Suresh Chandra Verma and ors. Vs. the Chancellor, Nagpur University, Bombay and ors. - Court Judgment

Shah, J.

1. IN Writ Pent. No. 1876 of 1984 Dr. Harihar Bhakre v. Chancellor of Nagpur University which was decided on Dec. 7 (reported in 1985 LIC 1481), by a Division Bench of this Court at Nagpur (Paunikar & Deshpande, JJ). Wherein the legality of the employment notice issued by the Nagpur University under s. 57(4) (a) of the Nagpur University Act , 1974 (hereinafter referred to as the Act ') vis--vis reservation for the backward classes was under challenge, amongst various other points involved in the said petition. The Division Bench took the classes in respect of the posts of Professors, Readers and Lecturers adverted was not necessary, but that it is enough, if the posts reserved are mentioned numerically out of the total posts to be filled in. the Division Bench further held that having regard to the provisions of S. 57 (4) (d) and (e) such reservation could be made by the Executive Council under S. 57 (4)(e) even after the selection by the Selection committee on merit under S. 57 (4) (d). in the present petition in which a question as to the legality of a similar employment notice dt. July 27, 1984 issued by the University has arisen, came up for hearing before a Division Bench of this Court at Nagpur (Motha and Loney, JJ). By their judgment dt. 23rd Sept. 1987, the Division Bench expressed their disagreement with the view taken in Dr. Bhakre's case 1985 LIC 1481. Consequently, the Division Bench directed the papers placed before the learned Chief Justice for referring the following question to a larger bench;

'Is non-reserving the posts of University teachers subject wise in the employment notice a breach of letter and spirit of reservation policy contained in S. 77C read with S. 57 of the Act

2. The Division Bench refrained from adjudicating upon the other points and said that the same will be considered by the appropriate Division Bench after the question referred is answered by the Larger Bench. It appears from the judgment that 11 more petitions in which a similar point arises are pending before the Nagpur Bench. The learned Chief Justice by this order dt. Dec. 29, 1987, directed that the matter to stand transferred to Bombay Full Bench to decide the entire petition and not merely the reference.

3. At the commencement of the hearing of this petition we enquired with the learned counsel appearing on both the sides as to whether they had and objection for hearing the entire petition by this Full Bench. All the counsel stated before us that the matter may be finally disposed of and accordingly we proceeded to hear the entire petition.

4. A policy of reservation for the backward classes was statutorily introduced by Maharashtra Act 32 of 1978 which amended the Napur University Act , 1974. Among other provisions. S. 57 of the Act has been amended and a new provision viz. S. 77C has been inserted in the Act . The Government of Maharashtra. Education and Employment Department by a resolution dt. Mar. 30, 1981, issued instructions in exercise of the powers conferred on it under s. 77C of the Act , to the Nagpur University in regard to the reservation of posts to be made in favour of the Scheduled Cates and Scheduled Tribes while making appointments to the teaching and non-teaching posts in the University affiliated Colleges and recognised institutions. To the said vacancies should be transferred to the referred to in (a) above from whom suitable candidates are available provided that the total percentage of reservations does not exceed the limit of 124 % or 40% (including those selected on merit ), as the case may be Para 3(b) is of some significance in view of the arguments urged before us which runs thus:

'Similarly, at any given time of recruitment to the teaching posts. Only the total number of reserved vacancies and the Section from which they are to be filed in should be determined. It would be enough if there required percentage is fulfilled as whole and not with reference to any particular post. It the reserved vacancies cannot be filled. It the resecvered vacabncies cannot be tilled, then so many posts as cannot be filied in may be kept vacant for six months and should be against advertised thrice. Even after readvertidates the posts there time if unable classes to candidates belonging to the open category.

5. In para. 4 of the Resolution it is stated that for giving effect to the aforesaid instructions, it will be necessary for the Universities to make statutes under S. 77C (I) under their respective Universities Act of 1974 and that for ensuring immediate implementation the Vice - Chancellors of the Universities may consider regulating the matter by issuing directions, pending making of the Statutes by their Universities, under Ci. (b) of S. 11(6) of the Act . S.11(6) (b) of the Act provides that where any matter is required to be regulated by the Statutes, Ordinances or Regulations, but no Statutes, Ordinances or Regulations are made in that behalf, the Vice - Chancellor may, for the time being regulate the matter by issuing such directions as he thinks necessary. In exercise of his powers under s. 11 (6) (b) the Vice - Chancellor issued a directive dt. Sept. 3, 1981, to give effect to the instructions contained in the aforesaid Government Resolution of Mar. 30, 1981. It is unnecessary to refer to the contents of this directive in detail, Suffice it to say that the directions issued by the Vice - chancellor are just a reproduction of the directions contained in the Government resolution of Mar. 30, 1981. Broadly stated it would be enough to bear in mind at this stage that the aforesaid Government Resolution or the subsequent directive issued by the Vice - Chancellor provides for the percentage of reservation qua each of the three categories of backward classes and it also provides that at any given time of recruitment only the total number of reserved vacancies and the sections from which they are to be filled in to be determined. It is further clarified that it would be enough if the required percentage is fulfilled as a whole and not with reference to any particular post. In other words, for fulfilling the required percentage laid down it need not be with reference to any single post. Indeed, the Resolution does not touch upon the aspect as to which particular post out of the total number of posts advertised should be reserved.

6. The impugned employment notice issued by the University is dt. July 27, 1984. This employment notice shows that applications were invited for a total number of 77 posts. The break-up shows, 13 posts of Professors 29 posts of Readers and 35 posts of Lecturers in different subjects were advertised. The employment notice provides for reservation in the following terms:

Reservation: Professors - Scheduled Caste - 3, Scheduled Tribe - 2 and VJ/NT - 1.

Readers - Scheduled Caste - 6, Scheduled Tribe - 4 and VJ/NT - 2.

Lecturers - Scheduled Caste - 7, Scheduled Tribe - 5 and VJ/NT - 4.

7. This is all that is said about reservation in the employment notice. Though various posts of professors, readers and lecturers subject wise have been advertised, the reservation is not subject wise, but is in general terms speaking only of the total number of posts reserved for each of the category of backward classes in the three categories of professors, readers and lecturers. This advertisement was followed by a corrigendum dt. Feb. 21, 1985. A further employment notice for additional posts was also issued and is dt. Aug. 1. 1985. We are really concerned in this petition with the employment notice dt. July 27, 1984, read with corrigendum dt. Feb. 21, 1985. Admittedly, the petitioners had applied for various posts pursuant to the employment notice of July 27, 1984. After the employment notices different Selection Committees were constituted under s.57 of the Act and they held interviews of the candidates. These interviews were held for 53 posts and 47 candidates were recommended to the Executive Council of the University for appointment to the respective posts in different subjects, the selection being made on the basis of merit without giving weightage or consideration on the basis of the policy of reservation The Executive Council thereafter held a meeting on 29the and 30th Mar., 1985. To consider the recommendations made by the Selection Committee and made - appointments of the 47 candidates to various posts, after making subject wise reservations for the first time in the said meeting The petitioners were amongst those who were appointed to the various posts. Pursuant to the decision taken by the Executive Council appointment orders dt. Mar. 30, 1985, were duly issued to the successful candidates among whom are the petitioners.

8. Thereafter some social organisations and social workers made representations to the Chancellor against the employment notice, the procedure followed in interviewing the candidates as also the appointments made in pursuance of the recommendations made for the appointment of these 47 teachers. It was alleged that the employment notice itself was bad on the ground that it was in violation of reservation policy. The Chancellor thereafter by his order dt. Feb. 22, 1986, was pleased to appoint One-Man Committee (consisting of Justice H.D. Patel, a sitting Judge of this Court) under S. 76 of the Act to make an inquiry in respect of the matter connected with the aforesaid advertisement of 77 posts of teachers, the interviews held for 53 posts of teachers and the appointments made by the Selection Committee to 47 posts the allegations contained in the representation received by him (i.e. Chancellor) from the aforesaid organisations and individuals and such matters germane to the aforesaid selection and appointment. In the preamble to the order some irregularities pointed out are-

(a) The qualifications stated in the advertisement in respect of some of the posts differ from the qualifications prescribed by the Academic Council.

(b) The University has not consulted the Academic Council as required under S. 24 (3) of the Nagpur University Act . 1974, with regard to the alterations made in the qualifications of the teachers.

