G. Varandani v. Kurukshetra University And Another

S. Rajendra Babu, J.— Special leave granted in SLPs (C) Nos. 22833 and 21612 of 1997.

2. The above appeals have been filed by one or the other of the parties before the High Court against the decision rendered in this group of cases. So far as CA No. 8703 of 1997 is concerned, it is against the decision in CWP No. 15256 of 1996, which came to be disposed of on 5-8-1997 by an order, “For orders, see CWP No. 18312 of 1996.” While dealing with the case in CWP No. 18312 of 1996, the Division Bench made the observation even at the threshold that the said judgment shall dispose of Civil Writ Petitions Nos. 14263, 16256, 16005 and 18312 of 1996 as the question of law canvassed is identical and the facts alone are taken from CWP No. 18312 of 1996 filed by one Sunil Deshta.

CA No. 8703 of 1997: this is against the order in CWP No. 15256 of 1996

3. As on 21-1-1994 the appellant in this appeal was serving as a confirmed Reader in the Faculty of Law of Kurukshetra University, when he applied for selection to the post of Professor at the Kurukshetra University Postgraduate Regional Centre, Sirsa, in terms of the advertisement issued inviting applications therefor on 27-7-1994. This appellant was said to have been selected as a Professor for the Law Faculty Centre at Sirsa and was placed in charge of the Centre, by their regular appointment letter dated 15-8-1994 placing him on probation for a period of one year with effect from the date of joining. The pay scale offered and the allowances admissible as per the University Rules for the Postgraduate Regional Centre, Sirsa/Hissar etc. were also indicated therein. While so, on 29-12-1995 the appellant came to be appointed as Dean, Faculty of Law, at the said Centre for a term of three years w.e.f 1-1-1996 to 31-12-1998. On 2-7-1996, it appears that the appellant's confirmation as Professor-in-charge of Law at Sirsa was postponed and the appellant was allowed to keep his lien on the substantive post of Reader in the Faculty of Law at Kurukshetra. On 16-8-1996, the Government of Haryana, in exercise of powers under Section 4 of the Kurukshetra University Act, 1986, excluded the Sirsa Centre from its jurisdiction and on 19-8-1996, Kurukshetra University issued a notification that in terms of the Haryana Government notification, the Sirsa Centre stood transferred to Guru Jambheshwar University, Hissar, w.e.f 26-7-1996. There is no dispute over the fact that the posts of the Sirsa Centre were also transferred to the jurisdiction of the new University at Hissar by the operation of Section 35 of the G.J University Act, 1995. This appellant seems to have made representations on 17-8-1996 and again on 19-8-1996 to the authorities of Kurukshetra University about his status and claim that he continued to be an employee of Kurukshetra University and, therefore, ought to be taken back as Professor in the main Faculty of Law of which he claimed to be an integral part under the Kurukshetra University Act and statutes made therein. The appellant was informed that he should first get himself relieved of his charge at the Sirsa Centre from G.J University to enable him to join as a Reader in the Faculty of Law, Kurukshetra University at Kurukshetra. It is at this stage Writ Petition No. 15256 of 1996 seems to have been filed not only to quash the relevant proceedings, but also for a direction to Kurukshetra University to take back the appellant as Professor, Department of Law, with continuity of service with all consequential benefits.

4. The first respondent Kurukshetra University contested the claim contending that the post advertised was specifically for the Postgraduate Regional Centre at Sirsa, to which the appellant was recruited and was not meant for the Department of Law at the University Campus, Kurukshetra; that the appellant was not confirmed in the said post and having regard to the sanctioned strength of Professors in the Department of Law at Kurukshetra, the appellant could not be taken back as Professor and as informed on 28-8-1996 he was at liberty to join his substantive post of Reader, which he held. It was also pointed out that when one of the posts of Professors fell vacant and the appellant applied for the same and interviews were held for the purpose, he was found not fit to be even included in the panel of four persons prepared then and one Dr V.K Aggarwal, who was number one in the merit panel, was appointed on 12-8-1994. It was also contended that the Law classes held at Sirsa would not show that the said Centre was part of the Department of Law at Kurukshetra. In the light of the Guru Jambheshwar University Act, 1995 and transfer of the Postgraduate Regional Centre at Sirsa to the said University located at Hissar, the claim of the appellant was untenable, as noticed earlier. Applying the principles laid down in the other common judgment, this writ petition came to be dismissed. Hence, the said appeal.

