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Dr. (Miss) Meena Mukerji Vs. the Chancellor, Allahabad University and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 1834 of 1971
Judge
Reported inAIR1972All381
ActsConstitution of India - Articles 162 and 226; Allahabad University Act, 1921 - Sections 21(1), 24(6) and 42; Allahabad University (Amendment) Act, 1961
AppellantDr. (Miss) Meena Mukerji
RespondentThe Chancellor, Allahabad University and ors.
Appellant AdvocateS.N. Kackkar and ;Ashok Mohiley, Advs.
Respondent AdvocateG.P. Singh, ;Lalji Sinha, ;R.S. Dhawan, Advs. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
constitution - head of department in university - sections 21(1)(j), 24(6) and 42 of allahabad university act 1921 and article 226 of constitution of india - executive council passed resolution that the senior most whole time teacher shall be department head - section 24(6) lays down that senior most teacher shall be head of department - the qualification added by resolution ' whole time teacher' was questioned - section 21(1)(j) provides that council cannot lay down new qualification by itself - chancellor set aside the resolution and on the consequential order of the dean appointed petitioner as head of the department - held, the chancellor had not committed any error of law in the exercise of his jurisdiction under section 42 - petition dismissed. - - in the case of a faculty.....g.s. lal, j.1. this writ petition relates to a matter requiring the interpretation of the allahabad university act and the statutes thereunder. the facts leading to the filing of this writ petition are briefly given below.2. before the amendment of the allahabad university act. 1921 in 1961 by means of the u. p. universities act, 1961 (act no. 13 of 1961), the university was providing the teaching necessary for admission to its various degrees. it had also recognized certain institutions as authorised to provide such teaching. these were privately run colleges and were known under the act as 'associated colleges'. the state government intended to start and run an engineering college and a medical college at allahabad and to secure to the students thereof degrees in engineering and.....
Judgment:

G.S. Lal, J.

1. This writ petition relates to a matter requiring the interpretation of the Allahabad University Act and the Statutes thereunder. The facts leading to the filing of this writ petition are briefly given below.

2. Before the amendment of the Allahabad University Act. 1921 in 1961 by means of the U. P. Universities Act, 1961 (Act No. 13 of 1961), the University was providing the teaching necessary for admission to its various degrees. It had also recognized certain institutions as authorised to provide such teaching. These were privately run colleges and were known under the Act as 'associated colleges'. The State Government intended to start and run an engineering college and a medical college at Allahabad and to secure to the students thereof degrees in engineering and medicine of the Allahabad University. The Allahabad University Act (hereinafter referred to as 'the Act') was therefore amended by the amending Act of 1961 aforesaid to make all necessary provision in this connection and a new class of institutions known as 'Constituent Colleges' was introduced in the Act. According to the newly introduced Clause (aaa) in Section 2, 'Constituent College' means an institution maintained by the University or by the State Government and authorised to conduct all the teaching necessary for admission to a degree of the University. After the amendment of the Act in 1961 and in pursuance of the object of the amendment, the Faculties of Medicine and Engineering were added to the Faculties of the University in statute No. 75 framed in pursuance of Section 24 of the Act which provides that the University shall include such Faculties as may be prescribed by the Statutes. Statute No. 80 lays down the Departments comprised in the various Faculties. In the Faculty of Medicine 15 departments are shown in Clause (el of Statute 80 and these include, at serial No. 11, the Department of Obstetrics and Gynaecology. Section 36-A of the Act provides for Associated Colleges of the University being named by the Statutes. Section 36-AA newly added in the Act in 1961, provides for Constituent Colleges of the University being named by the Statutes. Statute 145-A framed in pursuance of Section 36-AA named only Moti Lal Nehru Medical College as a Constituent College. It is not in controversy that it is a Constituent College maintained by the State Government and not by the University. In the list of Associated Colleges named by Statute No. 146 the Motilal Nehru College of Engineering Allahabad was added. Thus this College, started by the State Government, was made only an Associated College.