(c) In the absence of specific reservation of particular posts for the backward class the concerned Selection Committee could not have adjudged the merits of the backward class candidates from this angle; and

(d) The decision of the Executive Council to treat various Plan Posts as reserved appears to be arbitrary and hence discriminatory'.

9. The One Man Committee after holding a public inquiry submitted its report dt. Sept. 24, 1986. On consideration of the report and the findings recorded therein, the Chancellor accepted the report.

10. At this stage it may be mentioned that the impugned employment notice dt. July 27, 1984, was also the subject matter of challenge in four Writ Petitions before the Nagpur Bench of this Court viz., Writ Petitions Nos. 385, 454, 497 and 503 all of 1985. In these writ petitions the contention fo the petitioners that obtaining of recommendation from the Board of University Teaching and Research (BUTR) before issuing the employment notice was mandatory under S. 32 (2) (iii) of the Act . This contention was accepted and the employment notice dt. July 27, 1984, was quashed and set aside with respect to the posts in those writ petitions. Further, in Writ Petitions Nos. 497 and 503 of 1985, the Division Bench restrained the Nagpur University from making any appointment without obtaining the recommendations from the BUTA. After taking into consideration the report of the One Man Committee and the decision of the Nagpur Bench of this Court in the aforesaid four writ petitions, the Chancellor directed the Vice - Chancellor to terminate the services of all the appointees including the petitioners in this petition. Accordingly, the Vice Chancellor issued orders of termination of services dt. April 21, 1987, in respect of the petitioners in this petition as well as others who are appointed under the impugned employment notice dt. July 27, 1984 read with corrigendum dt. July 27, 1984, read with corrigendum dt. Feb. 20, 1985 and also the further employment notice dt. Aug. 1, 1985. The notice of termination in respect of each of the petitioners is identical except with regard to the names of the petitioners whose services were terminated and the category of post held to him. It would, therefore, be sufficient to reproduce one such notice which has been served on the first petitioner:

1) The reservation policy adopted by the University is contrary to S. 57 of the Nagpur University Act :

2) The decision of the Executive Council allocating all reserved seats to VI th Plan posts is arbitrary and hence discriminatory;

3) The University has failed to comply with the mandatory provisions of S. 32 of the Nagpur University Act , 1974, for having not consulted the Board of University Teaching and Research; and

4) That the said Employment Notice is not in accordance with law.

And whereas the said Employment Notice dt. 22/7/1984 has been quashed by the High Court of Bombay in Writ Petitions Nos. 385, 454, 497 and 503 all of 1985 with respect to the posts in these Writ Petitions on the ground that the Board of University Teaching and Research of the Nagpur University was not consulted before the issue of the said Employment Notice:

And Whereas the High Court of Bombay. Nagpur Bench by the order in the above Writ Petitions Nos. 497 and 503 of 1985 has restrained the Nagpur University from making any appointments without obtaining recommendations of the BUTR.

And Whereas it is generally found that the BUTR of various faculties has not been consulted before the issue of the said Employment Notice.

And Whereas it is found that the - appointment under the said Employment Notice has not been in accordance with the law in force:

And Whereas the directions have been issued by the Chancellor to the Vice - Chancellor in exercise of his powers under S. 57(5) of Nagpur University Act to terminate your service:

Now Therefore, in exercise of the powers under the provisions of S. 57(5) and all other enabling powers in this behalf under the Nagpur University Act , I.M.A. Chansarkar, Vice- Chancellor, Nagpur University, hereby terminate your services as Lecturer forthwith with benefit of one month/s pay.

You are requested to collect one month's pay from the office of the University.

You are eligible to apply when the posts are readvertised, if otherwise eligible.

On the directions issued by

Chancellor, Nagpur University.

Sd/- M. A. Chansarkar.

Nagpur. 21st April 87, Vice - Chancellor.

11. The contents of the notice of termination show that the service was terminated firstly on the basis of the report of the One Man Enquiry Committee holding that the employment notice was had on four counts viz.

1) The reservation policy adopted by the University is contrary to S.57 of the Nagpur University Act :

2) The decision of the Executive Council allocating all reserved seats to VI th Plan posts is arbitrary and hence discriminatory;

3) The University has failed to comply with the mandatory provisions of S. 32 of the Nagpur University Act , 1974, for having not consulted the Board of University Teaching and Research:

4) That the said Employment Notices is not in accordance with law.

12. The second ground of termination is that the High Court has in the four writ petitions with espect to the posts in those writ petitions quashed the employment notice on the ground that the BUTR was not consulted before the issue of the Employment Notice and also that in two of the writ petitions that the High Court had restrained the University from making any appointments without obtaining recommendations of the BUTR and lastly it is generally found that the BUTR of various faculties has not been consulted before the issue of the Employment Notice. Simultaneously, with the order of termination the same day i.e. on April 21, 1987, the Vice - Chancellor in exercise of the powers under S.11(4) appointed each one of the petitioners in their original posts with immediate effect by protecting their pay and allowances in the present scales. It is however, made clear that the appointment is temporary.

13. The first question that arises for our consideration is whether non-reservation of the posts of the University Teachers subject wise in the Employment Notice is in contravention of the provisions and the policy contained in S.77C read with S.57 of the Act . By Act No. 32 of 1978 which amended certain provisions of the Act , For the first time the Legislature introduced statutorily a policy of reservation for the members of the scheduled castes and scheduled tribes in the Act . By the amending Act , S. 77C is inserted and s. 57(4) is amended S. 77C is inserted with the object of making a special provision for scheduled castes and scheduled tribes in service and posts in the University and its affiliated colleges and institutions. S. 57 deals with the subject of committee for selection and appointment of University Teachers. S.77C(I) provides that the University the affiliated colleges and the recognised institutions shall take into consideration, consistently with the maintenance of teaching standards and efficiency of administration, the claims of the members of the Scheduled Castes and Scheduled Tribes in making appointments to teaching and non-teaching posts under their respective control; and the University shall make the necessary statutes for reservation of adequate number of posts for members of such Castes and Tribes in the University, affiliated colleges and recognised institutions. It is not disputed that there are no statutes made by the University for reservation. Sub-sec. (2) of S. 77C, however, confers powers on the State Government to issue directions to the University in the matter of reservations, it provides-

'Notwithstanding any thing contained in this Act , the State Government shall have power to give to the University, from time to time, such direction as it may consider necessary in regard to categories of posts in which reservation of posts shall be made in favour of the members of the Schedule Castes and Scheduled Tribes, percentage of the posts to be reserved for them and any other matters connected with such reservation, and the University shall comply with such directions.

14. In exercise of the powers conferred under the said provisions the State Government has issued the directions by its resolution dt. Mar. 30, 1981, the contents whereof have been already mentioned above.

15. Turning to s. 57, sub-sec. (2) thereof provides for the constitution of the Selection Committee and sub-sec. (4) deals with the process of selection. Sub-sec (4) which has been the subject matter of controversy before us as its correct interpretation provides-

'(4)(a) Every post of a Teacher of the University, to be filled by selection shall be duly and widely advertised according to a draft, approved by the Executive Council together with particulars of the minimum and other additional qualifications, if any, required, the emoluments and the number of posts to be filled. Out of the posts to be filled the number of posts, if any, which are reserved for the members of the Scheduled Castes or Scheduled Tribes, and reasonable time shall be allowed within which the applicants may, in response to the advertisement, submit their applications.

(b) The date of the meeting of every Selection Committee shall be so fixed as to allow notice thereof being given of at least thirty days to each member and to the candidates, and the particulars of each candidates, shall be so sent to each members as to reach him at least seven days before the date of the meeting.

(C) The quoram to constitute a meeting of every Selection Committee shall be four members, fo whom at least two shall be persons nominated under Cl. (b) (v) of sub-sec. (2).

(d) The Selection Committee shall interview, adjudge the merits of each candidate in accordance with the qualifications advertised, and report to the Executive Council, the names arranged in order of merits of the person or persons, if any, whom it recommends for appointment to the general posts and reserved posts, it any, as advertised;

Provided that, for the post of Professor, a Selection Committee may, in preference to the candidates who have applied and appeared before it, recommend for appointment the names of any other persons who may not have applied or appeared before it, and who are duly qualified.