CA No. 1272 of 1998: this appeal is filed by Kurukshetra University against the order passed in CWP No. 7457 of 1997 on 3-10-1997

5. The respondent was appointed by a letter dated 7-9-1994 as a Lecturer in Law for the K.U Postgraduate Regional Centre at Sirsa/Hissar, subject to the terms and conditions specified therein. Applications also were invited separately for the posts at Kurukshetra and the PG Centres at Sirsa/Hissar. Though it appears that simultaneously selections were held for the post of Lecturer in the Department of Law at Kurukshetra as well as the Postgraduate Regional Centre at Sirsa/Hissar, this respondent applied only for the post at the PG Centre and not in the Department of Law in the Campus of Law in Kurukshetra University and his claims were considered and selected for the PG Centre only. On the passing of the Guru Jambheshwar University Act, 1995 and notified on 22-9-1995 the said University came into being and Section 35 of the said Act provided for the transfer of the Regional Centre at Hissar and Sirsa and the courses run thereunder and the posts created and filled therefor with the properties etc. relating thereto at the commencement of this Act to vest in the new University and thereby not only the Hissar Centre came within the scope and jurisdiction of the Guru Jambheshwar University Act, 1995, but he had also been paid salary only from Guru Jambheshwar University from November 1995 onwards. The respondent herein on 7-4-1997 submitted a representation to the appellant University that he be adjusted/absorbed in the Department of Law of Kurukshetra University, at Kurukshetra, and when it was rejected on 5-5-1997 he filed CWP No. 7457 of 1997 to quash the same and absorb him in the appellant University. The Division Bench (different from the one which rendered the earlier decision) which heard the writ petition separately on 3-10-1997, while adverting to the decision dated 5-8-1997 of the earlier Division Bench in CWP No. 18312 of 1996, summarily seems to have allowed the writ petition in the same terms as in the abovesaid decision without even considering which portion of the said judgment applied to this case. Hence, the respondents before the High Court have come in appeal.

CA No. 6338 of 2003 [arising out of SLP (C) No. 21612 of 1997]: this appeal has been filed by the writ petitioner in CWP No. 14263 of 1996 before the High Court, which came to be decided against him by the order dated 5-8-1997

6. The appellant in this appeal has been working as a Lecturer in Law in Kurukshetra University at Kurukshetra. In 1993, the Postgraduate Regional Centres were created at Hissar and Sirsa and one post of Reader in Law and two posts of Lecturers in Law were created for the Postgraduate Regional Centres at Hissar and Sirsa on 21-1-1994 and pursuant to the advertisement and application of this appellant for the post of Reader in the PG Centre, this appellant was appointed by a letter dated 31-12-1994 as the Reader in Law for K.U Postgraduate Regional Centre, Sirsa/Hissar, subject to the terms and conditions specified therein and was placed on probation for a period of one year indicating therein that if the work is not found satisfactory, he will be reverted to the substantive post of Lecturer, Department of Law, and also directing to give an undertaking in the form of an affidavit that he will serve at the PG Regional Centre, Sirsa/Hissar. As in the other cases, with the formation of the new Guru Jambheshwar University and the transfer of the PG Regional Centres to the new University by the operation of the statutory provisions contained in Section 35 of the Act and the exclusion of the Centre at Sirsa by Kurukshetra University from its territorial jurisdiction, this appellant has prayed that he may be allowed to continue his services with Kurukshetra University. This appellant was informed that if he gets relieved from the new University, he might join as Lecturer in Law in the substantive post held by him prior to the selection as Reader in Law at the PG Centre. This resulted in the appellant filing the above-noticed writ petition and the same was contested by the University as in the other cases, raising identical grounds. This writ petition came to be dismissed by the common order noticed above. Hence, this appeal.