3. There was running at Allahabad the Kamla Nehru Memorial Hospital maintained and managed by a Society known as Kamla Nehru Memorial Trust. It was already receiving a recurring grant in aid amounting to Rs. 1,05,000/- per annum from the State Government. Its Superintendent was Dr. Mrs. Vatsala Samant who is opposite party No. 2 in the writ petition. For providing teaching in the Department of Obstetrics and Gynaecology a female hospital was needed. The State Government made an arrangement with the Kamla Nehru Memorial Trust. The said arrangement is to be found embodied in Annexure A to the representation made by Dr. Mrs. Samant to the Chancellor, Allahabad University, under Section 42 of the Act. A copy of the representation is Annexure 1 to the writ petition. Annexure A to Annexure 1 shows that with effect from February 1, 1964. 75 general beds out of the then existing beds of the K.N.M. Hospital were to be utilised for teaching the subject of Obstetrics and Gynaecology to the students of Moti Lal Nehru Medical College. They were to be maintained out of Government grant. For that purpose the State Government sanctioned a further recurring grant-in-aid amounting to Rs. 25,000/- for a period of two months only in the first instance, that is to say, for February and March, 1964. A further grant of Rs. 920/- (recurring) was sanctioned for the said two months. This was for payment of honorarium to Dr. Samant at Rs. 250/- per month and to her Assistant Doctor at Rs. 150/- per month for two months and Rs. 120/- for the installation of a telephone. A non-recurring grant of Rs. 1,96,600/- was also made to provide for a large size lift, residential quarters, etc. It was provided that the administration of the aforesaid 75 beds would continue to be vested in the Trust. Those 75 beds would be divided into two units. One unit would be put in the charge of the Medical Superintendent of the K.N.M. Hospital who would be assisted in that work bv her assistant doctor and the other unit would be under the charge of the whole-time Professor of Obstetrics and Gynaecology appointed by the State Government who would be assisted by a Reader or a Lecturer. It was further provided that the then existing Superintendent of the K.N.M. Hospital, Dr. Vatsala Samant, would be designated as 'Honorary Professor and Head of the Department of Obstetrics and Gynaecology' and her assistant doctor as 'Honorary Lecturer in Obstetrics and Gynaecology' and they would be paid an honorarium of Rs. 250/-per month and Rs. 100/- per month respectively from the grant-in-aid to be given to the K.N.M. Trust. The hospital would remain under the overall charge of the Medical Superintendent as before but in her absence the whole-time Professor of Obstetrics and Gynaecology at the Moti Lal Nehru Medical College would act as Medical Superintendent. Actually no whole-time Professor of Obstetrics and Gynaecology was appointed in the Moti Lal Nehru Medical College before March. 1968. It was only in March. 1968 that the petitioner Dr. (Miss) Meena Mukerji was appointed as the whole-time Professor of Obstetrics and Gynaecology in the said College.

4. Sub-section (6) of Section 24 of the Act provides that there shall be a Head in each Department of teaching who shall be responsible to the Dean for the organisation of the teaching in the Department. Dr. Samant being the only Professor in the Department of Obstetrics and Gynaecology, she acted as the Head of the Department for all purposes under the Act and the Statutes. As to the Dean of the Faculty of Medicine it was provided by Statute 23-A that the office of the Dean in the Faculty of Medicine shall be held ex-officio by the Principal of Moti Lal Nehru Medical College and in the absence of the Principal, the senior-most Professor of the College would act as the Dean. Dr. Samant continued to act as Head of the Department of Obstetrics and Gynaecology after the petitioner joined as Professor in that Department. Dr. Samant got from the K.N.M. Trust an extension in service in the year 1967-68 to continue beyond the age of 58 years. The Trust granted her yet another extension beyond the age of 60 years in January. 1970. The petitioner who, according to paragraph 13 of the writ petition, had put up with the unsatisfactory position of Dr. Samant continuing to act as Head of the Department even after the petitioner had joined as whole-time Professor in the Department, in the hope that 'the deprivation of her lawful rights to be the Head of the Department was shortly going to end', made a representation to the Vice-Chancellor of the Allahabad University when the second extension was granted to Dr. Samant by the K.N.M. Trust. The representation was to the effect that she should be designated as Head of the Department, being a whole-time Professor in the subject. A copy of the representation is Annexure B to Annexure 1 (the representation of Dr. (Mrs.) Samant to the Chancellor). The representation was forwarded by the Dean of the Faculty of Medicine (that is to say. the Principal of Moti Lal Nehru Medical College) to the Vice-Chancellor in January. 1970. the forwarding letter being Annexure C to Annexure 1. On the representation being placed before the Executive Council of the University, the Executive Council passed on 27-2-1970 a resolution in the following words:--