(e) The Executive Council shall appoint from amongst the persons required to fill the general posts and reserved posts, if any, as advertised;

Provided that, where the Executive Council proposes to make an appointment other wise than in accordance with the order of merit arranged by the Selection Committee, it shall record its reasons in writing and submit to the Chancellor, who may approve the proposal or return it to the Executive Council for reconsideration. After consideration, if the Executive Council desires to pursue its original proposal, it shall refer the matter again to the Chancellor for his decision which shall be final;

Provided further that, where a Selection Committee recommends to the Executive Council the name of one person only and that person is not acceptable to the Executive Council, the executive Council shall record its reasons in writing for not accepting the recommendation, and direct the Registrar to advertise the vancany again and convene a meeting of the Selection Committee for making fresh recommendations, and, in so doing communicated to every members of the Selection Committee the reasons recorded as above;

16. It is urged by Mr. Manohar, the learned counsel appearing for the petitioners that the provisions of S. 57(4) do not make it obligatory that the advertisement should specify the reservation of posts subject wise. According to him, it is enough compliance of the policy contained in s. 57(4) if the total number of posts reserved is mentioned in the advertisement. In support of his contention, the learned counsel relied on the phraseology 'reservation of adequate number of posts' used in s. 77C(I). He also relied on the wording of the provisions of S.77C(2) conferring power on the State Government to issue directions 'in regards to categories of posts in which reservation of posts shall be made' and 'percentage of posts to be reserved'. It is submitted that neither S.77C(I) nor. S. 77C(2) refers to reservation of posts subject wise. It is also urged that even by the directions issued by the State Government by its resolution dt. Mar. 30, 1981, the University is not asked to make reservation subject wise. It was pointed out that the said resolution does not refer to reservation of posts subject wise, but on the other hand mentions that 'only total number of reserved vacancies and the Sections from which they are to be filled in should be determined and further that 'it would be enough, if the required percentage is fulfilled as a whole and not with reference to any particular post'. It is further submitted that even S. 57(4) (a) talks of 'the number of posts to be filled, out of the posts to be filled the number of posts, if any, which are reserved for the members of the Scheduled Castes or Scheduled Tribes' and makes no reference to reservation of posts subject wise. Then it was pointed out that even S. 57 (4) (d) and (e) refers to 'the appointment of persons to the general posts an reserved posts, if any, as advertised'. According to the l4earned counsel, on a reading of the provision of S. 57(4)(a), (d) and (e) there is nothing to indicate that the University must specify the reservation of posts subject wise at the stage of advertisement and it would be open to the Executive Council to make the necessary reservation of posts subject wise at the time of consideration of recommendations made by the Selection Committee as has been done in the present case. Strong reliance was placed by the learned counsel on the observations of the Supreme Court in General Manager, Southern Railway v. Rangachari : (1970)IILLJ289SC , which observations have been quoted with approval in a later decision fo the Supreme Court in State of Punjab v. Hira Lal : [1971]3SCR267 .

17. On the other hand the learned Advocate General submitted that S. 57 prescribes a specific mode of selecting teachers and, therefore, no other mode can be adopted for doing so even against the reserved posts; that S.57 (4)(a) speaks of advertisement also for reserved posts which must be with sufficient identification so that as stated in these provisions 'the applicants may in response to the advertisement, submit their applications' and, therefore, reservation must be done at that stage only; that under S.57(4)(b) every member of the Selection Committee must know all the details about a candidate and thus vis--vis a particular reserved post, the persons applying to the category of posts is already fixed at that time and is not variable,; that under S.57(4)(d) the Selection Committee has to consider and recommend the candidates separately for general and reserved posts and as such there cannot be a joint consideration of persons belonging to the reserved category and general category; that the words 'if any' in S.57(4)(d) refer to the advertisement itself and consequently the reservation must be in the advertisement itself; that under S. 57(4)(e) the Executive Council makes appointments keeping in view the separate recommendations for general an reserved posts; that right from the stage of advertisement to the stage of appointment everything is compartmentalised depending on whether the posts are reserved or not; that reservation of posts after the appointments are recommended by the Selection Committee and made by the Executive Council is against the procedure prescribed by S. 57 and lastly that on principle, there can in law be no reservation of posts when the competition is open to all and reservation of posts after the selection is made from the open category is contradiction in terms. The learned Advocate General also submitted that the directions issued under S.77 cannot be in violation of the policy contained in S. 57. We see considerable merit in the submissions of the learned Advocate General.

18. Undoubtedly, there may be cases where a particular number of identical posts such as clerks to be filled in. in such cases the question of reservation of a particular post out of the total number of such posts would not arise, but it would be sufficient to state only numerically the posts reserved for the backward community. However, the situation is entirely different while dealing with the question of reservation, selection and appointment of teachers under S.57(4) where necessarily the posts have to be advertised subject wise. This is a natural because the requirement of teachers would be for different subjects and not any single subject. If one looks at the advertisement in question, it would be seen that each of the posts in all the three categories viz, the Professors. Readers and Lecturers is advertised subject wise. However, reservation in respect of these categories of posts is only mentioned numerically and not subject wise. For instance, as regards the posts of Professors all that is stated is that three posts are reserved for Scheduled Castes two posts for Scheduled Tribes and one post is reserved for VL/NT. Thus nobody is told by the advertisement as to which particular post of teachers is reserved. Suppose a candidates of the Scheduled Caste has the necessary qualification in the subject of Zoology and wants to apply for the post of Professor in Zoology, how does he know whether the post is reserved or not on the date on which he has to apply for that post? The basis of any policy of reservation - necessarily; implies that the person applying must know whether a particular post is reserved or not. A candidate applying must know with certainty that he is applying must know with certainty that he is applying for a particular post which is either reserved or not reserved. It is the basic concept of the policy of reservation under Art. 16(4) of the Constitution that competition by general candidates with the members of the backward community with regard to the reserved posts cannot be allowed. Reservation implies that competition must be limited among the candidates of the particular backward community only. Reservation, therefore, has to be made regarding identifiable posts and a fortiori that must be done anterior to the stage of selection which means at the stage of the advertisement calling for applications.

19. In this connection it would be useful to refer to the observations of the Supreme Court in T. Devadasan v. Union of India : (1965)IILLJ560SC of the majority judgment it is observed;

'It is an accepted fact that members of the Scheduled Castes and Tribes are by and large backward in comparison with other communities in the country. This is the result of historical causes which it is not necessary for us to deal here. The fact, however remains that they are backward and the purpose of art. 16(4) is to ensure that such people, because of their backwardness should not be unduly handicapped in the matter of securing employment in the various services of the State. This provisions, therefore, contemplates reservation of appointment or posts in favour of backward classes who are not adequately represented in the services under the State. Where, therefore, the State makes a rule providing for reservation of appointments and posts for such backward classes, it cannot be said to have violated art. 14, merely because members of the more advanced classes will not be considered for appointment to these posts even though they may be equally or even more meritorious than the members of the backward classes, or merely because such reservation is not made in every kind of service under the State. Where the object of a rules is to make reasonable allowance for the backwardness of members of a class by reserving certain proportion of appointments for them in the public service of the State what the State would in fact be doing would be to provide the members of backward classes with an opportunity equal to that of the embers of the more advanced classes in the matter of appointment to public services. If the reservation is so excessive that it practically denies a reasonable opportunity for employment to members of other communities the position may well be different and it would be open then for a member of amore advanced class to complain that he had been denied equality by the State.'

20. The observations of the Supreme Court show that the members of the more advanced classes are to be excluded from consideration for appointment in respect of the reserved posts, though they may be equally or more meritorious than the members of the back ward classes. Non-reservation of posts subject wise obviously leads to the curious and unjust phenomenon of allowing competition by members of the more advanced classes. The consideration for a reserved post at the time of selection must be qua members of the backward classes for whom reservation is made. If the reservation of the posts under s.57(4)(a) is not made subject wise, it necessarily results in allowing any person who has requisite qualifications, whether he belongs to the backward class or not to apply for any of the posts. In the circumstances, the further consequence would be that the selection committee acting under S.57(4)(d) will consider and adjudge the merit of all the candidates together whether they belonged to the reserved class or not for every post. Such a consideration by the Selection - Committee cannot in law be a consideration for a reserved post at all. In our opinion, the consideration of the candidates belonging to the backward classes only to the reserved posts is an essential ingredient of reservation policy. A mere numerical reservation would be permissible only where the posts to be filled in are qualitatively identical; but when qualitatively the posts are different as in the present case, the advertisement must nominate identifiable posts for the purpose of reservation. If the candidate is not told that it is reserved post and interviewed for the post. It would be fallacious to treat it as a reserved post by virture of a decision of the Executive Council which comes only after the recommendations are made by the Selection committee. Non - reservation of posts in the impugned advertisement in the present case is a clear denial to a particular category viz., the members of the Scheduled Castes and Scheduled Tribes of being considered as belonging to that community.

