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E. Madan Mohan Rao Vs. Registrar, Kakatiya University, Warangal - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition Nos. 1979 and 2032/85
Judge
Reported in(1988)ILLJ65AP
ActsKakatiya University Act - Sections 29; Washhouses Act
AppellantE. Madan Mohan Rao
RespondentRegistrar, Kakatiya University, Warangal
Excerpt:
.....- university published notification in only one national newspaper that too giving just two days time for applying - notification challenged in writ petition - compliance with ordinances was obligatory on part of university - action of statutory corporation may be ultra vires its powers without being illegal - idea for publication in three national newspaper was to attract best talent from anywhere in country - a person after coming to know of notification must have at least few days to gather necessary certificates and send application within time - violation was of serious nature and not marginal, peripheral or insubstantial one - university being 'state' within meaning of article 12 there was clear violation of injection enjoined by articles 14 and 16 of constitution - fact..........above the rank of lecturers of colleges and institutions maintained by the university, (30) clear days time shall be fixed for candidates with application forms from the receiving the effect from the date of the advertisement or notification calling for such applications. the candidates shall be intimated the date of the interview (20) days prior to this date; provided that the period of (20) days shall be reckoned from the two days next after posting of the letters to the candidates, notwithstanding the fact that the candidates is a resident of a country other than india; and also the period of (20) days for such candidates shall be reckoned from two days next after the posting of the air mail letter. the university shall not under any circumstances, be held responsible for the delay.....
Judgment:
ORDER

1. The Ordinances issued under Section 29 of the Kakatiya University Act (Andhra Pradesh Act No. 44 of 1976) require the University to publish the notification calling for applications for appointment to teaching posts in the University 'in atleast three national Newspapers'. The Ordinances further require that thirty clear days' time should be fixed for receiving the application forms from the candidates with effect from the date of advertisement or notification calling for such applications and another period of twenty-two days should be given to the candidates to appear for the interview from the date of posting of call letters.

2. The Kakatiya University issued a notification dated 1st February 1985 calling for applications for as many as twenty-eight posts in fifteen faculties for the categories of Readers and Lecturers. The notifications was published only in one national newspaper, ie., the Indian Express on 28th February 1985. According to the notification the last date for receiving the applications was 2nd March 1985. In other words, the University instead of publishing in atleast three national newspapers published only in one national newspaper and that too giving just two days' time for submitting applications as against thirty days period required by the Ordinances. It is stated that the notification was published in 'Eenadu' on 19th February 1985 besides a local Warangal newspaper, which cannot certainly be called national newspapers.

3. The notification so issued is questioned to these two writ petitions on the ground that the notification issued contrary to and without complying with the Ordinances is void and incompetent and cannot form the basis for making appointment to teaching posts. The petitioner in W.P. No. 1979 of 1985 is an applicant for one of the posts, viz., the post of Lecturer in Economics, while the 2nd petitioner in W.P. No. 2032 of 1985 is an applicant for the post of Reader in Chemistry (General). The first petitioner in W.P. No. 2032 of 1985 is Kakatiya S.C. & S.T. Employees Welfare Association, Warangal. A separate contention is urged in this writ petition, which I shall deal with later.

On behalf of the University, it is not denied that the notification issued by the University is not in accordance with the Ordinances. But it submitted that this Court should not interfere in these writ petitions for the following reasons :

(a) The petitioner in W.P. No. 1979 of 1985 is an applicant for only one post of Lecturers in Economics and notwithstanding the non-compliance with the Ordinances, he was aware of the notification calling for applications and he did apply in time and was also called for interview. He cannot therefore be said to have suffered any prejudice on account of non-publication of the notification in three national newspapers giving thirty days' time. The same is the case with the second petitioner in W.P. No. 2032 of 1985.

(b) A large number of applications have been received for the twenty-eight posts from all over the State and indeed some have been received even from outside the State. Interviews have also been held, for which experts from outside University area had to be invited as substantial cost; if the notification is quashed and the interviews are set aside, the University will suffer grave financial loss.

(c) Unless the appointments are allowed to go though immediately, the sixth plan grants to this University would lapse, which would prejudice the affairs of the University.