'Resolved that a senior most whole-time teacher of a Department in a constituent college shall be considered the Head of the Department'.

In pursuance of the said resolution the Dean of the Faculty of Medicine informed Dr. (Mrs.) Samant that in view of the resolution passed by the University the petitioner would be considered Head of the Department of Obstetrics and Gynaecology for the purposes of University work, she being the senior most whole-time teacher of that Department.

5. In view of the resolution and the information given by the Dean as aforesaid. Dr. (Mrs.) Samant filed writ petition No. 950 of 1970 in this Court which was admitted on 5-3-1970. The Allahabad University. Dr. Pritam Dass, Dean of Faculty of Medicine, Dr. (Miss) Meena Mukerji and the Executive Council of the University were impleaded as opposite parties Nos. 1 to 4. At the instance of the learned Single Judge, Hon'ble T. Ramabhadran. J. before whom the writ petition came up for hearing the State of Uttar Pradesh was also impleaded later as opposite party No. 5. At the time of the admission of the writ petition the operation of the resolution of the Executive Council was also got stayed by the Court. The writ petition was however dismissed on 16-10-1970 by the aforesaid learned Single Judge.

Dr. (Mrs.) Samant filed special appeal No. 864 of 1970 against the dismissal of her writ petition but she could not get a. stay order in the special appeal in respect of the operation of the resolution, The special appeal came before a Bench on 10-11-1970 for final hearing. Hearing was continued on 11-11-1970. Since Dr. (Mrs.) Samant had not availed of the remedy under Section 42 of the Act, that fact was being pleaded on behalf of the present petitioner as a bar to the entertainability of the writ petition. On behalf of Dr. Samant, time was asked for Irom the Court to enable her to make a representation to the Chancellor under Section 42 of the Act. Time was granted by the Bench, whereafter Dr. (Mrs.) Samant made a representation (as per Annexure 1 to the writ petition) to the Chancellor. A copy of the order of the Bench is Annexure D to Annexure 1. The Chancellor passed some stay order and Dr. (Mrs.) Samant was then allowed to act as if she was the Head of the Department. Dr. (Miss) Meena Mukerji filed a reply to Dr. Samant's representation to the Chancellor, copy of which is Annexure 3 to the writ petition. The Chancellor then passed on 7-3-1971 an order (copy is Annexure 4 to the writ petition) allowing the representation of Dr. (Mrs.) Samant and setting aside the decision of the University contained in the aforesaid resolution of the Executive Council, as also the order of the Dean passed as a consequence to that resolution, holding that the resolution was beyond the powers conferred on the Executive Council and on the Dean under the Act and the Statutes and Ordinances made under the Act. It was in consequence of the said order of the Chancellor that the writ petition under judgment was filed by Dr. (Miss) Meena Mukerji on 21-3-1971, setting out the relevant facts mentioned above and praying for the quashing of the order of the Chancellor by the issue of a writ in the nature of certiorari and also praying for the issue of a suitable order or direction in the nature of mandamus commanding the respondents not to give effect to the Chancellor's order and to treat the petitioner as Head of the Department of Obstetrics and Gynaecology in the Moti Lal Nehru Medical College. She impleaded the Chancellor of the University. Dr. (Mrs.) V. Samant, The University of Allahabad and Dr. Pritam Dass. Dean of the Faculty of Medicine, as opposite parties 1 to 4.