21. It is true that S. 77C(I) does not specifically refer to reservation of posts subject wise. This is so because the section merely lays down a policy and it is for the University to make the necessary statutes consistent with the policy and the provisions of the Act .

22. Now, turning to the instructions issued by the State Government under S. 77C(2) in the resolution of Mar. 30, 1981, on which reliance is placed by the petitioners we are unable to see how it helps the contention of the petitioners. Paras 1 and 2 deal with the percentage of reservation for the different backward classes. All that para 3(b) states is that at any given time of recruitment to the teaching posts only the total number of reserved vacancies and the sections from which they are to be filled in should be determined and it would be enough, if the required percentage is fulfilled as a whole and not with reference to any particular post. This direction only deals with how the required percentage is to be fulfilled and what should be the total number of reserved vacancies. This ahs nothing to do with the other mechanics of reservation viz., the manner in which the posts are to be reserved, particular when they are qualitatively different in the sense that the posts required different qualifications and are for different subjects. The resolution, in our opinion, does not deal with this aspect at all. As far as s.57(4) (a) is concerned, it is not possible to accept the contention that phraseology used therein viz., out of the posts to be filled the numbers of posts, if any, which are reserved can be construed to mean that the posts are to be reserved only numerically, even though qualitatively they are entirely different. If the posts to be filled in are qualitatively similar, for instance, if the requirements is of a certain number of Professors in the same subject and requiring identical qualifications, then the question of reserving a particular post would not arise. All that has to be mentioned is the total number of posts reserved. In such a case the Selection Committee will give consideration to the applicants of such number of posts which are reserved separately. However, if the posts are qualitatively different as in the present case, there is no alternative, but to specify the particular posts subject wise because without that it cannot be said that there was any reservation in the eye of law at all. S. 57(4)(a) requires that reasonable time shall be allowed within which the applicants may, in response to the advertisement, submit their applications. The expression in response to the advertisement is important. If a member of the Scheduled Caste who has the requisite qualifications in the particular subject such as Bombay cannot submit an application for that particular post since he is not told by the advertisement as to whether that particular post is reserved for the members of the Scheduled Caste. Then s. 57 (4) (d) requires the Selection Committee to submit recommendations for appointment to the general posts and reserved posts, if any, as advertised. The expression 'for appointment to the general posts and reserved posts, if any, as advertised is significant. The Selection committee is required to make a recommendation for appointment to both the general and reserved categories and that too 'as advertised'. If there is no advertisement in the matter of reservation, the question does not arise, but if there is such advertisement the Selection Committee must be able to find out from the advertisement as to whether a particular post subject wise is reserved to enable to give consideration to the candidates 'applying' for the particular post separately. The same phraseology is contained in S. 57(4)(e) regarding the powers of the Executive Council. The Executive council, therefore, has also to look to the advertisement and see whether the post is shown as reserved in the advertisement. If the post is not shown to be reserved in the advertisement, there would be no question for the Executive Council to reserve a particular post subject wise at the stage when the Executive Council considers the recommendations made by the Selection Committee. Reading the policy contained in S. 57(4)(a), (d) and (e) as also the requisites of a reservation policy under Art. 16(4), it is clear that the impugned advertisement under which severed posts which are qualitatively different in the sense that the posts advertised are subject wise, the University was bound to specify the reservation of a particular post subject wise in the advertisement itself.

23. Reliance was placed by Mr. Manohar on the following observations in para 9 in the case of State of Punjab v. Hiralal : [1971]3SCR267 :

'In our opinion having regard to the fact that we are construing the relevant expression 'reservation of appointments' in a constitutional provision, it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing a certain percentage in that behalf as wall as reservation of certain initial posts in order to make the reservation of appointments more effective'.

24. On the basis of the above observation it is submitted that fixing a certain percentage of the posts without specifying the posts which are reserved is a legally permissible mode of reservation. Merely because it is possible to say the other mode of reservation viz., the reservation of certain identifiable initial posts can be said to be better or more effective way of making the reservation, that by itself is no ground for faulting the first method adopted in the impugned advertisement.

25. It may be recalled that para 27 of the Judgment in Rangachar's case : (1970)IILLJ289SC , has been reproduced in para 9 of the Judgment in Hira Lal's case : [1971]3SCR267 . In Rangachari's case the two principal questions involved were (I) whether Art. 16(4) of the Constitution postulates reservation to ex-cadre posts and (2) whether reservation can be made only at the stage of initial recruitment and not at subsequent promotional stage. The Supreme Court held that Art. 16(4) of the Constitution does not contemplate reservation of only ex-cadre posts. The Supreme Court also held that the reservation is permissible not only at the stage of initial recruitment, but also at the subsequent promotional stages. During the course of the arguments it was urged in Rangachari's case that the posts must not refer to selection posts, but to posts filled by initial appointments. The context in which the observations were made in Rangachari's case : (1970)IILLJ289SC would be apparent from para 27 of the majority judgment in Rangachari's case which runs thus:

'We must in this connection consider an alternative argument that the word 'posts' must refer not to selection posts but to posts filled by initial appointment means reservation of certain percentage in the initial appointments and reservation of posts means reservation of initial posts which may be adopted in order to expedite and make more effective the reservation of appointments, themselves. On this construction the use of the word 'posts' appears to be wholly redundant. In our opinion, having regard to the fact that we are construing the relevant expression 'reservation of appointments' in a constitutional provision it would be unreasonable to assume that the reservation of appointments would not include both the methods of reservation, namely, reservation of appointments by fixing a certain percentage in that behalf as well as reservation of certain initial posts in order to make the reservation of appointments more effective. That being so, this alternative argument which confines the word' posts' to initial posts seems to us to be entirely unreasonable. On the other hand, under the construction by which the word 'posts' includes selection posts the sue of the word 'posts' is not superfluous but serves a very important purpose. It shows that reservation can be made not only in regard to appointment which are initial appointments but also in regard to selection posts which may fall to be filled by employees after their employment. This construction has the merit of interpreting the words 'appointment' and 'posts' in their broad and liberal sense and giving effect to the policy which is obviously the basis of the provisions of Art. 16(4). Therefore, we are disposed to take the view that the power of reservation which is conferred on the State under Art. 16(4) can be exercised by the State in a proper case not only by providing for reservation of appointments but also by providing for reservation of selection posts. The construction, in our opinion, would serve to give effect to the intention of the Constitution makers to make adequate safeguards for the advancement of backward classes and to secure for their adquate representation in the services. Our conclusion, therefore, is that the High Court was in error in holding that the impugned circulars do not fall with in Art. 16(4)'.

26. I fail to see how the general observations made by the Supreme Court regarding the methods of appointment in the context of the argument made before it would have relevance to the mechanics of reservation as contemplated by the Scheme of Reservation in s. 57(4). Further we are here concerned with an advertisement of posts subject wise in respect of which the only way to make reservation is to reserve the posts subject wise at the stage of advertisement itself, this is apparent from the scheme of S. 57(4). I am unable to see how the ratio of the decision of the Supreme Court in Rangachari's case : (1970)IILLJ289SC can be relevant to the question involved in this case. Mr. Manohar did not dispute that subject wise reservation had to be made in view of the fact that the posts differ subject wise, but suggested that this could be done at the stage of selection. Indeed, admitted the Executive Council after receipt of the recommendations of the Selection Committee did make reservation subject wise but this method is patently opposed to the Scheme of S. 57(4) which has been explained above. The advertisement itself must be in respect of some identifiable posts. In other words, it is at the very initial stage i.e. at the stage of advertisement under S.57 (4) (a) that subject wise reservation must be made, more so, when different posts in different subjects are the subject matter of the advertisement.