5. The Kakatiya University Act has been enacted by the Andhra Pradesh Legislature with a view to establish and incorporate a teaching and affiliating University for certain area in the State of Andhra Pradesh and to provide for matters connected therewith. Section 27 provides for making of the statutes, while Section 29 provides for making of Ordinances. Statutes can be framed, inter alia providing for the classification, the method of appointment and other terms and conditions of service of teacher and other employees of the University. It is however admitted that no such statutes have been framed in this University. Section 29 provides for the issuance of Ordinances. It says that the first Ordinances shall be made by the Vice-Chancellor with the previous approval of the Government during the period of two years immediately after the commencement of the said Act and that the Ordinances so made may be amended, replaced or added to at any time by the Syndicate in the manner prescribed by the Statutes. The Ordinances issued can provide inter alia for the appointment and emolument of teachers and other employees and also such other terms and conditions of service of teachers and other academic staff as are not prescribed by the Statutes (Vide Clauses (i) and (o) in Sub-sec (2) of Section 29). Accordingly Ordinances No. II was issued by the University 'to regulate the procedure to be followed by the Selection Committee for teaching posts formed under Clause (15), item (5) of the Schedule.' (The reference is to Clause 15(5) of the Schedule of the Act, which says, 'the procedure to be followed by a Selection Committee in making recommendations shall be laid down in the Ordinances'). It would be appropriate to set out Rules 1, 2 and 3 of Ordinance No. II. They read thus :

'1. The advertisement for the posts shall be made in atleast three national newspapers.

2. While calling for applications to fill the posts of teachers of and above the rank of Lecturers of Colleges and institutions maintained by the University, (30) clear days time shall be fixed for candidates with application forms from the receiving the effect from the date of the advertisement or Notification calling for such applications.

The candidates shall be intimated the date of the interview (20) days prior to this date; provided that the period of (20) days shall be reckoned from the two days next after posting of the letters to the candidates, notwithstanding the fact that the candidates is a resident of a country other than India; and also the period of (20) days for such candidates shall be reckoned from two days next after the posting of the Air Mail letter. The University shall not under any circumstances, be held responsible for the delay causes by the Postal Department or any other person or agency.'

The language of these Rules is clear and does not require paraphrasing or repetition.

6. It is unnecessary to go into the question whether the Ordinances made under Section 29 amount to delegated legislation or not. For, indisputably, they are binding and have to be followed. In the decisions of the Supreme Court reported in B. S. Minhas v. Indian Statistical Institute, (1984-I-LLJ-67) the Supreme Court held that the bye-laws of the Statistical Institute, though not having the force of law, are yet binding upon the Institute. The following extract from the judgment brings out the point (1984-I-LLJ 67 at 74) :

'The contention of Shri Garg, however, is that the bye-law having no force of statute, non-compliance with its requirement cannot in any way affect the appointment of respondent No. 4 as Director of respondent No. 1. Shri Tarkunde, however, contended that assuming that the bye-law is not statutory, even so respondent No. 1 was bound to comply with it. In support of his contention he strongly relied upon Ramana Dayaram Shetty v. International Airport Authority of India (1979-II-LLJ-217). The Court in that case held (at p. 224) :

'It is a well-settled rule of administrative law that an executive authority must be rigorously held on the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. This rule was enunciated by Mr. Justice Frankfurter in Vitarelli v. Seaton, (1959) U.S. 535 : 3L Ed. 2d 1012), where the learned Judge said :

'An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed. This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with that sword.'

The aforesaid principle laid down by Mr. Justice Frankfurter in Vitarelli v. Section (1959) 359. 3 Law Ed. 2d 1012), has been accepted at applicable in India by this Court in A. S. Ahluwalia v. Punjab State (1975-I-LLJ-228) and in subsequent decision given in Sukhadev v. Bhagatram (1975-I-LLJ-399) Mathew J., quoted above referred observation of Mr. Justice Frankfurter with approval.

'In view of the Pronouncement of this Court on the point it must be held on to be obligatory on the part of respondent No. 1 to follow the bye-laws, if the bye-law have been framed for the conduct of this affairs to avoid arbitrariness. Respondent No. 1 cannot, therefore escape the liable for not following the procedure prescribed by bye-law 2.'

It must therefore he held that the compliance with these Ordinances was 'obligatory' on the part of the University while making appointment to the teaching post in the University.

