VARANASAYA SANSKRIT VISHWAVIDYALAYA AND ANR. versus DR. RAJKISHORE TRIPATHI AND ANR.

VARANASA YA SANSKRIT VISHW VIDYALA YA AND ANR. v.

DR. RAJ KISH ORE TRIP ATHI AND ANR.

November 26, 1976

[ A. N. RAY, C.J. M. H. BEG AND JASWANT SINGH, JJ.J

Varanasava Sanskrit Vishwa Vidyalaya Adhiniyam, I956, s. 13(7), Whether empowers Vice Chancellor to make· permanent appointment• without co11firn:a-tio11 by normal appointing body-Whether prevails over power of Executirc Comm'ttee under s. 23 (I )(g).

Civil Procedure Code, Order VI Rule 4, whether general allega:ions of col-lusion satisfy requirements of.

permanent lecturer's post fell vacan~ in the appellant University, and the Executive Committee which ordinarily made the appointment undor s. 23 ( 1) (g) of the Varanasaya Sanskrit Vishwa Vidyalaya Adhiniyam, 1956, not being in session, the Vice Chancellor exercised his emergency powers under s. 13 (7) of the Act to appoint the respondent on the recommendation of Selection Committee of the Un'versity. Later, thei Executive CommJtee, when appnsed of the appointment, refused to treat it as permanent and decided to re-advertise the post. Thei respondent's suit for permanent injunction · against the ter-mination of his services was dismissed by the Trial Court but decreed on appeal. On second appeal, the High Court upheld the decree.

The respondent contended that his appointment by the Vice Chancellor, made under s. 13(7), was permanent and could not be nullified by the Execu-tive Committee as its resolution was collusive and inoperative.

Chancellor,

Allowing the appeal, the Court,

HELD : (I) The extraordinary power under s. 13 (7) of the Act arc intended for certain emergent situations necessitating "immediate action." The Vice Chancellor has to report the action taken to the authority or other body "which in the ordinary course would have dealt with the matter." The object of such report is to leave the final decision to that body when it does meet. The Executive Committee had the final power to appoint and to specify conditions of service under s. 23 ( 1) (g) of the Act. The powers of the Vice Chancellor were confined· to making tentative decision which was subject to confirmation by t<he Executive Committee. [216 G-H; 217 B-C] (2) It is not enough to state, in general terms, that there was "collusion" without particulars. By general allegations of alleged collusion, the plaintiff-respondent seemed to imply some kind of fraud, but no such particuiars of that fraud or collusion were given as would satisfy the requirements of Order VI Rule 4, Civil Procedure Code. (217 E-F]

Bislumdeo Narain & Anr. v. Seogeni Rai & Ors. (1951] S.C.R. 548 at 556, applied.

CIVIL APPELLATE JURISDICTION : Oivil Appeal No. 473 of 1976.

(Appeal by Special Leave from the Judgment and Order dated 26-2-1976 bf the Allahabad High Court in Second Appeaa No. 2068/75).

