PETITIONER:
VARANASAYA SANSKRIT VISHWAVIDYALAYA AND ANR.
Vs.
RESPONDENT:
DR. RAJKISHORE TRIPATHI AND ANR.
DATE OF JUDGMENT26/11/1976
BENCH:
BEG, M. HAMEEDULLAH
RAY, A.N. (CJ)
SINGH, JASWANT
CITATION:
1977 AIR 615 1977 SCR (2) 213
1977 SCC (1) 279
ACT
Varanasava Sanskrit Vishwa Vidyalaya Adhiniyam, 1956, s.
13(7), Whether empowers Vice Chancellor to make permanent
appointments without confirmation by normal appointing
body--Whether prevails over power of Executive Committee
under s. 23(1)(g).
Civil Procedure Code, Order VI Rule 4, whether general
allegations of collusion satisfy requirements of.
HEADNOTE
A permanent lecturer’s post fell vacant in the appellant
University, and the Executive Committee which ordinarily
made the appointment under 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 a Selection Committee of the University.
Later, the Executive Committee, when apprised of the ap-
pointment, refused to treat it as permanent and decided to
re-advertise the post. The respondent’s suit for permanent
injunction against the termination 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 Executive Committee as its
resolution was collusive and inoperative.
Allowing the appeal, the Court,
HELD: (1) The extraordinary power under s. 13(7) of the
Act are intended for certain emergent situations necessitat-
ing "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 a 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 a tentative decision
which was subject to confirmation by the Executive Commit-
tee. [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 particulars
of that fraud or collusion were given as would satisfy the
requirements of Order VI Rule 4, Civil Procedure Code.
[217 E-F]
Bishundeo Narain & .Anr. v. Seogeni Rai & Ors. [1951]
S.C.R. 548 at 556, applied.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 473 of 1976.
(Appeal by Special Leave from the Judgment and Order
dated 26-2-1976 of the Allahabad High Court in Second
Appeal No. 2068/75).
D.P. Singh, R.P. Singh, L.R. Singh, Rajev Dutta and P.K.
Jain, for the appellants and R. 2.
214
D. Mukherjee and Amlan Ghosh, for respondent No. 1.
The Judgment of the Court was delivered by
BEG, J. The respondent was initially appointed as an Ac-
countant 10th July, 1969, in the Varanasaya Sanskrit
Vishwavidyalaya Varanasi (hereinafter referred to as the-
University’). On 4th December, 1969, he was transferred to
another post, that of a "Senior Assistant". In January,
1970, Dr. Shambhu Nath Singh, who was the permanent Lecturer
in Hindi in the University proceeded on long leave, and the
plaintiff-respondent, being already in the service of the
University, 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 permanent later. The plain-
tiff-respondent, who was already officiating, also applied.
He was temporarily appointed on 25th February, 1970. On
23rd April, 1970, the Registrar of the University gave the
plaintiff[respondent a notice that his temporary appointment
would terminate on 30th April, 1970. The plaintiff-respond-
ent promptly brought his first suit in the Court of Munsif
City, Varanasi, to restrain the University from appointing
any one else in his place; but, this suit was ultimately
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. A Selection Committee of the
University interviewed candidates, including the plaintiff-
respondent on 2nd November, 1970, and submitted a list of
names for appointment to the post. In this list, the plain-
tiff-respondents name was placed first. As the Executive
Committee of the University 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 Vidyalaya Adhiniyam, 1956 (hereinafter referred to as
’the Act’). The Executive Committee of’ the University then
passed a resolution on 17th or 18th March, 1971, approv-
ing what it assumed to be the recommendation of the Selec-
tion Committee to appoint the plaintiff-respondent tempo-
rarily. 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-respondent filed his second
suit, now before us, for a permanent injunction to restrain
the appellant University from terminating his services.
