The recent decision of the Supreme Court in Pooran Chand v. King George Medical University[1] raises the bar to challenge illegal appointments in State-run institutions by severely curtailing the opportunities to challenge illegal appointments. The Supreme Court set aside the decision of the Allahabad High Court in Jitendra Kumar v. King George Medical University[2], stating that the challenge to the appointment of Dr Pooran Chand by Dr Jitendra Kumar Rao was made beyond the time prescribed under Section 53 of the King George’s Medical University Act, 2002.
Facts
Dr Chand and Dr Rao were appointed as Assistant Professor and Lecturer of Prosthodontics respectively in King George’s Medical University by the same Selection Committee in 2005. Statute 11.02 B2 of the University states that a person needs three years of teaching experience as Lecturer/Chief Resident/Senior Resident/Demonstrator/Tutor or equivalent after obtaining MDS degree in the subject concerned.
Dr Rao was appointed as Lecturer, as he did not have three years of teaching experience. Dr Chand was appointed as Assistant Professor as he claimed to have three years of teaching experience. Dr Rao was promoted as an Assistant Professor in 2007 after completing three years of teaching experience. Dr Rao was placed below Dr Chand in the seniority list as he was a later entrant to the post of Assistant Professorship.
Dr Rao challenged the appointment of Dr Chand before the Vice-Chancellor vide general representations dated 4-11-2008, 3-1-2009 and 8-2-2009, after coming to know that Dr Chand did not have three years of teaching experience at the time of his appointment. Receiving no response, Dr Rao submitted a representation dated 13-2-2009 under Section 68 of the U.P. State Universities Act, 1973[3], challenging the appointment of Dr Chand and claiming seniority over Dr Chand. The Chancellor vide order dated 8-7-2009 rejected the representation citing delay and without considering the eligibility of Dr Chand at the time of his appointment.
Proceedings before the High Court
Aggrieved, Dr Rao challenged the order dated 8-7-2009 before the High Court and primarily sought a direction to set aside the order dated 8-7-2009, set aside the appointment of Dr Chand, and consider the appointment of Dr Chand to be as a Lecturer from the date of his appointment. Dr Rao contended that Dr Chand did not have three years of teaching experience at the time of his appointment as required under Statute 11.02 B2, and therefore, he was ineligible to be appointed as an Assistant Professor.
As the Chancellor did not give any finding on the eligibility of Dr Rao at the time of his appointment, the High Court was constrained to summon the records relating to the appointment of Dr Rao. After going through the appointment records, the High Court gave a finding of fact that Dr Chand did not have three years of teaching experience to be appointed as an Assistant Professor at the time of his appointment. The High Court noticed that Dr Rao was a Medical Officer, Provincial Medical Services (Dental) from September1992 to July 2003 and Assistant Professor (Dentistry), B.R.D. Medical College, Gorakhpur since July, 2003 to date (of his appointment). The High Court held that the teaching experience as Assistant Professor (Dentistry) could not be counted as a teaching experience for Prosthodontics, relying on a Coordinate Bench decision in Gulshan Kumar Singh v. Chhatrapati Shahuji Maharaj Medical University.[4]
Thus, the High Court set aside the appointment of Dr Chand for being contrary to the appointment rules as Dr Chand was ineligible to be an Assistant Professor at the time of his appointment. The High Court, relying on the decisions of the Supreme Court in Nagendra Chandra v. State of Jharkhand,[5] Government of A.P. v. K.Brahmanandam[6] and Pramod Kumar v. U.P. Secondary Education Services Commission,[7] held that illegality in qualification at the time of appointment could not be cured. To the stand taken by the University that Dr Rao had approached the Court with unexplained delay, the High Court gave a categorical finding that Dr Rao approached the authorities as and when he came to know about the illegality. However, the High Court exercising its equitable and discretionary jurisdiction, directed the University to treat Dr Chand as having been appointed initially to the post of Lecturer, with all necessary consequences.