27. Before parting with this aspect of the matter, reference may be a decision of the Division Bench of Karnataka High Court in S. S. Anegonda v. Karnataka Public Service Commission (1980) SLR 825, relied on by Mr. Manohar. The facts of that case were that the Karnataka Public Service Commission invited application for 35 posts of lecturers in various subjects; out of them, four posts were reserved for persons belonging to the backward classes, in view of the Karnataka Service and Recruitment Rules, 1977, which provide for reservations of 10% posts required to be filled in by direct recruitment. The reservation of four posts was not subject wise . in the selection, 35 candidates were selected mo merits which included on belonging to a backward class. No one else was selected to the four reserve posts. The position of the petitioner who had applied for the post of a lecturer in Economies in order of merit in the subject was No. 7. The petition claimed appointment to the post of lecturer in Economics. The Public Service Commission took a stand that as no particular post was reserved and six persons from general category were more meritorious in the subject of Economies, the petitioner was not entitled to the appointment, the High Court had that the petitioner was entitled to preference over persons belonging to general category as four reserved posts were not filled in despite a candidates being available. The High Court upheld the contention f the petitioner that four candidates, if available has to be selected, whatever be the method of selection. The petitioner thus succeeded on the ground which was advance on his behalf. The decision proceeds upon an assumption and holds that whatever be the method of selection, at least four candidates from the petitioner was the only candidate from that category, he had a right to selection irrespective of his position on merit.

28. It is sought to be argued both by Mr. Manohar appearing for the petitioners and Mr. Sanyal appearing for the University and the Vice- Chancellor that since the amendment of the Act in the year 1978 making a statutory provisions for reservation, similar advertisements were issued in the past. It is also urged that under similar circumstances, the order Universities also issued advertisements without mentioning reservation of posts subject wise. I am not impressed by this submission. A wrong practice followed in the past cannot validate the impugned advertisement which is found to be in violation of law, the legality of the impugned advertisement will have to be adjudged on the correct interpretation of the relevant legal provisions and not on the basis of a patently wrong practice followed earlier. There is, therefore, no substance in this contention.

29. In view of what has been discussed above, the decision in Dr. Bhakre's case 1985) LIC 1481 that a post wise reservation for backward classes in respect of the posts of Professors, Readers and Lecturers advertised was no necessary and that it is enough, if the posts reserved are mentioned merely numerically cannot be regarded as good law.

30. The impugned orders of termination of the appointment of the petitioners have been passed by the Chancellor in the exercise of powers conferred on him under S.57(5) which reds as under:

'If, on a petition by any person directly affected or suo motu, the Chancellor, after making or having made such inquiries of obtaining or having obtained such explanations, as may be or may have been necessary, is satisfied that the appointment of a Teacher of the University made by any authority or officer of the University, made, by any time on or after the 1st day January, 1971 was not in a accordance with the law at that time in force, the Chancellor, order notwithstanding anything contained in the contract relating to the conditions of service of such Teacher, directed the Vice - Chancellor to terminate his appointment after giving him one months' notice or one month's salary in lieu of such notice. And the Vice - Chancellor shall for with comply and take steps for a fresh selection to be make, the person whose appointment ahs been so terminated shall be eligible to apply again for the same post.'

31. What is the meaning of the expression was no in accordance with law that time in force' appearing in the said provision? As regards the reservation policy with which we are concerned, the simplest answer is the provisions of S. 57(4) read with S.77-C as they stood on the date when the advertisement was issued and the selections made. Obviously, if these provisions are amended or abrogated or substituted by another provision altogether later such mew provisions could not be said to be the law in force at the material time and the validity of the appointments would be judged on the provisions of s.57(4) read with S.77-C as they stood at the material time i.e. at the time of the advertisement and selection. However, this is not the aspect which troubles us in this case, but that is contended before us is that these provisions have been interpreted in a particular manner by a Division Bench of this Court in Cr. Bhakre's case which decision had not been overruled or disapproved on the date of the passing of the order by the Chancellor and even thereafter till this date and the law as interpreted by this date and the law as interpreted by this Court in Dr. Bhakre's case 1985 LIC 1481 would be the binding law in force on the date of the appointments. Reliance is placed on the observations of a Full Bench decision of Gujarat High Court in Anand Municipality v. Union of India : AIR1960Guj40 . In that case the question as to the interpretation of the expression 'any law in force immediately before the appointed day' in s. 87 of the Bombay Reorganisation Act , 1960, came up for consideration. The Full Bench held that the said expression in S.87 of the Said Act should not receive any technical meaning but should be understood in a sense which gives it a fair measure of amplitude and the crucial words so read must lead to the conclusion that decisions of the High Court of Bombay given before the appointed say are binding on Gujarat High Court as the law in force.

32. It is true that so long as Dr. Bhakre's case has not been overruled the law as stated in that decision would be of a binding nature. However, it must be understood that when it comes to the exercise of the jurisdiction by the Chancellor under S. 57(5), the Chancellor would acquire jurisdiction only if he is satisfied that the appointment of teachers was at the time when made, not in accordance with law, as then understood by the Chancellor. The exercise of powers by the Chancellor, if challenged in any proceeding, has to be judged in the light of the interpretation of the provisions of S. 57(4) read with S.77-C either as interpreted in Dr. Bhakre's case or if that view is not accepted by a larger Bench and the same is overruled, by the interpretation propounded by the larger Bench which overruled Dr. Bhakre's decision. This contingency may occur even in the event of the Supreme Court overruling the decision in the very matter, if carried to the Supreme Court, but decided later. It may also happen that after the Chancellor passes the order the Supreme Court may have occasion to deal with the decision in Dr. Bhakre's case 1985 LIC 1481 in some other, matter and holds that it was wrongly decided. The interpretation on the phrase as suggested would lead to absurd results of sustaining the advertisement which is contrary to law. When the Chancellor rightly or wrongly assumes jurisdiction and taken the view that the impugned advertisement was not in accordance with law or the entire process of selection was vitiated by reason of the impugned advertisement being not in accordance with law, such action when challenged in a Court of Law of the Court may either hold that in view of the decision in Dr. Bhakre's case the action is illegal or a larger bench of this Court which has the power to overrule a decision of a Division Bench may hold that Dr. Bhakre's case is wrongly decided and since in the instant case the advertisement of posts is not subject wise, the same is contrary to S. 57(4) and the selection followed thereafter is bad and illegal. If the larger bench takes such a view then it cannot still be said that the Chancellor was wrong in assuming powers under S.57(5) on the basis that at the time when the appointments were made the view taken in Dr. Bhakre'' case held the field. In my opinion, the chancellor's action under S.57(4) when challenged in a Court of Law ahs to be adjudged in the light of the law laid down in that very case i.e. in the case in which that particular action is the subject matter of the challenge.

33. It is well settled position in law that whenever a previous decision is overruled by a larger bench the previous decision is completely wiped out. On this aspect it is sufficient to make a reference to two decisions of the Supreme Court (I) Golak Nath v. State of Punjab, : [1967]2SCR762 and (2) Ramdas Bhikaji Chanudhari v. Sadandand, : 1980CriLJ111 . In Choudhari's case the Supreme Court observed that it is well settled that whenever a previous decision is overruled by a larger bench the previous decision is completely wiped out and Art. 141 will have no application to the decision which has already been overruled and the Court would have to decide the case according to law laid down by the latest decision and not by the decision which has been expressly overruled. In Golak Nath : [1967]2SCR762 it was observed that the Judge does not make the law but only discovers or finds the true law. The law ahs always been the same. If a subsequent decision changes the earlier one, the latter decision does not make law but only discovers the correct principle of law. The principle enunciated by the Supreme Court would a fortiori apply to the facts of this case. If we overrule the decision in Dr. Bhakre's case 1985 LIC 1481 and interpret S.57(4)(a) it would mean that the advertisement in question should have mentioned reservation of posts subject wise and this view must be deemed to exist on the date of the date of the impugned order of the Chancellor (as far as the impugned action of the Chancellor is concerned). In other words the expression 'the law at that time in force used in S.57(5) must be the law as interpreted by us in this case and not as interpreted in Dr. Bhakre's case. By our present decision, the view taken in Dr. Bhakre's case as to the interpretation of S. 57(4) stands overruled and in the words of the Supreme Court, the said previous decision in Dr. Bhakre;s case in completely wiped out and replaced by the law laid down by us. We have held that Dr. Bhakre's case was wrongly decided. We have also held that the impugned advertisement was illegal and contrary to the provisions of S.57(4) (a) as the reservation of posts was not subject wise and, therefore, the Chancellor was perfectly within his powers in taking the view that the impugned advertisement was contrary to the law at that time in force.