7. In M. Pentiah v. Veeramallappa : [1961]2SCR295 , the Supreme Court reiterated the law that an action of a statutory corporation may be ultra vires its powers without being illegal and also laid down the principle that when a statute confers an express power, a power inconsistent with that expressly given cannot be implied Paragraph 17 of the judgment is instructive and may be extracted in full :

'In this context learned counsel for the appellant invoked the doctrine of law that an action of statutory corporation may be ultra vires its power without being illegal and also the principle that when a statute confers an express power, a power inconsistent with that expressly given cannot be implied. It is not necessary to consider all the decision cited, as learned counsel for the respondent does not canvass the correctness of the said principle. It would, therefore, be sufficient to notice two of the decisions cited at the Bar. The decisions in Wenlock (Baroness) v. River Dee Co., (1885) 10 A.C. 354, is relied upon in support of the proposition that when a corporation is authorised to do an act subject to certain conditions it must be deemed to have been prohibited to do the said Act, except in accordance with the provisions of that Act which confers the authority on it. Where by Acts 14 and 15 Vict. a company was empowered to borrow at interest for the purposes of the concerned Acts subject to certain conditions, it was held that the company was prohibited by the said Act from borrowing except in accordance with the provisions of that Act. Strongly reliance is placed on the decision in Attorney-General v. Fulham Corporation (1921) 1 Ch. D. 440. There, in exercise of the powers conferred under Bath and Washhouses Acts, the Metropolitan Borough of Fulham propounded a scheme in substitution on an earlier one whereunder it installed a Washhouse for their clothes bringing their own wash material and utilised the facilities offered by the Municipality on payment of the prescribed charges, Sarjant, J., held that the object of the legislation was to provide for persons who became customers facilities for doing their own washing, but the scheme provided for washing by the municipality itself and that, therefore, it was ultra vires the statute. In coming to that conclusion the earlier Judge, after considering an earlier decision on the subject, applied the following principle to the facts of the case before him :

'That recognises that in every case it is for a corporation of this kind of show that it has affirmatively an authority to do particular acts; but that in applying that principle, the rule is not to be applied too narrowly, and the Corporation is entitled to do not only that which is expressly authorised but that which is reasonably incidental to or consequently upon that which is in terms authorized.'

The principle so stated is unobjectionable'.

8. The University is a corporate body and it follows from the above decision that it has to act in accordance with the Ordinances and if it does not do so. The action so taken would be ultra vires its powers and a nullity.

9. Rules 1, 2 and 3 of the Ordinance No. II are conceived in the interests of maintenance of high standards of teaching in the University. Rule 1 specifically and expressly requires that the notification calling for application for appointment to the teaching post should be published in atleast three national newspapers. The idea of this is to attract the best talent from anywhere in the Country. The idea is not to limit the field of selection only to this State or to Warangal District or to Hanumakonda/Warangal town. In this case, no explanation is given as to why it was not possible for the University to publish the notifications in three national newspapers and why it was not possible to provide thirty days' time. One can understand if atleast it was published in three national newspapers and the time actually given was a little less than thirty days. But, in this case, the violation has been of the grossest form. It has been published only in one national newspapers as against the minimum three and three too just two days' time given, making it virtually impossible for any one, not located in Warangal town or nearby, to apply for the said post. Indeed, even a person living in say, Nellore, Visakhapatham or Srikakulam would not have had time to apply within two days, let alone persons living in other parts of India. There may have been intending applicants within this State, who may not know Telgu and therefore may not have been aware of the publication in 'Eenadu', a Telugu daily. Moreover, a person, after coming to know of the notification, must have at lest a few days' time to gather and obtain the necessary certificates, and send the application so as to reach the University within time. And February in 1985 had only 28 days. It is thus clear that the violation in this case is of a serious nature and not a marginal, peripheral or insubstantial one.

10. The Kakatiya University is indisputably a 'State' within the manning of Art. 12. It is therefore under an obligation to observe the requirements of Arts. 14 and 16 of the Constitution. Arts. 14 and 16 require that the State shall provide an equal opportunity to all citizens of this Country in matters relating to employment or appointment to any office under the State. They also require the University to extend equal treatment to all the citizens of this Country. It is evident that in the facts and circumstances of the case, there has been a clear violation of the injection enjoined by Arts. 14 and 16 of the Constitution. In a similar matter reported in B. S. Minhas v. Indian Statistical Institute (supra) the Supreme Court propounded this very principle. In that case, appointment had to be made to the post of Director of the Statistical Institute which was held to be an 'authority' within the meaning of Art. 12. Bye-law No. 2 of the Institute required that before appointing the Director, the vacancy to the post should be suitably publicised. But in that case, no such publication was made. However, a committee of very eminent persons was constituted for making the selection. The selection made by the selection committee was approved by the council and appointment made. This was protested to by the petitioner who ultimately approached the Supreme Court by way of a writ petition. The decision lays down the following propositions which are relevant for the purpose of this writ petition.