6. The writ petition has been contested by Dr. (Mrs.) Samant who has filed a counter-affidavit. Another counter-affidavit has been filed on behalf of the University by the Registrar thereof, but the counter-affidavit supports the stand taken by the petitioner against the order of the Chancellor. The petitioner filed a rejoinder affidavit.

7. We have heard Sri S.N. Kackker for the petitioner, Sri S.C. Khare for Dr. (Mrs.) Samant. and Sri G. P. Singh for the Allahabad University. The special appeal has also been listed before us for hearing. Therein a request has been made on behalf of the appellant Dr. (Mrs.) Samant that in view of the relief which she has been able to secure from the Chancellor, she may be allowed to withdraw the writ petition and the appeal. This request has been opposed by the learned counsel appearing for Dr. (Miss) Meena Mukerji but it has been agreed that in case the writ petition is not allowed to be withdrawn the arguments addressed on the writ petition should also be taken to be the arguments for the purposes of the special appeal. We propose to pass a separate order in the special appeal.

8. The order of the Chancellor impugned in the writ petition has been made under Section 42 of the Act. That section provides that if any question arises whether any person has been duly elected or appointed as, or is entitled to be, a member of any authority or other body of the University, or whether any decision of the University or any Authority thereof is in conformity with that Act, the Statutes and the Ordinances, the matter shall be referred to the Chancellor whose decision therein shall be final. In this case Dr. (Mrs.) Samant raised a question before the Chancellor whether the resolution of the Executive Council passed on 27-2-1970, which affected her adversely, was in conformity with the Act and the Statutes and the Chancellor has found the resolution to be without jurisdiction and has set aside the resolution and the consequent order of the Dean of the Faculty of Medicine dated 28-2-1970. It is not in dispute that the Chancellor has exercised the jurisdiction vested in him under the Act. The challenge is to the correctness of the decision. It is obvious that under Article 226 of the Constitution this Court will quash the decision of the Chancellor only if the decision is found to contain any manifest error of law or to be otherwise manifestly unjust.

9. The resasoning of the Chancellor in holding that the resolution was beyond the powers conferred on the Executive Council is that the Act observes a distinction between a constituent college maintained by the University and the constituent college maintained by Government; that in respect of the latter the Government is fully competent to lay down the terms and conditions of service of teachers that it chooses to employ subject, of course, to any statutory restrictions in this behalf; that the University is a corporate body and its powers have to be strictly construed; that no statutes relating to the constituent colleges maintained by the Government have been made so far and the Statutes carrying the heading 'Seniority of the teachers of the University' have no application to teachers of constituent colleges maintained by the Government. The further argument is that the expression 'teachers of the University' has been denned in the Act and it cannot include teachers in a constituent college not maintained by the University and so Sub-section (6) of Section 24 of the Act is not applicable to Heads of Departments of the constituent college maintained by the Government and that accordingly, in the absence of any specific provision of the Act, the Statutes or Ordinances to control or override the Government's executive power under Article 162 of the Constitution or its power as an employer, the decision of the Executive Council must be held to be without jurisdiction.

10. Contrary to the above reason-Ing the contention on behalf of the petitioner is that Section 24 (6) of the Act is applicable to all Heads of Departments whether in the University or in a constituent college and under that provision the senior-most teacher in a Department is to be the Head of the Department. Since the Act and the Statutes do not contemplate there being Honorary Professors holding any office or there being other than whole-time Professors, the question as to who is the senior-most teacher is to be determined with reference only to whole-time teachers. A further contention is that the Faculties, Academic Council and other authorities are all of the University and Heads of the Departments are constituents thereof and it is therefore the University which can decide without the intervention of the State Government as to who will be recognized as the Head of a particular department for the purposes of being a member of the concerned Faculty, etc. It is finally urged that even if Section 24 (6) does not apply to heads of departments in a constituent college maintained by the Government, the Executive Council was competent under Section 21 (j) of the Act to pass a resolution of the kind which was passed on 27-2-1970 and which has been set aside by the Chancellor. It is to be examined whether these contentions have substance.