34. It was urged that the view that we are taking would work hardship on the petitioners who were not responsible to the issuance of the illegal advertisement. This argument does not hold water, it could as well be argued that the non-reservation of posts subject wise has the effect of depriving the members of the backward community to the posts which had to be reserved for them. The question is one of jurisdiction. It is based on the satisfaction of the Chancellor that the appointment of the teachers was not in accordance with law at that time in force. We have pointed out as to what was the law in force a the time of the appointment. As pointed out by us above, the impugned advertisement and consequently the appointments made therein were not in accordance with the law contained in S. 57(4).

35. Even if we were to accept Mr. Manohar's contention as to the interpretation of the expression 'the law at that time in force' it means that in view of the decision in Dr. Bhakre's case S.57(4) cannot be said to be contravened by reason of the impugned advertisement not providing reservation of posts subject wise. That will not in the facts of this case advance the case of the petitioners any further, for, the Chancellor has passed the order of termination not only on the ground that the employment notice is not in accordance with law , but also on the ground that in various writ petitions the employment notice was struck down with respect of the posts in those writ petitions on the ground that the Board of University Teaching and Research of Nagpur University was not consulted before the issue of the employment notice. If Mr. Manohar is right in his submission that the Chancellor was bound by the decision in Dr. Bhakre's case 1985 Lab IC 1481; similarly he was bound by the decision of this Court in the various writ petitions which struck down the employment notice because the Board of University Teaching and Research of Nagpur University was not consulted before the issue of the employment notice. S.32 of the Act inter alia provides for the exercise of the powers and performance of duties on the pat of B.U.T.R. Sub-clause (iii) of sub-sec. (2) of S. 32 provides that the Board shall recommend to the Executive Council the requirements regarding Teachers in the respective subjects for teaching on behalf of the University. This being not done prior to the employment notice, a Division Bench of this Court in Writ Petitions Nos. 385, 454, 497 and 503 all of 1985 struck down the employment notice dt. July 27, 1984,with respect to the posts in those writ petitions on the ground of the failure the employment notice. The notice of termination also refers to two orders passed in two of these Writ Petitions viz. Writ Petition Nos. 497 and 503 of 1985 restraining University from making any appointment without obtaining the recommendations from the B.U.T.R. It is also stated in the notice of termination that it is generally found that B.U..T.R of various faculties were not consulted before the issue of the employment notice, the view taken by this Court in the aforesaid writ petitions is binding on the Chancellor as much as decision of this Court as to the interpretation of S.57(4). Even ignoring the ground of illegality of the employment notice mentioned in the order of termination, there was before the Chancellor also the view of this Court as regards the construction of Section of S.32 of the Act . that non-consultation with the B.U.T.R. vitiates the employment notice being the view expressed by this Court was equally binding on the Chancellor and on that basis alone, the Chancellor could assume jurisdiction on the ground that the appointment of the petitioners is not in accordance with law at that time in force. Taking any view of the matter, therefore, the chancellor had the necessary jurisdiction and material to proceed on the basis that the employment notice was illegal on the ground of failure to consult the B.U.T.R. before issuing the employment notice.

36. At this stage it must be made clear that the correctness of the decision of this Court in Writ Petitions Nos. 385, 454, 497 and 503 all of 1985 as well as Writ Petitions Nos. 497 and 504 of 1985 was not called in question by Mr. Manohar, it was only faintly argued that the prior consultation with the B.U.T.R. was not mandatory and even subsequent endorsement by the B.U.T.R cured the defect, if any. It was urged before us that the chancellor himself by his letter dt. Mar. 2, 1985, to the Vice-Chancellor asked the University to conduct the interviews as fixed because if the appointments to the posts were not made before 31st Mar., 1985, these posts may lapse. A careful perusal of this letter would indicate that the Chancellor was fully aware of the provisions of S. 32 and the other connected provisions of the Act . The chancellor also directed the University that it should ensure that the B.U.T.R. makes it recommendations to the Executive Council as reagards the requirements regarding teaching in their respective posts well before the University makes its recommendation to the Executive Council and the University Grants Commission. What is important is the last para of the letter where it is clearly stated that the directives contained in the letter have issued without prejudice to the outcome of the Writ Petitions filed or that may be filed in this regard. In any event, this direction would be contrary to the provisions of S. 32 which have been interpreted by the Division Bench of this Court in the aforesaid writ petitions filed against some of the appointments on the grounds that B.TU.T.R. was not consulted and that prior consultation was mandatory. I may mention at this stage that the correctness of the decision, in the aforesaid writ petitions has not been challenged before us by Mr. Manohar. Mr Manohar, however, relied on the decision of the Supreme Court in Escorts : 1986(8)ECC189 . In that case the question was as to whether the word ' permission ' used in s. 29(I) of the Foreign Exchange Regulation Act means 'permission' previous of subsequent. In the context of the Scheme of S. 29 and the provisions of that Act the Supreme Court held that there was no justification whatsoever for limiting the expression 'permission' to 'previous permission' only,. What is necessary is that the permission of the Reserve Bank of India should be obtained at some stage for the purchase of shares of Indian companies by non-resident companies. As far as the enactment viz. The Nagpur University Act , 1974, with which we are concerned, the provisions cannot be construed merely on the basis of the construction put on the word 'permission' contained in S.29 of the Foreign Exchange Regulation Act in the Escorts case. We may emphasise that there was not the slightest attempt on the part of the learned counsel to raise the contention that the said writ petitions which involved the interpretation of s.32 of the Act were wrongly decided. Under the circumstances, we must proceed on the basis of the said decision stand and, therefore, the Chancellor was justified in holding that the employment notice was illegal in view of the decision of this Court in Writ Petitions mentioned in the impugned order or termination. It is true that the employment notice was quashed with respect to posts in those writ petitions. However, as far as the legal position is concerned, the decision as to interpretation of S. 32 would apply to all the posts where B.U.T.R. is not consulted before issuing the employment notice. It is not in dispute that the employment notice was issued without the consultation of B.U.T.R. or B.U.T.R taking any action under s.32 of the Act . the ratio of the decision is relevant and that would apply to all the posts. Moreover, assuming that the view taken by this Court in those writ petitions as regards the interpretation of S. 32 was wrong and the decision given by this Court in the said writ petitions held the field at the time of the impugned order of termination, it would mean the acceptance of our view that the law as propounded by us would be binding and not the interpretation of S.57(4) by the Division bench of this Court in Dr. Bhakre's case 1985 LIC 1481 which as held by us above is wrongly decision.

37. Taking any view of the matter therefore, the chancellor was entitled to hold that the appointments to various posts under the impugned employment notice were contrary to the law then in force in as much as the employment notice was not in accordance with law as being in contravention of the policy contained in S.57(4) read with S.77-C and / or the mandatory provision of S.32 were not followed.

38. Before parting with this topic there is one more aspect which needs to be borne in mind. Take for instance the case of an order of termination based solely on the grounds of non-observance of the policy of reservation laid down in s.57 (4). If the phrase 'the law at that time in force' is construed in the manner suggested by Mr. Manohar, it would follow that S.57(4) as interpreted in Dr. Bhakre's case 1985 LIC 1481 would be the law in force at the time when the Chancellor took action under S.57 (5). If that be so, the impugned advertisement would per se be valid and it would be futile for this Court to deal with the academic question as to whether Dr. Bhakre's case was rightly or wrongly decided. The High Court normally does not decide questions which are not necessary for disposal of the matter and since in this case the impugned advertisement must be treated as valid and the order of the Chancellor, if made, only on that count would automatically fall as being contrary to Dr. Bhakre's case. Supporing the University issued a further similar advertisement after the date of the impugned advertisement on the same ground, such advertisement would also have to be treated as valid because it would be consistent with the view taken in Dr. Bhakre's case. This would be an endless affair and the illegality thus perpetuated. Under the circumstances, if we are of the opinion that Dr. Bhakre does not correctly interpret S.57(4) and we overrule the same, it must be held that the law laid down in Dr. Bhakre's case being not good law, the advertisement which is the subject matter of this very petition must be judged in the light of the correct law as laid down by us.