1. The bye-laws of the Institute, though not having the force of law, are still binding upon the Institute and it is obligatory upon the Institute to comply with and follow the same. (This principle has already been referred to supra).

2. The compliance with the bye-laws is equally necessary in the name of fairplay. If the vacancy had been published as required by bye-law, all persons eligible for that post could have applied and in that case field of consideration would have been enlarged and the selection committee or the council would have had much larger filed from which it could choose the best available person; and that would have removed all doubts of arbitrariness from the minds of those eligible for that post.

3. It is not the function of the Court to weigh and judge the rival merits of the person selected and person complaining of violation of bye-laws and constitutional obligation. Though the case of the petitioner (in that case) was indeed considered by the selection committee, still the illegality is not removed. 'The members of the selection committee as also the members of the Council were eminent persons and they may be presumed to have taken into account all relevant considerations before coming to a conclusion. But the real difficulty is that in the absence of publicity as contemplated by bye-law 2, it cannot be said that all other qualified persons like the petitioners were also considered by the selection committee for appointment, in the absence of any application by them for the post or any recommendation of them by any other authority or individual.'

4. In as much as there is a violation of bye-law No. 2, and notwithstanding the fact that the case of the petitioner (in that case) was indeed considered by the selection committee, the appointment cannot be sustained because in the circumstances 'it is not possible to say that the members of the council considered the case of the petitioner and other candidates like him before approving the appointment of respondent No. 4'. Even though no mala fides are alleged or established on the part of the selection committee, still the selection was bad.

11. Applying the above principles to the facts of this case, it is evident that even though the petitioner in W.P. No. 1979 of 1985 and the 2nd petitioner in W.P. No. 2032 of 1985 have indeed applied for the said post, and have been interviewed later, the same cannot be said to cure the illegality committed. Many persons all over India, who could have applied if the publication had been properly made in atleast three national newspapers, have been deprived of the opportunity of applying for the said posts. They never knew of such a notification and those who knew had no opportunity or time enough to send their applications before the prescribed date. It is evident that only the persons of Hanumakonda/Warangal town and of that District and some persons of this State alone could apply for the posts. This point is evident from a perusal of the list of applications furnished by the University. In the material papers (set No. 2) the list of applications is appended from page 8 onwards. A perusal of that list shows that an overwhelming majority of the applications is from the Warangal District, and more particularly from Hanumakonda/Warangal. A few of them are from other Districts in the State. Only a very few i.e., not more than ten persons applied from outside the State. But from their names, it appears that almost all of them are from this State. Presumably they would have come to know about the notification from their friends or from other private source from this State and therefore they could apply. It is inconceivable that even though the notification is not published in three national newspapers, all the intending applicants throughout the nation had come to know of the notification and thus had the same opportunity to apply for the said posts as the residents of Warangal town/district or this State, as the case may be. It must therefore be held that there has been a clear infringement of the constitutional mandate enshrined in Arts. 14 and 16, beside the requirements of the Ordinances - and yet this Court is being asked to sustain the said action on certain grounds, which, I shall now proceed to deal with.

12. The first ground urged by Mr. K. Pratap Reddy, learned counsel for the University, is that the petitioner in W.P. No. 1979/85 and the second petitioner in the other writ petition cannot be said to have suffered any prejudice in as much as they did in fact know of the notification and did in fact apply and were also interviewed. It may however be noticed that the present writ petitions were filed even before the interviews commenced. Secondly, as pointed out by the Supreme Court in B. S. Minhas v. Indian Statistical Institute (supra) the fact that these petitioners could apply or that their cases were considered by the Selection Committee is no answer and certainly not a cure for the violation, because other similarly placed persons did never know of it and therefore could not apply for the said posts. The University is not performing a private function while publishing the notification calling for applications for appointment to teaching posts. It is a public function and having regard to the law relating to the corporation as set out by the Supreme Court in M. Pentiah v. Veeramallappa, (supra) it must be held that the notification so published and all the proceedings taken in pursuance thereof are ultra vires the powers of the University. In such a case, the plea of lack of locus standi cannot be entertained in any event after the decision of the Supreme Court in S. P. Gupta and others v. President of India and others, : [1982]2SCR365 . The objection on the ground of locus standi looses all its significance where the function is public in nature. The distinction between an act causing private injury and an act causing public injury is pointed out at page 190 of the report. According to the said distinction the violation committed here is prejudicial to public interest, in which case the question of locus standi has no significance. But even assuming that it is a private injury confined to a particular person, a class or group, still as pointed out by the Supreme Court in B. S. Minhas v. Indian Statistical Institute (supra) the act done in violation of bye-laws and constitutional obligation cannot be saved, even though the case of the person complaining of has in fact been considered. When the object is to attract talent from all over the country, it is not enough to say that because sufficient talent is available within the District or within the State, the Ordinances need not be followed. Mr. Pratap Reddy sought to convince me that among the persons applied, there are several highly qualified persons. May be, but it is not for me to judge their merits. Moreover, it may be that better persons are available than those who actually applied and those persons would have applied if a proper publicity as required by the Ordinances had been given in the notification calling for applications. If the intention of the University is to confine the field of choice to this State, nothing prevented it from modifying or amending the Ordinances. But it is not open for the University to keep the Ordinances, as they now stand, and at the same time flout them and act in total disregard of them.