11. It is not in controversy that Dr. (Mrs.) Samant is a wholly Honorary Professor in the Moti Lal Nehru Medical College. Even the honorarium of Rupees 250/- which she gets for this extra work is not received by her from the Government. As is her own case, she gets it from the Kamla Nehru Memorial Trust of which she is an employee. It is a different matter that the State Government includes in its grant-in-aid to the Trust a sum equivalent to the honorarium which the Trust pays to Dr. (Mrs.) Samant and a junior doctor who assists her. There is some controversy as to whether Dr. (Mrs.) Samant is a whole-time Professor or not. She claims to be so. But it is obvious that she is not a whole-time professor in the Medical College, She is a whole-time employee of the Trust and works as a doctor and Superintendent of the K.N.M. Hospital. The teaching work which she does in the Medical College is a part-time honorary iob permitted by the Trust to be performed by her. It may be noted at this place that for the purposes of this case the fact of Dr. (Mrs.) Samant being an Honorary Professor is not material since the Executive Council's resolution does not deal with that matter. What is material in giving effect to that resolution is that she is not a whole-time Professor. In the course of the arguments reference was no doubt made by the learned counsel for the petitioner to the classification of teachers of the University contained in Statutes 122 and 123 and it was pointed out that these statutes do not contemplate the appointment of Honorary Professors except Honorary Emeritus Professors for work mentioned in Item (II) of Clause f2) of Statute 123. with the qualification that such Professors shall not be eligible to hold any office. Apart from the fact that those Statutes relate to 'teachers of the University' and not to teachers of a constituent college maintained by the State Government, it is to be noted that the scope of the writ Petition is limited to a consideration of the validity of the order of the Chancellor setting aside the resolution of the Executive Council to the effect that the senior-most whole-time teacher of a Department in a constituent college shall be the Head of that Department. The resolution does not rule out an honorary teacher from being the Head of a Department in a constituent college but requires him to be a whole-time teacher. What is therefore needed to be considered is whether the Executive Council had the jurisdiction and power to lay down by resolution that requirement in regard to the Heads of Departments in a constituent college.

12. It has been asserted in the writ petition that it was within the jurisdiction of the University to decide as to who would be the Head of a particular Department in a Faculty of the University and the Government had no say in the matter; that at any rate Clause (it of Section 21 authorised the Executive Council to determine as to who would be the Head of a Department in a constituent college; and, in any case, the Executive Council could pass a resolution on the pattern which is contained in Section 24 (6) of the Act.

The aforesaid provisions are reproduced for convenience:--

'21

Powers and duties of theExecutive Council.

(1) Subject to the provisions ofthis Act and the Statutes, the Executive Council shall havethe following powers and duties, namely -

(a) ...........................

(j) to regulate and determineall matters concerning the University in accordance with this Act. theStatutes and the Ordinances and to exercise such other powersas may be conferred or imposed on it by this Act and the Statutes.

'24 TheFaculties.

(1) The University shallinclude such Faculties as may be prescribed by the Statutes.

(2) Each Faculty shallcomprise such Departments of teaching as may be prescribed by the Statutes. Subjects ofstudy shall be assigned to various Departments by the Ordinances.

(3) There shall be aBoard ofeach Faculty the constitutions and powers of which shall beprescribed by the Statutes.

(4) There shall be aDean of each Faculty who shall be chosen in each manner and for such period as maybe prescribed by the Statutes.

(5) The Dean shall bethe Chairman of the Board of the Faculty and be responsible for the dueobservance of the Statutes. Ordinances and Regulations relating to the Faculty. He shall befurther responsible for the organization and conduct of the teaching andresearch work of the Departments comprised in the Faculty.

(6) There shall be aHead in each Department of teaching who shall be responsible to the Dean for theorganization of the teaching in the Department. The senior-most teacher ofthe University in the Department shall be the head of the Department'.