39. It is necessary to advert to one more aspect urged before us by Mr. Manohar. Assuming that we were to hold that the chancellor was wrong in relying on one of the two grounds, whether that would vitiate the satisfaction reached by him on the ground that it would not be possible to predicate as to whether the Chancellor could have reached the satisfaction on the other ground which is legally sustainable. In other words his contention is that if the Chancellor could not rely on the ground of non-observance of reservation policy contained in S.57(4) it would not be possible to predicate that the Chancellor would have acted solely on the basis of the ground stated in the termination notice. In this connection I may refer to a decision of the Supreme Court in the State of Maharashtra v. Babulal Kriparam Takkamore : [1967]2SCR583 , where it has been held that where an order is based on several grounds, some of which are relevant then if there is nothing to show that the authority would have passed the order on the basis of relevant and existing grounds that order cannot be sustained. Where, however, the court is satisfied that the authority would have passed the order on the basis of the other relevant an existing grounds and the exclusion of irrelevant or non-existing ground could not have affected the ultimate opinion of decision of the authority, order has to be sustained. The Court in that case held as the order of the State Government superseding the Nagpur Municipal Corporation was based on two grounds one of which was relevant and the other irrelevant, was valid, the fact that one of those grounds was irrelevant did not affect the order inasmuch as the second ground showed that in the opinion of the State Government the ground was serious enough to warrant action under s. 408(I) and was sufficient to establish that the Corporation was not competent to perform its duties under the city of Nagpur Corporation Act . This decision was followed by the Supreme Court in a later case in Swaran Singh v. State of Punjab : AIR1976SC232 (Sec observations in para 18). In the present case both the grounds viz., the policy of reservation under S.57(4) not having been followed in the impugned advertisement and as such not in accordance with law as also the ground that B.U.T.R. was not consulted before issuing the advertisement which is mandatory as per the decision of this Court in the various writ petitions are equally serious and go to the root of the matter and, therefore, the satisfaction of the Chancellor about the advertisement being illegal on any one of these two grounds can be sustained. Even assuming that Dr. Bhakre's was the law in force at the time of the appointment of the petitioners, the appointment would still be bad as they suffer from a serious infirmity viz. Non- observance of the mandatory requirements of S. 32 as interpreted by the Court in the various writ petitions referred to in the order of termination.

40. It was then urged by Mr. Manohar that the impugned order of termination of appointment is bad and illeggal as the order was passed by the Chancellor without giving any hearing to the petitioners. He submitted that the order of termination vitally affects the petitioners, he submitted that the principles of natural justice ought to have been followed before passing the said order as the same had vitally affected the petitioners. According to him, audi alterem parem rule cannot be said to be excluded by S. 57(5), particularly in view of the fact that the order entails civil consequences viz. That of the petitioners losing their employment. Reliance was placed by the learned counsel on various decision of the Supreme Court including Institute of Chartered accountants of India v.L.K. Ratna : [1987]164ITR1(SC) ; K.1. Shephard, v. Union of India : (1988)ILLJ162SC ; Olga Tellis v. Bombay Municipal Corporation : AIR1986SC180 and Sc L. Kapoor v. Jagmohan : [1981]1SCR746 on the question of observance of the provisions of natural justice.

41. A reading of the provisions of S. 57(5) which has been quoted in extenso above would indicate that by necessary implication the principles of natural justice must be read therein. There are three important aspects of this provision which throw considerable light on the question as to whether it excludes hearing being given to the affected parties. Firstly, the Chancellor has to be satisfied after making or having made such inquiries or obtained such explanations as may be or may have been necessary, that the appointment of a teacher was not in accordance with law at that time in force. Secondly, the order of the Chancellor results in the termination of the appointment of teacher. In order words the order entails civil consequence on the teacher concerned. Lastly, the order is discretionary as appears from the use of the word 'may' in the expression used in the provision viz. 'the Chancellor may by order, not with standing...........direct Vice - Chancellor to terminate the appointment .........'. It is undoubtedly a well settled rule of construction that the word 'may' in appropriate cases can and should mean 'must' of 'shall'. The appropriate cases could be where the context in which the words 'may' is used so required or when a duty is cast on a public officer is coupled with an obligation so that the word 'may' can and should be construed to mean 'a command'. The question as to whether 'may' should be read as 'shall' will have to be determined in the light of the Scheme of S.57(5) and the consequence that flow by reason of an order passed thereunder. Having regard to the Scheme of S.57(5) it would appear that the word 'may' used in the said provision cannot be read as 'shall' . The necessary consequence is that a discretion has been conferred on the Chancellor with regard to the exercise of power to terminate the appointment. If regard be had to all these aspects mentioned above. It must be held that the principle of audi alteram partem rule is necessarily implied in the provision.

42. It is urged by the learned advocate General that exclusion of opportunity of hearing to an individual under S.57(5) is implied as the said provision speaks of explanations of inquiries only from the University since the action of the University alone can be questioned under that Section and of no one else. It is alternatively submitted that where notice is unnecessary or the statute excludes it, ex post facto representation would be enough compliance with natural justice, it is also submitted that the petitioners had participated in the public inquiry held by Patel Committee and had full opportunity to represent their case and as such there is no question of their being given another opportunity at the stage of the passing of the order by the Chancellor. It is also urged that the termination in the instant case are not the result of rounds personal to employees but of breach of law committed by the University and where the policy of reservation followed by University is in question, no individual notices to persons who may have or may not have been benefited by that policy are necessary but only to the University. It is contended that if the initial appointment is invalid, the employee acquires no right thereunder even if he is confirmed as s.57(5) operates on permanent employees also, the learned Advocate General further contended that in contrast with disciplinary cases of Government servants, where the Inquiry Authority is statutorily different from authority which takes action on the basis of report, the Chancellor here could have himself sought explanation and taken action under S.57(5) without appointing Patel Committee. Further s. 57(5) as I stands does not predicate two notices an din has event, in view of the full participation of the affected person in the inquiry, the petitioners cannot complain of denial of opportunity. It is lastly submitted that the appointment were made in beach of the reservation policy ,the petitioners who come in the place of reservations could not be continued and the only option was to terminate their services and readvertise the posts and when question of policy is involved it is the University which framed the policy and not the individuals who can claim to be heard.

43. Before I proceed to examine the contentions urged by the learned Advocate General, a fererence may be made to the observation of the Supreme Court in S.L. Kapoor v. Jagmohan : [1981]1SCR746 . In that case the Supreme Court pointed out that - 'the old distinction between a judicial Act and an administrative Act ahs withered away and we have been liberated from the psittacine encantatior of 'administrative action..........'.

Now, from the time of the decision of this Court in State of Orissa v. Dr. (Miss) Binapani Dei. : (1967)IILLJ266SC even an administrative order which involves civil consequences....must be made consistently with the rules of natural justice. What are civil consequences? The question was posed and answered by this Court in Mohindar Singh Gill v. Chief Election Commissioner, New Delhi : [1978]2SCR272 , Krishna Iyer, J. speaking for the Constitution bench said (at Pp. 308-309) (of SCR) )at Pp; 867-877 of AIR);

But what is a civil consequence, let us ask ourselves, by passing verbal booby-traps/ 'Civil consequence' undoubtedly covers infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation, every thing that affects a citizen in this civil life inflicts a civil consequence'.

44. It is undoubtedly true as urged by the learned Advocate General that having urged to the provisions of S.76 of the Act as also having regard to the nature if the inquiry., the Chancellor is to obtain an explanation or make inquires from the University as the action of the University is in question. However , this to a hearing . As pointer out above , the action of the Chancellor results termination of the appointment of the teacher and such action on the part of the chancellor is discretionary, In the circumstances. It is futile to pointed that the teacher whose appointment is terminated is not entitled to a hearing . It is not that an elaborate inquiry like a departmental inquiry need necessary be held. If may be sufficient compliance with the principles of natural justice. If he is given an opportunity to submit an application or make a representations . He need not be personally heard, In fact MR. Manohar fairly stated in a case like the one as in the present case the compliance with audi alteram partem Rule would be met by giving an opportunity to the petitioners to make a representation

45. As regards the petitioners having participated in the public inquiry held by Patel Committee, suffice inquiry directed was under S. 76 of the Act and it is not the case that it was indicated at the stage of the inquiry that the action under S. 75(5) was contemplated. Under the circumstances having regard to the provisions of S.57(5) the petitioners were entitled to be afforded an opportunity of atleast making a representations against the proposed action. They were also entitled to be furnished with the revelant materials on the basis of which the action was contemplated.

