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1976 (11) TMI 209

Singh, L.R. Singh, Rajev Dutta and R.K. Jain, Advs For Respondents/Defendant: R.P. Singh, L.R. Singh, Rajev Dutta and R.K. Jain, Advs. for Respondent No. 2 and D. Mukherjee, Sr. Adv., Amlan Ghosh, Adv. JUDGMENT M. Hameedullah Beg, J. 1. The respondent was initially appointed as an Accountant on 10th July, 1969, in the Varayanasaya Sanskrit Vishwavidyalaya Vanmasi (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 plaintiff-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 .....

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terpolation 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, has the power to make a permanent appointment under Section 13, Sub-section (7) of the Act and he had done so; fourthly, 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 authorities of the University, that is to say the Vice-Chancellor and the Executive Committee, had (in the words used by the plaintiff-respondent): xxx in collusion with one another with a 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 Session but the plaintiff is continuing to discharge .....

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o a 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 servants of the Vishwa 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 employees, if for any valid reason the services of the plaintiff are terminated hereafter, the permanent injunctions granted to the plaintiff-respondent by the lower appellate court shall become in operate and unenforceable. 6. After the High Court had diluted the injunction in a type of case which the desirability of granting such a relief was very doubtful, it was perhaps not very necessary for this Court to consider the matter unde .....

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ppointment 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 so. 8. 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 this 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 pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as axe exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading. 9. We do not think it is enough to state in general .....

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power to make a permanent appointment, as we think he did not, we do not think that it would have made a difference even if he had purported to make a permanent appointment 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 appointment. The resolution of the Executive Committee, which was also presided over the by Vice-Chancellor, could not be said to be dishonest or collusive. We think that the first Appellate Court was unduly swayed by what it though was a dishonest interpolation in the report of the Selection Committee. 11. The result of the consideration of the applicable provisions and the pleadings and findings of the 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. 12. We would also like to observe that, in a matter touching either the discipline or the administration of the interna .....

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