It cannot be denied that if any question arises as to who is the Head of a Department in any Faculty of the University the matter can be considered and decided by the Executive Council under Section 21 (1) fi) of the Act (reproduced above). But the decision must be in accordance with the provisions of the Act, the Statutes and the Ordinances. The argument of the learned counsel for the petitioner is that the Act and the Statutes at least implied-lv lay down that whole-time teachers alone can be Heads of Departments and primarily the resolution of the Executive Council is only a clarification of that position. The alternative argument is that on a matter on which the Act or the Statutes have not made provision, the Executive Council could lav down as to how that matter would be regulated.

13. It is in connection with the first part of the aforesaid argument that reliance is placed upon Section 24 (6) of the Act and Statute No. 217 which confers power on the Executive Council to decide cases of doubt regarding seniority. Section 24 of the Act quoted above deals with Faculties and as part of what it lays down in regard to the Faculties, there is the provision in Sub-section (61 consisting of two parts. The first part lays down that there shall be a Head in each Department of teaching who shall be responsible to the Dean for the organisation of the teaching in the Department. The second part lays down that the senior-most teacher of the University shall be the Head of the Department. It would look idle to contend that sub-section (6) of Section 24 does not apply at all to constituent colleges. In the case of a Faculty like the Faculty of Medicine in which teaching is imparted only in a constituent college, there must be a Head in each Department in the College, for a perusal of Clause (ix) qf Section 17 (1) will show that the Act specifically contemplates there being Heads of Departments of teaching in the constituent colleges as well. The Statutes also contemplate there being Heads of Departments in Moti Lal Nehru Medical College. For example, Statute 79-A provides for the composition of the Board of Faculty of Medicine and along with others all Heads of Departments in the Moti Lal Nehru Medical College will constitute the Faculty. Similarly under Statute 69, the Academic Council' shall include all Heads of Departments of Moti Lal Nehru Medical College amongst others. These provisions make it obligatory for there being a Head in each Department of teaching in the Moti Lal Nehru Medical College. There is no reason why the first part of Section 24 (6) be not held to apply to the Moti Lal Nehru Medical College as well. As to the second part, no doubt, the matter is open to controversy, for the expression 'teacher of the University' has been defined in Section 2 of the Act upon its amendment in 1961. That expression does not include teachers in a constituent college maintained by the Government. The contention on behalf of the petitioner is that as the opening words of Sub-section (2) show, the expressions defined will have the meanings given to them in the section unless there is anything repugnant in the subject or context. The argument of the learned counsel for the petitioner is that the expression 'teacher of the University' in Section 24 (6) should be given a general meaning and not that given in the definition because unless that is done, there will be no provision for determining the Head of the Department in a constituent college not maintained by the University. In other words, the contention is that out of necessity the meaning given in the definition is excluded. It is also open to argue that the word 'teacher' should by itself be given the meaning contained in the definition of 'Teacher' in Clause (h) of Section 2. 'Teacher' there means a person employed by the University, a College, an Associated College, a Constituent College or a hostel, for giving Instructions or guiding or conducting research in any subject of the courses of study taught therein. The words 'of the University' it may be suggested, should be taken to relate to the college, associated college, constituent college or hostel under the University. It has been further argued that in any case by analogy the provision in the second part of Section 24 (6) will apply to the Moti Lal Nehru Medical College. We however find that nothing turns upon the answer to the question whether the said second part applies to the Moti Lal Nehru Medical College or not for that second part lays down nothing more than that the senior-most teacher of the University in the Department shall be the Head of the Department. By itself this second part can raise no doubt about Dr. (Mrs.) Samant being the Head of the Department, being senior to the petitioner. It is not the case of the petitioner that she is the senior-most teacher in the Department of Obstetrics and Gynaecology even if her qualification of being a whole-time teacher is not taken into account. In any case, the impugned resolution has neither the effect of laying down that the petitioner is in seniority the senior-most teacher in that Department of the Medical College nor does it purport to have been passed in exercise of the power conferred by Statute 217 referred to above. It is the word 'whole-time' in the resolution on account of which Dr. (Mrs.) Samant became disentitled to continue as Head of the Department and the petitioner was asked to act as the Head of the Department of Obstetrics and Gynaecology being the only whole-time Professor in the Department. It may be noted that in her representation to the University (See Annexure B to Annexure 1 to the writ petition) the petitioner had not claimed to be senior as professor to Dr. (Mrs.) Samant. Her claim to be regarded as the Head of the Department was based on her position of 'being a whole-time Professor and greater teaching experience outside Moti Lal Nehru Medical College and greater qualifications. Section 24 (6) does not make use of the word 'whole-time' before the word 'teacher' and it does not therefore restrict the holding of the office of the Head of a Department to whole-time teachers only.