D. P. Singh, R. P. Singh, L. R. Singh, Rajev Dutta and P. K. Jain, for the appellants and R .. 2. ·

D. Mukherje~ and Amlan Ghosh, for respondent No. 1.

The Judgment of the Comt was delivered by

BEG, J. The respondent was initially appointed as an Accountant on 10th July, 1969, in the Varanasaya Sanskrit Vishwavidyalaya Varanas_i (herein.after referred to as 'the University'). On 4th Decem-ber, 1969, he was transferri:;d to another post, that of "Senior Assis-tant''. In January, 1970, Dr. Shambhu Nath Singh, who was the per-manent Lecturer in Hindi in the University proceeded on long leave, and the plaintiff-respondent, being already in the service of the Univer-sity, was asked to teach classes for the time being. Applications were invited for filling up the, post of Dr. Singh. The advertisement said that the appointment was to be temporary but likely to be made rermanent later. The plaintiff-respondent, who was already officiating, also ap-plied. He was temporarily appointed on 25th February, 1970. On '23rd April, 1970, the Registrar of the University gave the plaintiff-respondent notice that his temporary appointment would terminate on 30th April, 1970. The plain!iff-rcspondent promptly brought his first suit in the Court of Munsif City, Varanasi, to restrain the Univer-sity from appointing any one else in his place; but, this suit was ulti-mately dismissed. On 15th July, 1970, Dr. Singh had resigned from his post so that the permanent vacancy was there to be filled up. At that time, the plaintiff's suit, mentioned above, was still pending. Selection Committee of the University interviewed candidates, including the plaintiff-respondent on 2nd November, 1970, and submitted list of names for appointment to the post. In this list, the plaintiff-respon-'denfs name was placed first. As the Executive Committee of the Uni-versity was not in session, it appears that the Vice Chancellor appointed the plaintiff on 1st February, 1971, on the basis of the recommendations of the Selection Committee. The Vice Chancellor purported to act under Section 13, sub. s. (7) of the Varanasaya Sanskrit Vishwa Vidya-laya Adhiniyam, 1956 (hereinafter referred to as 'the Act'). The Exe-cutive Committee of the University then passed resolution on 17th or 18th March, 1971, approving what it assumed to be the recommenda-tion of the Selection Committee to appoint the plaintiff-respondent tem-porarily. It also decided tO" advertise" for the post again. On 10th April, "1971, the plaintiff-respondent was informed by the Registrar of the University, communicating the decision of the Executive Committee, that his appointment was to continue only upto the end of the current academic session. On 15th May, 1971, the plaintiff-respontlent filed his second suit, now before us, for permanent injunction to restrain the appellant University from terminating his services. This suit was dis-missed by an Additional Civil Judge. On an appeal. it was decreed by the Additional District and Sessions Judge of Varanasi. The Hi!!h Court of Allahabad, in second appeal. affirmed the judgment and order under appeal before it. The defendant University is now before this Court by grant of special leave to appeal.

The case of the plaintiff-respondent was : firstly, that the vacancy in which he was to be appointed being permanent and the procedure of appointment through Selection Committee being meant for permanent appointments, the plaintiff-respondent was actually recommended for

:a permanent appointment, but, there had been an alteration and inter-polation in the recommendation of the Selection Committee so as to make it appear that the recommendation was only for temporary ap-pointment: secondly, that the Vice Chancellor, in any case, had the power to make permanent appointment under Section 13, sub. s. (7) of the Act and he had clone so, thirdly, that the plaintiff-respondent's appointment being complete and permanent, the Executive Committee of the University had no power left to nullify it; and lastly, that the au-thorities of the University, that is to say the Vice Chancellor and the Executive Committee, had (in the words used by the plaintiff-respon-dent) :

" xx xx in collusion with one another with view to put an end to the plaintiff's services as Lecturer in Hindi in utter disregard of the statutes and rules and the appointment letter issued by the then Vice Chancellor have collusively arranged and made manipulation in the report of Selection Committee and resolution of the Executive Committee for an order dated 10th April, 1971, and, in colourable exercise of power, are threatening to treat the plaintiff's appointment as continuing till the end of ~ession but the plaintiff is continuing to dis-charge his function as permanent lecturer in Hindi and on ac-count of inter.im injunction granted in suit No. 289 of 1971 for permanent injunction restraining the defendants terminat-ing the services of the plaintiff the defendants have not been able to do any act adverse to the interest of the plaintiff".

The Trial Court had held that, even if there had been an interpola-tion of the word temporary in the recommendation of the Selection Committee for proposed appointment, it did not affect the result be-cause the Vice Chancellor had neither the power to make permanent zippointment nor had he done so by means of his order dated 1st Febru-ary, 1971, which merely said that the plaintiff-respondent was appoint-ed to lecture without specifying whether the appointment was to be temporary or permanent.