CA No. 6339 of 2003 [arising out of SLP (C) No. 22833 of 1997]: this is against the order in CWP No. 16005 of 1996

7. This appeal has been filed against the common order made on 5-8-1997 dismissing the writ petition filed by the appellant claiming relief against Kurukshetra University, to quash the order allowing to join back in the University as Lecturer and for a direction to take him back as Reader in the Law Department of the University at Kurukshetra. This appellant joined Kurukshetra University on 2-1-1979 as Research Assistant in Law in the Law Department; that on 1-10-1984 he joined as a Lecturer in the Law Department, Kurukshetra University, Kurukshetra, and was working as such till 1994. When pursuant to the advertisement issued, as in the other cases, he applied and was selected and appointed by a letter dated 12-8-1994 as Reader at the PG Regional Centre, Sirsa/Hissar, subject to the terms and conditions specified therein. As in the other cases, with the constitution of the new Guru Jambheshwar University and by the operation of the statutory provisions, the PG Regional Centres with the respective posts and properties attached thereto, stood transferred to the new University and when the appellant wanted to join Kurukshetra University and continue therein, he was informed that if he gets relieved from the other University, he could join and that too only as a Lecturer which was the substantive post he held and not as a Reader. On this, the appellant filed a writ petition seeking similar relief as in the other cases, which was seriously contested on the same lines by the University and the writ petition filed by the appellant came to be ultimately dismissed. Hence, this appeal.

8. Heard the learned counsel appearing on either side. It is necessary to place on record that CA No. 8702 of 1997 filed in this Court by Kurukshetra University against the decision in CWP No. 18312 of 1996 — the decision in which the claims in all those CWPs dealt with by the Division Bench of the High Court came to be considered in the light of the fact situation in that case relating to one Sunil Deshta, came to be dismissed as having become infructuous on account of the writ petitioner respondent in this Court leaving the employment of the appellant and having joined Shimla University.

9. Whereas the learned counsel for Kurukshetra University challenged the judgments insofar as they went against it, the contesting private respondents, who were petitioners before the High Court, reiterated their stand before the High Court, by contending that inasmuch as they were selected and appointed at the PG Centres only by Kurukshetra University, their employer is only the said University and they cannot, therefore, against their will and without their consent, be transplanted into the new G.J University, be it by the provisions contained in the enactment which constituted the said University and provided for the transfer of the PG Centres at Sirsa/Hissar with the employees for the time being, the properties etc. attached thereto. Strong reliance is placed upon the very decision in Jawaharlal Nehru University v. Dr K.S Jawatkar 1989 Supp (1) SCC 679, (1989) 11 ATC 278 which was relied upon by the Division Bench of the High Court to grant relief in favour of the petitioners in CWP No. 18312 of 1996 and also deny relief for the others. Before us benefit of it was claimed on behalf of the appellant in CA No. 1272 of 1998 as well. The learned counsel for Kurukshetra University sought to distinguish the earlier decision of this Court in Jawaharlal Nehru University case 1989 Supp (1) SCC 679, (1989) 11 ATC 278 as not applicable to the cases on hand and also urged that in view of the very observations contained in para 8 of the said decision and the offer made by Kurukshetra University in these cases, no relief could have been accorded to the petitioners in CWPs Nos. 18312 of 1996 and 7457 of 1997 as well and those writ petitions also ought to have been dismissed by the High Court.

10. We have carefully considered the submissions of the learned counsel on either side. On going through the decision in Jawaharlal Nehru University case 1989 Supp (1) SCC 679, (1989) 11 ATC 278 it could be seen that the case therein related to the claims of a person and his service — on being appointed as Assistant Professor on regular basis and whose services were said to have been confirmed also, as such w.e.f 29-8-1979 but the decision to transfer to another University in that case was taken on 31-3-1981. Even in such a case, it has been held as follows:

“8. Inasmuch as the transfer of the Centre of Postgraduate Studies from the appellant University to Manipur University could not result in a transfer of the employment of the respondent from the one to the other, it must be concluded that the respondent continues in the employment of the appellant University. The transfer of the Centre of Postgraduate Studies to Manipur University may be regarded as resulting in the abolition of the post held by the respondent in the appellant University. In that event, if the post held by the respondent is regarded as one of a number of posts in a group, the principle ‘last-come, first-go’ will apply, and someone junior to the respondent must go. If the post held by him constitutes a class by itself, it is possible to say that he is surplus to the requirements of the appellant University and is liable to be retrenched. But it appears that the respondent has been adjusted against a suitable post in the appellant University and has been working there without break during the pendency of this litigation, and we cannot, therefore, permit the appellant University to retrench him.”