14. On the point whether there is otherwise any implied provision in the Act for only whole-time teachers being Heads of Departments, the learned counsel for the petitioner could point out no provision in the Act itself which would convey the existence of that qualification. Section 29 which deals with teachers does not itself require the appointment of only whole-time teachers or the holding of the office of Head of Department by only whole-time teachers. Coming to the Statutes, Statute 123 permits appointment of part-time teachers. Though the Statute prohibits Honorary Emeritus Professors from holding any office, it does not lay down any such prohibition in the case of part-time teachers. Thus the Act and the Statutes do not expressly or impliedly require that only a whole-time teacher can be the Head of a Department. In this situation it can very well be argued on behalf of Dr. (Mrs.) Samant that the State Government could designate her as Head of the Department of Obstetrics and Gynaecology since she was then the only Professor in the Department and it was necessary that there should be a Head of that Department to meet the requirements of the Act and the Statutes, there being no provision in the Act or the Statutes at the time of her appointment or even upto the time before the passing of the resolution to indicate as to who would be the Head of each Department in the Moti Lal Nehru Medical College. Even supposing Section 24 (6) applies in full either in itself or by analogy, it can very well be argued on her behalf that she is senior to the petitioner, having been appointed in 1964 when the petitioner was appointed only in 1968, and thus she fulfils the requirements of Section 24 (6).

15. The last point to be considered is whether the Executive Council could by itself and by resolution lay down that in a constituent college only the senior-most whole-time teacher of a Department shall be considered the Head of the Department. The learned counsel for the petitioner has, as mentioned earlier, relied upon Clause (j) of Section 21 (1) of the Act as the sanction or authority enabling the Executive Council to make such provision in the absence of anything in the Act to regulate the appointment of the Heads of Departments in constituent colleges. We are unable to accept the contention that that provision is capable of conferring that power. The function of regulating and determining all matters concerning the University is to be done in accordance with the Act, the Statutes and the Ordinances. Laying down a new qualification in the case of a constituent college for a teacher being the Head of a Department, that is to say, the qualification of being a whole-time teacher, is departing from the existing Scheme of the Act and the Statutes which do not lay down any such qualification for teachers of the University. It means adding to them. It amounts to usurping indirectly the power of making statutes, which power belongs to the Court of the University. Section 29 of the Act makes provision in regard to appointment of teachers. Sub-section (1) thereof relates to appointment of teachers of the University and the Associated Colleges, Sub-section (4) of that section reads:--

'(4)-- Principals and teachers other than teachers referred to in Sub-section (1) shall be appointed by the authorities and in the manner to be prescribed by the Statutes'.

So the case of a Principal or the teachers of a constituent college maintained by the Government will be governed by subsection (4) of Section 29 and their appointments will be regulated by Statutes. The Court has not yet made any statutes. The Executive Council cannot do so by a resolution. The Statutes may possibly provide that in a constituent college only whole-time teachers will be employed or that an honorary teacher will not be employed or will be employed only for a limited nature of work and will be ineligible for holding an office. Similarly, and even if the University thinks that the second part of Sub-section (6) of Section 24 applies also to a constituent college maintained by the Government, the Court, but not the Executive Council, can, by way of abundant caution, make a statute in exercise of its general power under Section 30 to make statutes to provide for any matter relating to the University, that the senior-most teacher in a Department in a constituent college shall be the head of the Department. Having regard to the above reasons, it cannot therefore be said that the Chancellor committed any error in setting aside the resolution of the Executive Council and the consequential recognition of the petitioner in place of Dr. (Mrs.) Samant as the Head of the Department of Obstetrics and Gynaecology.