It appears to us that the Appellate District Court had been very much carried away by the fact that there had been, in its opinion, an .'literation or interpol,ation in the recommendation of the Selection Com-mittee altbugh the Committee had no power whatsoever to determine the nature of the appointment of the plaintiff-respondent. The Appel-late Court had, therefore, reached the conclusion, which did not really follow from this finding, that the appointment of the plaintiff-respondent was permanent in the eye of law. It also held that the Executive Com-mittee had no power whatsoever to alter or touch the terms of the appointment made by the Vice Chancellor, which amounted to an ap-< pointment on probation for two years.. It reached this surprising con-clusion despite the complete absence in the Vice Chancellor's order of any mention of probation. The Appellate Court had granted an in-junction in the following terms :

"The defendants-respondents are permanently restrained from advertising the post of Lecturer in Hindi and from caus-

ing any interference in the plaintiff's discharge of his duties as lecturer in Hindi in the Varanasaya Sanskrit Vishwavidyala by terminating his services or from withholding his salary in pursuance of resolution No. 44 dated 17 /18-3-1971 passed by the Karya Karitini Parishad of the Varanasaya Sanskrit Vish-wavidyalaya and order No. 3 dated 10-4-1971 (Ex. 1) passed by the defendant-respondent No. 3'«

The High Court, in agreement with the first Appellate Court, had interpreted Section 13 ( 7) of the Act as conferring the power of abso-lute appointment to permanent vacancy upon the Vice Chancellor. It had repelled the contention that Section 23 ( 1) (g) of the Act gives exclusive powers to the Executive Committee to make appointments of teachers because that power is : "Subject to the provisions of this Act and the Statutes". The power is

"23(1) (g) to appoint the officers, teachers and other Ger-vants of the Vishva Vidyalaya, to define their duties and the conditions of their service and to provide for the filling of casual vacancies in their posts;"

The High Court sustained the injunction, but had modified it consider-ably by what it ealled clarification in the following words :

"xxx as it is not yet certain whether the position of the plaintiff-respondent at present is that of probationer or per-manent employee, if for any valid reason the services of the plaintiff are terminated hercaf!er, the permanent injunctions granted to the plaigtiff-respondent by the lower appellate court shall become inoperative and unenforceable".

After the High Court had diluted the injunction in type of case in which the desirability of granting such relief was very doubtful, it was perhaps not very necessary for this Court to consider the matter under Article 136 of the Constitution. Nevertheless, as this Court had thought fit to grant special leave in this case and the High Court's find-ings arc not unequivocal, we propose to decide the question of inter-pretation of Section 13 ( 7) of the Act and other questions which appear to us to have bearing on the question whether it is desirable for Courts to interfere by means of an injunction in the affairs of educational institutions. ·

The High Court itself has held that the ordinary power of making appointments of teachers of the University and of defining the nature of appointments and specifying conditions of service in such cases is vested in the Executive Committee. The emergency powers under Sec-tion 13(7) of the Act are obviously intended for certain emergent situa-tions necessitating "immediate action". Before they can be exercised it must appear that there is, in fact, such situation as to warrant the exercise of extraordinary powers conferred under Section 13 (7) of the Act. It is apparent that the Vice Chancellor has to report the action taken to the authority or other body "which in the ordinary course would have dealt with the matter". It seems to us to be rather extra-

ordinary that despite these clear indications of the situation in which

and the extent to which the Vice Chancellor may exercise his emer-A gency powers, it should have been held by the first Appellate Court and affirmed by the High Court that t.'1e Vice Chancellor had power to make an absolute or clear appointment without any restriction or obliga- · tion to place the matter before the Executive Committee for confirma-tion. We find that the Appellate Court had gone to the extent of say-ing that the Executive Committee had "no jurisdiction" or power left to consider the case. -we think that this is an impossible view to take n. in view of the clear meaning of the words used in Section 13 ( 7) of the Act. The object of the prevision for reporting the matter to the body which deals with it in the ordinary course could only be to leave the final decision to that body when it does meet. In other words, the powers of the Vice Chancellor was, in our opinion, confined to making tentative decision which, whether he meant the appointment to be temporary or permanent, was subject to confirmation by the Executive Committee. Until then it was not final. When that body rei'used to treat the appointment as permanent and to re-advertise the post, it clearly indicated its intention to specify the nature of the plaintiff-respon-dent's appointment which it alone could do.