(emphasis supplied)

11. So far as the cases of the appellants in CA No. 8703 of 1997 and the other private appellants other than the University are concerned — the Division Bench itself chose to deny the relief that was granted to the writ petitioners in CWP No. 18312 of 1996 for the reason apparently that they applied and got appointments to the posts specially created for the PG Centres at Sirsa/Hissar, though for higher positions but those persons not only remained probationers in such posts but also retained their lien in and over the posts of which they were permanent incumbents in the Department of Law at the University Campus at Kurukshetra and could not be either regularized or made permanent in the posts held by them at the PG Centres by the time G.J University came to be constituted and by operation of Section 35 of the said enactment relating to the said University, the PG Centres at Sirsa/Hissar stood transferred to the new University with all properties and personnel including those writ petitioners w.e.f 26-7-1996. This change could not be said to have been brought about with any ulterior or sinister motive and the result and abolition of such posts so far as Kurukshetra University is concerned, was not bona (sic mala) fide or illegal. The appeal by the University in CA No. 8702 of 1997 in respect of one person, who was granted relief (petitioner in CWP No. 18312 of 1996), has been rendered infructuous and it became unnecessary to consider the correctness of the decision relating to the grant of relief therein. Yet another person, to whom relief was granted by another Division Bench merely following the decision in the other case without even any proper or objective consideration as to which class or category the claimant therein belonged, is the respondent in CA No. 1272 of 1998 and it becomes necessary to consider the correctness of the same.

12. There can be no controversy over the position that the posts, which were advertised, to which the applications were made and got appointed by all those who were before court, were for the PG Centres at Sirsa/Hissar only, though those Centres were under the control of Kurukshetra University at the relevant point of time. Indisputably, those Centres by the creation of a new University and by the operation of the statutory provisions stood transferred to the newly created University, in their entirety and they went even outside the territorial limits and jurisdiction of Kurukshetra University. The Division Bench judgment in CWP No. 18312 of 1996 itself noticed the distinguishing features between the case of Sunil Deshta on the one side and the rest of them on the other hand, while rejecting the claims of others by observing as follows:

“After examining the matter from all conceivable angles, we are of the view that the stand taken by Kurukshetra University is apt in the given circumstances. Each one of the aforesaid petitioners applied to the post/posts advertised for Postgraduate Regional Centres at Sirsa/Hissar. Even in their appointment letters, it was mentioned that each one of them will have to serve at these Centres. Since the Centres have now been transferred to Guru Jambheshwar University, even the purpose for which these Centres have been set up has ceased on account of the ambit of activities of Guru Jambheshwar University. In such a circumstance, the petitioner at best could lay a claim to the post which he was holding before he applied for any post at the Postgraduate Centre. Thus, we do not find any merit in any of these writ petitions.”

13. The said principle, which has our approval, squarely applies and governs the appeals in favour of Kurukshetra University and against the private-party appellants. Even the principles laid down in Jawaharlal Nehru University case 1989 Supp (1) SCC 679, (1989) 11 ATC 278 do not help the private-party appellants and the respondent in CA No. 1272 of 1998 to be granted any relief in their favour. It cannot be stated, nor is it the claim, in these appeals that any of the juniors of the appellants and of the respondent in CA No. 1272 of 1998 are retained in service in violation of the “last-come, first-go” principle, which has been held to apply to cases of the nature in these appeals, by this Court even in Jawaharlal Nehru University case 1989 Supp (1) SCC 679, (1989) 11 ATC 278. The High Court could not have granted any relief to any of these class of persons against Kurukshetra University and relief granted by a summary order without any application of mind to the respondent in CA No. 1272 of 1998 cannot be sustained at all.

14. For all the reasons stated above, CA No. 1272 of 1998 shall stand allowed and the remaining appeals shall stand dismissed. In cases where Kurukshetra University allowed those persons to join on the basis of their lien, the University may consider whether any pay protection or to what extent such protection may be extended, as per the rules in force. We say nothing on it but leave it to the university authorities. No costs.