Proceedings before the Supreme Court
In the appeal filed by Dr Chand, the Supreme Court set aside the High Court’s decision, stating that Dr Rao did not challenge the appointment within three months as prescribed in Section 68 of the U.P. State Universities Act, 1973. The Supreme Court did not reverse the High Court’s finding on the illegibility of Dr Chand at the time of his appointment or the finding on the date of knowledge of Dr Rao. The Supreme Court relied on Section 68 to state that the period specified in Section 68 to challenge appointments is sacrosanct and therefore set aside the High Court’s decision. So, what does Section 68 say?
- Reference to the Chancellor.—If any question arises whether any person has been duly elected or appointed as, or is entitled to be, member of any authority or other body of the University, or whether any decision of any authority or officer of the University (including any question as to the validity of a Statute, Ordinance or Regulation, not being a Statute or Ordinance made or approved by the State Government or by the Chancellor) is in conformity with this Act or the Statutes or the Ordinance made thereunder, the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final:
Provided that no reference under this section shall be made—
(a) more than three months after the date when the question could have been raised for the first time;
(b) by any person other than an authority or office of the University or a person aggrieved:
Provided further that the Chancellor may in exceptional circumstances—
(a) act suo motu or entertain a reference after the expiry of the period mentioned in the preceding proviso;
(b) where the matter referred relates to a dispute about the election and the eligibility of the person so elected is in doubt, pass such orders of stay as he thinks just and expedient.
The Supreme Court allowed the appeal and upheld the Chancellor’s order by stating that the period of three months specified in sub-clause (a) of the first proviso must be followed as the object and purpose of the sub-clause is to give quietus to any disputes relating to appointments at the earliest. The Supreme Court observed that Dr Rao challenged the appointment of Dr Chand beyond the “reasonable time” specified in the Act, and therefore it is not equitable to be set aside the appointment of Dr Rao.
The Supreme Court wrongly observed that Dr Rao challenged the appointment of Dr. Chand for the first time before the High Court. A reference under Section 68 relates to questions relating to the eligibility of a person duly elected or appointed, therefore the question of challenging the appointment of Dr Chand is integral to the reference before the Chancellor. In any case, Dr Rao claimed seniority for himself based on the illegal appointment of Dr Chand; therefore, a challenge to the illegal appointment of Dr Chand was intrinsic to claiming seniority by Dr Rao.
Analysis
Firstly, the Supreme Court did not notice that the period specified in sub-clause (a) of the first proviso commences from when the question could have been raised for the first time and not from the date of appointment. It is well-settled law that cause of action arises from the date of knowledge of the event and not from the date of the event itself. Sub-clause (a) of the first proviso reiterates the established principle of law. However, by relying on the date of appointment to commence limitation, the Supreme Court ensured that questioning illegal and irregular appointments would become challenging.
The Supreme Court did not consider that the information relating to appointments is generally sensitive and confidential. If the appointments are intentionally made illegally, additional efforts are made to hide the information from public view. Therefore, by commencing limitation for challenging illegal appointments from the appointment date and not from date of knowledge, the Supreme Court made the exercise of challenging illegal appointments illusory.
Secondly, even if the delay on the part of Dr Rao is accepted for the sake of argument, the Supreme Court overlooked the discretion vested with the Chancellor under sub-clause (a) of the second proviso, despite acknowledging it, and that the Chancellor has inherent powers to condone the delay. Sub-clause (a) of the second proviso categorically allows the Chancellor to look into questions relating to the appointment beyond the specified period in exceptional circumstances.
The Supreme Court did not notice that Section 68 provides for a two-step procedural process for deciding the reference i.e. the reference needs to be made within three months from the date the question could have arisen [sub-clause (a) of the first proviso], and if the reference is made beyond three months, the Chancellor may in exceptional circumstances consider the reference beyond the three months [sub-clause (b) of the first proviso]. Thus, the Chancellor’s powers under sub-clause (a) of the second proviso are discretionary in nature, the exercise of which must be based on relevant materials. In the instant case, once the Supreme Court and Chancellor came to a conclusion that the reference by Dr Rao is barred by delay, they ought to have considered whether the reference fits under the exceptional circumstances or not. By not giving a finding on the existence of exceptional circumstances, the Supreme Court and Chancellor have rendered sub-clause (a) of the second proviso otiose.