Although we are not satisfied that circumstances existed which justi-fied the use of emergency powers of the Vice Chancellor under Section 13(7) of the Act, yet, we do not think it possible to enter upon this enquiry as no argument seems to us to have been advanced on this aspect in the High Court or in the District Courts. We, however, think that the first Appellate Court had much too lightly believed that the plaintiff-appellant had been victim of some kind of fraud, when no such particulars of that fraud or collusion were given as would satisfy the requirements of Order VI, Rule 4, Civil Procedure Code, which Jays down :

"In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or un-due influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms, aforesaid, particul::irs (with dates and items if necessary) shall be stated in the pleading".

We do not think it is enough to state in general terms that there was "collusion" without more particulars. This Court said in Bishundeo Narain & Anr. v. Seogeni Rai & Ors.(') (at p., 556) as under :

"General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, and the same, applies to undue influence and coercion".

We have already set out the general allegations of alleged collusion by which the plaintiff-respondent seemed to imply some kind of fraud. He indic.ated no reason for·this and made no specific allegation against any particular person.

Apart from some suspicion surrounding the alleged alterations in the recommendat10n of the Selection Committee, which did not have as the f\ppellate Court rightly held the power to determine the nature of appomtment of the plaintiff-respondent, nothing more seems to have been proved here at all on the findings of fact recorded. It is in evi-dence that the Selection Committee itself was presided over by the Vice Chancellor. It is true that the alterations have not been initialled. But considering the most unsatisfactory and haphazard manner in-which th~ r~cords of this University had been kept (we have examined the ori-gmal re~ords), we would not be surprised if the actual proceedings were, qmte honestly, recorded in this fashion. If the Vice Chancellor, who presided, had any actual prejudice or animus against petitioner, he would not be party to placing the plaintiff's name first let alone the recommendation for temporary appointm.ent of an employee whose worth must be known to him. There was nothing to prevent Selec-tion Committee from making particular recommendation of this kind. It certainly had no power to make the appointment which vested only with the Executive Committee. But, its powers of recommendation were not fettered. At any rate, no rule was shown to us as to how it should send its report. Furthermore, if the Vice Chancellor was prejudiced against the plaintiff-respondent and had even altered records, he could not have passed an order of appointment without even clearly specify-ing that the appointment was temporary. The original order on the record shows that the petitioner was appointed without specifying whe-ther he was being appointed permanently or temporarily. Obviously, if the vice Chancellor did not have the power to make permanent ap-pointment, as we think he did not, we do not think that it would have made difference even if he had purported to make permanent ap-E pointment which would have been invalid. However, on the exact terms of the order of the Vice Chancellor, it could not be said that he had passed any order for permanent appointment. The resolution of the Executive Committee, which was also presided over by the Vice Chancellor, could not be said to be dishonest or collusive. We think that the first Appellate Court was unduly swayed by what it thought was dishonest interpolation in the report of the Selection Committee.

- The result of the consideration of the applicable provisions and the pleadings and findings of fact in the case before us is that we think that the plaintiff-respondent has failed complete!):' to show .that the .resolu-tion of 17-18th March, 1972, of the Executive Comnuttee, which had the final power to appoint and to specify conditions of service, under Section 23 ( 1) (g) of the Act, could be said to be either collusive or inoperative.

We would also like to observe that, in matter touching either the discipline or the administration of the internal affairs of University, Courts should be most reluctant to interfere. They should refuse to grant an injnction unless fairly go.ad P.rima-facie .case !s ~ad.e out for interference with the internal affairs of an educational mst1tut10ns.

We presume that the plaintiff-respondent has been worki_ng ::is _re-sult of the injunction granted to him. We, however, se~ no 1ust1fication for continuing the injunction. We, therefore, allow this appeal to the

·extent that we withdraw the injunction. This means that the parties .are left free to adjust their differences. If, upon the strength of any facts subsequent to the institution of the suit now before us, the plaintiff has acquired any new rights which have been infringed he is free to ·seek relief. We make this observation as it was stated on his behalf ' ; that he claims some right~ on the strength of subsequent facts too. As those are not before us, we can say nothing about them.

The result is that we allow this appeal and set aside the decree and order of the High Court and restore those of the Trial Court. The par-ties will bear their own costs throughout.

Appeal _allowed.