16. Learned counsel for the petitioner has pointed out that under the impugned order of the Chancellor, the Government has been held to be entitled, as an employer, and under its executive powers under Article 162 of the Constitution, to lay down the terms and conditions of service of teachers that it may choose to employ in a constituent college and it implies that the Government, can also name a teacher as Head of the Department in which he teaches. No such absolute rule has been laid down since it has been said that unless there is some specific provision in the Act, the Statutes or the Ordinances, such powers will not be exercised by the Government. All the same, the question of designating a person as Head of the Department for the purposes of the Act stands however on a different footing from the terms and conditions of employment. As to who is to be recognised as Head of the Department in a constituent college is an affair of the University, to be determined on the basis of the Act and the Statutes. If| the second part of Section 24 (6) be taken not to apply, even then, in the absence of any provision in the Statutes on the subject, the senior-most teacher in a Department in a constituent college will be the Head of the Department having regard to the scheme of the Act and the Government cannot be regarded as having the power to designate a teacher as Head of a Department at its sweet-will for the purposes of the Act. It appears that when Dr. (Mrs.) Samant was appointed Honorary Professor in the Department of Obstetrics and Gynaecology, she was the only Professor and was bound to be the Head of that Department under the scheme of the Act itself and Government gave her that designation as it wag too obvious that she would be the Head of the Department. She was accepted by the University to be so for the same obvious reason, but the right to designate any teacher as a Head of a Department cannot vest in the Government by reason of its executive power. If the contrary is taken to be the position, then carried to its logical conclusion, there would be no bar to the State Government designating even the junior-most teacher in a Department as the Head of the Department. The error in the reasoning does not however affect the ultimate decision of the Chancellor which, for the reasons given above, cannot be regarded as incorrect.

17. In the grounds listed in the writ petition a reference has also been made to the fact that Dr. (Mrs.) Samant was to retire on attaining the age of 58 years under the terms of the employment with the Trust and the Government order has therefore to be read in the light of the terms of the employment then subsisting and a subsequent unilateral extension of age and service granted by the Trust could neither oblige the Government nor the University to continue to treat Dr. (Mrs.) Samant as Head of Department of Obstetrics and Gynaecology. The age of retirement of a teacher of the University is 62 years. There can therefore possibly be no ground for the University to take objection to the continuance of Dr. (Mrs.) Samant as Professor at least till she has not crossed the age of 62 years. The arrangement between the Government and the K.N.M. Trust is that one unit out of 75 beds will remain under the charge of the Medical Superintendent of the K.N.M. Hospital and Dr. Samant continues to be the Medical Superintendent and it cannot therefore be said that her continued appointment as Honorary Professor is against the arrangement between the aforesaid two parties. Even assuming that the Government understood that Dr. (Mrs.) Samant would retire at the age of 58 years and she would be the Head of the Department till that age only, it was a matter between the Government and the Trust to settle. The Government is however continuing to accept the position of Dr. (Mrs.) Samant as Professor and Head of Department of Obstetrics and Gynaecology. The petitioner has no right to question the continuance of Dr. (Mrs.) Samant as Professor after the attainment of the age of 58 years or even 60 years. Grounds Nos. 12 and 14 have therefore no effect for that very reason, apart from their irrelevancy to the question of validity of the Chancellor's impugned order.

18. In the result the writ petition is dismissed. However, as it was filed after a decision had been given in favour of the petitioner by a learned single Judge of this Court in the case arising from the writ petition of Dr. (Mrs.) Samant, we make no order as to costs.


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