It is a settled principle of law that the exercise of discretionary powers must be based on relevant considerations and is subject to judicial review, albeit with a higher threshold.[8] The discretion being statutory in nature needs to be exercised, not capriciously or arbitrarily but according to sound principles laid down.[9] Moreover, whether the reference falls under exceptional circumstances or not must be determined based on whether conditions for the exercise of such powers have been established or not on merits.[10] The Allahabad High Court in Ram Chandra v. State of U.P.,[11] interpreting sub-clause (a) of the second proviso held that the Chancellor has the power to set aside appointments even twelve (12) years after the appointment as illegal appointments wreak havoc on the education system. Therefore, it was necessary for the Supreme Court/Chancellor after giving a finding of delay to have decided whether the case fell under the sub-clause (a) of the second proviso, especially when Dr Chand admittedly was ineligible to be appointed as an Assistant Professor at the time of his appointment.
Insofar as delay in considering the reference is considered, it is no longer res integra that an application under Section 5 of the Limitation Act, 1963[12] is not required for filing condoning delay.[13] In any case, the Supreme Court in Chaudhary Charan Singh University v. Garima Singh[14] held that a delay application is not required to be filed under Section 68.
In a catena of decisions, the Supreme Court has observed that appointments made in contravention to the eligibility requirements offend the equality clause of the Constitution and that rule of equality in public employment is a basic feature of our Constitution[15] and therefore should not be condoned.[16] In fact in the instant case, the Supreme Court relying on Nagendra Chandra[17], observed that an appointment made in infraction of recruitment rules would be cancelled. However, the Supreme Court wrongly distinguished Nagendra Chandra[18] by relying on the recommendation by the Selection Committee and approval of the Executive Council after due advertisement to justify Dr Chand’s appointment, overlooking the categorical finding given by the High Court about the ineligibility of Dr Chand at the time of his appointment.
Qualification requirements are essential for applying for any post as it is the first step in the appointment process. Recommendation by the Selection Committee and approval of the Executive Council being the later stage of the appointment process cannot cure/relax the eligibility of requirements unless previously advertised, as their decision is predicated on the satisfaction of eligibility requirements. Therefore, once an applicant does not fulfil the eligibility requirements, the approval of the Selection Committee and Executive Council would not survive.
Thirdly, the Court’s restrictive interpretation of sub-clause (a) of the first proviso by citing certainty required for quality teaching ironically ensured that quality of pedagogy would be affected in the long run. As noticed by the Supreme Court in Frank Anthony Public School Employees’ Assn. v. Union of India[19] excellence of instruction provided by an institution depends on the qualifications of the teaching staff. The Supreme Court’s restrictive view on limitation to challenge illegal appointments and lack of exercise of discretion by the Chancellor in setting aside illegal appointments perpetuates illegal appointments, without any fear of retribution as challenges to illegal appointments has been made onerous.
Concluding remarks
The Supreme Court decision in Pooran Chand v. King George Medical University[20] raises the bar significantly to challenge illegal appointments. It is a serious blow to the service and equality jurisprudence as it prioritises administrative convenience over enquiry into illegal appointments and discriminates in favour of illegal appointees by severely curtailing the opportunities to challenge illegal appointments and rendering the exercise of discretion of the superior authorities in a lawful manner otiose.
*Advocate, Hyderabad. Author can be reached at tpsharsha@gmail.com.
[8]See Mangalam Organics Ltd.v. Union of India, (2017)7SCC221.
[9] See Registrar of Trade Marks v. Ashok Chandra Rakhit Ltd., AIR 1958 SC 558.
[10] See Apex Finance and Leasing Ltd. v. CIT, 1995 Supp (2) SCC 729.
[11] 2014 SCC OnLine All 4203.
[12]http://www.scconline.com/DocumentLink/wEz17QCP
[13] See Sesh Nath Singh v. Baidyabati Sheoraphuli Cooperative Bank, 2021 SCC OnLine SC 244.
[14]Civil Appeal No. 20976 of 2017, order dated 1-12-2017.
[15]See State of Karnataka v. Umadevi (3), (2006) 4 SCC 1.
[16] See Nagendra Chandra, supra Note 5; K.Brahmanandam, supra Note 6 and Pramod Kumar, supra Note 7.
[17]Supra Note 5.
[18]Ibid.
[20]Supra Note 1.