as per Section 45 of the University Act. If the petitioner were to challenge the very constitution of the Selection Committee itself, then the ruling on which Mr. Deshpande placed reliance, regarding collateral attack would have been applicable to the facts of the instant case but inasmuch as no such contention is raised by the petitioner, there is no force in this contention raised by Mr. Deshpande, The only contention of the petitioner is that the post is not filled in accordance with the section, which was required to be made in accordance with law. In result, therefore, it will be seen that it cannot be held that the post of professor of Zoology is a public office and, therefore, a writ of quo warranto can not be issued.

67. The result is that there is no merit in this petition and it deserves to be dismissed and is accordingly dismissed. Rule is discharged, but in the circumstances of this case, there will be no order as to costs.


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