This suit was dismissed by an Additional Civil Judge. On an
appeal it was decreed by the Additional District and Ses-
sions Judge of Varanasi. The High 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 a Selection Commit-
tee being meant for permanent appointments, the plaintiff-
respondent was actually recommended for
215
a permanent appointment, but, there had been an alteration
and interpolation in the recommendation of the Selection
Committee so as to make it appear that the recommendation
was only for a temporary appointment secondly, that the Vice
Chancellor, in any case, had the power to make a permanent
appointment under Section 13, sub. s. (7) of the Act and he
had done so, thirdly, that the plaintiff-respondent’s ap-
pointment being complete and permanent, the Executive Com-
mittee of the University had no power left to nullify it;
and lastly, that the authorities of the University, that is
to say the Vice Chancellor and the Executive Committee, had
(in the words used by the plaintiff-respondent):
"xx xx in collusion with one another
with a view to put an end to the plaintiff’s
services as Lecturer in Hindi in utter disre-
gard of the statutes and rules and the ap-
pointment letter issued by the then Vice
Chancellor have collusively arranged and made
manipulation in the report of Selection Com-
mittee and resolution of the Executive Commit-
tee for an order dated 10th April, 1971, and,
in colourable exercise of power, are threaten-
ing to treat the plaintiff’s appointment as
continuing till the end of Session but the
plaintiff is continuing to discharge his
function as permanent lecturer in Hindi and on
account of interim injunction granted in suit
No. 289 of 1971 for permanent injunction
restraining the defendants terminating 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
interpolation of the word temporary in the recommendation of
the Selection Committee for a proposed appointment, it did
not affect the result because the Vice Chancellor had nei-
ther the power to make a permanent appointment nor had he
done so by means of his order dated 1 st February, 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 alteration or interpolation in the recom-
mendation of the Selection Committee although the Committee
had no power whatsoever to determine the nature of the
appointment of the plaintiff-respondent. The Appellate
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 Committee had no power whatso-
ever to alter or touch the terms of the appointment made by
the Vice Chancellor, which amounted to an appointment on
probation for two years.. It reached this surprising conclu-
sion despite the complete absence in the Vice Chancellor’s
order of any mention of a probation. The Appellate Court
had granted an injunction in the following terms:
"The defendants-respondents are perma-
nently restrained from advertising the post of
Lecturer in Hindi and from caus-
216
ing any interference in the plaintiff’s dis-
charge 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 Kariti-
ni 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 confer-
ring the power of absolute appointment to a permanent vacan-
cy 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 servants 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 considerably by what it called
a clarification in the following words:
"xxx as it is not a yet certain whether
the position of the plaintiff-respondent at
present is that of probationer or a permanent
employee, if for any valid reason the services
of the plaintiff are terminated hereafter, the
permanent injunctions granted to the plain-
tiff-respondent by the lower appellate court
shall become inoperative and unenforceable".
After the High Court had diluted the injunction in a
type of case in which the desirability of granting such a
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
findings are not unequivocal, we propose to decide the
question of interpretation of Section 13 (7) of the Act and
other questions which appear to us to have a 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 condi-
tions of service in such cases is vested in the Executive
Committee. The emergency powers under Section 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 a
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 extraordinary that despite these clear indications of
the situation in which
217
and the extent to which the Vice Chancellor may exercise his
emergency powers, it should have been held by the first
Appellate Court and affirmed by the High Court that the Vice
Chancellor had a power to make an absolute or clear appoint-
ment without any restriction or obligation to place the
matter before the Executive Committee for confirmation. We
find that the Appellate Court had gone to the extent of
saying that the Executive Committee had "no jurisdiction" or
power left to consider the case. We think that this is an
impossible view to take in view of the clear meaning of the
words used in Section 13(7) of the Act. The object of the
provision 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 opin-
ion, confined to making a 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 refused to treat the
appointment as permanent and to re-advertise the post, it
clearly indicated its ;intention to specify the nature of
the plaintiff-respondent’s appointment which it alone could
do.
Although we are not satisfied that circumstances existed
which justified 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 a 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 lays down:
"In all cases in which the party plead-
ing relies on any misrepresentation, fraud,
breach of trust, wilful default, or undue
influence, and in all other cases in which
particulars may be necessary beyond such as
are exemplified in the forms, aforesaid,
particulars (with dates and items if neces-
sary) 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.
C) (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 influ-
ence 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 indicated no reason for this and made
no specific allegation against any particular person.
(1) [1951] S.C.R. 548, 556
218
Apart from some suspicion surrounding the alleged alter-
ations in the recommendation of the Selection Committee,
which did not have as the Appellate Court rightly held the
power to determine the nature of appointment of the plain-
tiff-respondent, nothing more seems to have been proved here
at all on the findings of fact recorded. It is in evidence
that the Selection Committee itself was presided over by the
Vice Chancellor. It is true that the alterations have not
been initialed. But, considering the most unsatisfactory and
haphazard manner in which the records of this University had
been kept (we have examined the original records), we would
not be surprised if the actual proceedings were, quite
honestly, recorded in this fashion. If the Vice Chancellor,
who presided, had any actual prejudice or animus against
petitioner, he would not be a party to placing the plain-
tiff’s name first let alone the recommendation for a tempo-
rary appointment of an employee whose worth must be known to
him. There was nothing to prevent a Selection Committee
from making a 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 recom-
mendation 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 with-
out specifying whether he was being appointed permanently or
temporarily. Obviously, if the Vice Chancellor did not have
the power to make a permanent appointment, as we think he
did not, we do not think that it would have made a differ-
ence even if he had purported to make a permanent appoint-
ment 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 a permanent appoint-
ment. 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 a
dishonest interpolation in the report of the Selection
Committee.
The result of the consideration of the applicable provi-
sions and the pleadings and findings of fact in the case
before us is that we think that the plaintiff-respondent has
failed completely to show that the resolution of 17-18th
March, 1972, of the Executive Committee, 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 a matter touching
either the discipline or the administration of the internal
affairs of a University, Courts should be most reluctant to
interfere. They should refuse to grant an injuction unless
a fairly good prima-facie case is made out for interference
with the internal affairs of an educational institutions.
We presume that the plaintiff-respondent has been work-
ing as a result of the injunction granted to him. We,
however, see no justification for continuing the injunction.
We, therefore, allow this appeal to the
219
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 rights 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 parties will bear their own costs
throughout.
M.R. Appeal
allowed.
220