13. Mr. Pratap Reddy pointed out certain difficulties in the matter of holding the selection. He submitted that for selection in respect of each post, one or two experts have to be called for from outside, that dates of interview have to be fixed keeping their convenience in view and that all the experts have to be brought together at one time, so as to go on with all the interviews at the same time and that because of these practical difficulties it was not possible to comply with the Ordinances. I am unable to appreciate this contention. These difficulties are not peculiar to this University. Every University has the above difficulties, if they can be called 'difficulties'. That is the only mode of making selection and every University complies with the said requirements. It is no answer to call the various requirements of rules as difficulties and thus explain away their violation. It is then stated that these posts or atleast many of the posts now notified have been awaiting appointment since quite some time. If that is so, there is no reason why steps were not taken earlier. Be that as it may, it is not necessary for me to further criticise this line of reasoning, because, as I have stated, the University cannot get away by calling the various requirements of rules as difficulties, nor can it escape their observance by giving them that label.

14. So far as the expenditure which is said to have been already incurred is concerned, I am not prepared to agree that because of that factor, I must refuse to interfere in this case. Such a plea can never be accepted as a justification for the violation of law. Otherwise there would be no meaning in the rule of law or the sanctity of the binding provisions. To illustration. Suppose if the notification was not published in any national newspaper, not even in a local newspaper, and it has been put up only on the notice-board of the University; suppose if some persons had applied, some of whom are quite eligible and well qualified persons, can it be said that because highly qualified persons have applied or because the interviews are held and some expenditure incurred, the violation or non-compliance with the rule should be condoned I suppose not. This argument reminds me of what Lord Denning said in Bradbury v. Enfield Borough, (1967) 3 All E.R. 434. The learned Master of Rolls said :

'I come now to the last point. Ought an injunction to be granted against the Council It has been suggested by the Chief Education Officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places, and so forth. It would be next to impossible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and the public. I must say this, if a local authority does not fulfil the requirements of the law, this Court will see that it does fulfil them. It will not listen readily to suggestions of 'chaos'. The department of education and the Council are subject to the rule of law and must comply with it, just like everyone else. Even if chaos should result, still the law must be obeyed; but I do not think that chaos will result. ..... I can well see that there may be a considerable upset for a number of people, but I think it far more important to uphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. We must see that their rights are upheld. I have only to add this; It is still open to the Council to fulfil the statutory requirements, that is, to give the public notice so that objection can be submitted to and considered by the Secretary of State. I will not venture to predict what the results will be, but that is the least that must be done in order that the law should be observed'.

Regarding the sixth plan grants also, I am not fully convinced. It is always open to the University to take steps immediately for filling up the said posts in accordance with law, and if necessary, ask the Government for exemptions or relaxation, as may be called for. But so far as this Court is concerned, it is not possible to sustain the interviews which are held in pursuance of such a void notification, issued in blatant disregard of the Ordinances and the constitutional obligations.

15. In view of the above conclusion. I do not think it necessary to deal with the specific contention raised in Writ Petition No. 2032 of 1985. The contention is : which post should be reserved for the Schedule Castes. In as much as I am quashing the notification and the interviews held in pursuance thereof, it is not necessary to go into the merits of this contention. It is open to the petitioners in this writ petition to make appropriate representation to the University, and if and when such a representation is made, I have no doubt that the same shall be considered according to law.

16. For the above reasons. Writ Petition No. 1979 of 1985 is allowed. No costs. Writ Petition No. 2032 of 1985 is also allowed to the extent indicated above.


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