46. The learned Advocate General relied on a decision of the Supreme Court in the case of the General Manager, South Central Railway Secunderabad A.V.R. Siddhant. : (1974)ILLJ312SC . In that case the validity of policy decisions of the Railway Board regulating seniority of Railway Staff, was challenged on the ground of their being volatile of Arts. 14 and 16 of the Constitution, In Writ Petition filed before the High Court . The Supreme Court observed that the relief is claimed only against the Railway and therefore, it is sufficient if the Railway was employees and non-jointer of the employees likely to be affected by the decision in the case is not fatal to the writ petitions. These employees were at the most decision parties but not necessary parties. This decision was followed in. A . Janardhana v. Union of India. : (1983)IILLJ175SC (See page 784): 1983 LIC 849 . However , in a later decision of the Supreme court in Prabodh Verma v. State od Uttar Preadesh : [1985]1SCR216 a contrary view appears to have been expressed. In para-28 of the judgment it is laid down that a High Court ought not to decide a Writ Petition under Art . 226 of the Constitution without the persons who would be virally affected by its judgment going before it as respondents or atleast by some of them being before it as respondents in a represendent capacity. If their number is too large and, therefore the High Court ought not to have proceeded to hear and dispose of the writ petition without insisting upon the reserve pool teachers being made respondents to that writ petitions, or at lease some of them being made respondents in a representative capacity and had the petitioners refused to so , ought to have dismissed that petition for non-jointer of necessary parties.

47. It would appear that in view of the decision in Pramod Verma's case 1985 LIC 1196 is does not necessarily follow that in the case of a policy decision the affected parties need not be heard. This decision related to the case where affected persons were not made parties. Moreover in my opinion. These decisions are nor directly applicable. In the present case what is to be considered is the requirement of S. 57(4) which as we have held does not exclude opportunity to the affected teachers . As regards the question as to whether the petitioners are entitled to be furnished with the report of the Patel Committee to enable the m to make an effective representations, attention may be invited to the decision of the Supreme Court in Keshava Mills Co. Ltd, v. Union of India : [1973]3SCR22 . Where it has been observed that it is not possible to lay down any general principle on the question as to whether the report of an investigating body or of an on specter appointed by an administrative authority should be made available to the persons concerned in any given case before the authority takes a decision upon that report. The answer to this question must depend on the facts and circumstances of the case. I have already indicated above that the petitioners were entitled to the relevant material on which the order is based.

48. Though I have above that the application of Audi Alteram Partem Rule is implied in S.57(5) and the order of termination is liable to be set aside simplicities on the ground of non-observance of the Rule., still the question remains whether in the facts of this case the petitioners are entitled to the issuance of a writ as parted for by them. The main basis of the impugned order of termination is two-fold , Firstly, the reservation policy adopted the University while issuing the advertisement and the employment noted is not in accordance with law and contrary to the provision od S. 57 of the Act . Secondly , there is failure to comply with the mandatory provisions of S.32 of the Act for having not consulted the B.U.T.R. As a facet of the second ground is (sic) the reference to the various writ petitions filed in this Court where the impugned employment notice has been quashed with respect of the posts in those writ petitions on the ground that the B.U.T.R. was not consulted before the issue of the said employment notice and in some of the writ petitions this Court has restrained the University from making any appointment without obtaining the recommendations of the B.U.T.R. and further that it is generally found the B.U.T.R. of various faculties has not been consulted before the issue of the employment notice. In view of the fact that this Court had before the impugned orders had quashed and set aside the employment notice with respect to the posts in the writ petitions., the Chancellor could not have taken any other view or refrain from taking any action in respect of the petitioners posts which were part and parcel of the some employment notice. It is on possible to say that the rule should be applied to some of the posts and another to the remaining posts , all of which are part and parcel of the same advertisement and stand on the same footing . Since prior consultation of B.U.T.R. is mandatory, as held by the Division Bench of the court, though the normal result of the non-observance of the principles of natural justice in the present case is to vitiate the order and the Court would issue the writ asked for in the facts of this case it would be futile to issue such a writ because the Chancellor obviously could not discriminate between persons who have been appointed to different posts under the same advertisement and their appointment suffers from identical infirmity which infirmity has led to the quashing of the advertisement by this court in respect of some of the posts. Similarly, the employment notice has been found to be illegal and not in accordance with the statuary provisions of S. 57 of the Act . which illegality goes to the root of the matter. The entire selections process under S,57 has been vitiated by reasons of the non-reservations of posts subjectswise in the advertisement which has resulted in setting at naught the reservation policy and depriving the members of the backward community of their legitimate rights. Because of the patent illegality , the Chancellor's action becomes inevitable and the only action that the Chancellor could take under the provisions of S. 57(5) is to terminate the appointments of the teachers . In view of the inevitable nature of the order, it would be futile to issue writ to the Chancellor merely to compel the observance of the principles of natural justice In this connection it would be useful to refer to the decision of the Supreme Court is S.L. Kapoor v. Jagmohan : [1981]1SCR746 , where the Court declined to issue a writ with the following observations:

' Linked with this questions is the question whether the failure to observe natural justice does all matter if the observance of natural justice or indisputable facts speaking for themselves .Where on the admitted or indisputable facets only one conclusion is possible and under the law only one penalty is permissible , the Court may not issue its writ to compel the observance of natural justice ,not because it approves the non Courts do not issue futile writs But it will be a pernicious principle to apply in other situations where conclusions are controversial however slightly , and penalties are discretionary'.

In the result , the petitions fails. Rule discharged with no order as to costs.

Jahagirdar, J.

50 I have perused the judgment proposed to be delivered by my brother Shah. J. though I agree with most of what has been record my disagreement.

51. For the purpose of pointing out where I disagree with Shah J, it is necessary to summaries the findings and conclusions recorded by Shah. J They are in my opinion as follows:-

(1) Reservation contemplated S.57 (4) (a) of the Nagpur University Act . 1974 means necessarily reservation of specific posts namely, posts with reference to particular subjects.

(2) Any advertisement which is issued under S.57 (4)(a) must specify the posts for which reservation is made an advertisement that does not specify the post with reference to the subject would not be in accordance with law.

(3) The Chancellor's action in the instant case in directing the termination of the services of the petitioners of the ground that the appointments were was not in accordance with S.57(4) (a) of the Act is legal and valid.

(4) Even if the question of the legality of the advertisement issued in the instant case is not considered, the action of the Chancellor's terminating the services of the petitioners on the ground that the advertisement was issued without consultation with the Board of the University Teaching and Research of the Nagpur Bench in a group of writ petitions decided on 27th of July, 1984.

(5) The two groups , namely the invalidity of the appointments as being inconsistent with the reservation policy contemplated under S. 57(4)(A) and the invalidity of the appointments on the ground of non-consultation with the B.T.U.R. are serviceable and, therefore, if the former is ignored , the order of the Chancellor can be sustained on the latter ground.

(6) S. 57(5) of the Act necessarily contemplates giving an opportunity to the persons concerned of being heard on the action that is to be taken.

(7) In the instant case, there is infraction of the rule of the natural justice, inasmuch as the report of the Patel Committee on which the Chancellor decided to take action terminating the service of the petitioners was not disclosed to the petitioners.

(8) This itself is of no consequence because the non-consultation of B.U.T.R.was not the subject matter of the inquiry by the Patel Committee and the Chancellor has relied upon the judgment of the Nagpur Bench of the High Court and has followed the same.

(9) Since the appointments of the petitioners were made consequent to their applications for the posts pursuit to the advertisement which is found to be illegal, the Chancellor had no alternative but to direct the termination of the services of the petitioners and therefore nor giving not invalidate the action of the Chancellor in the instant case.

(10) Therefore, this court would be fully justified in refusing to issue a writ which would be futile.

52. I am in full agreement with all the aforesaid propositions. Except proposition No. (3) . Though I agree on an analysis of the provisions of the Nagpur University Act . and in particular of the provision contained in S. 57($0 (a) , the correct meaning of the 'reservation' must mean reservation of posts with special reference to the subjects . I am of the opinion that the Chancellor when he took action under S,57(5) of the Act . could not have been satirized that the appointments of the petitioners were not in accordance with the law at that time in force. This is for the simple reason that the law in the light of which the satisfaction of the Chancellor had to be arrived at was the law as contained in S/57(5) an interpreted by the Division Bench of the Nagpur High Court in Dr, Bhakhre's case (1985) LIC 1481 , It cannot be denied that the law declared by a Bench of the High Court id binding upon all the authorities under the Nagpur University Act . , including the Chancellor, If this is not then it cannot be seen how the Chancellor could in the light of the law which was binding upon him come to the conclusion ,when they were made, were not in accordance with the law in the sense that the advertisement was not in accordance with S,57 (4) (a) of the Act . Till the judgment of the Full Bench on the case are pronounced the law that must guide the authorities under the Nagpur University Act is the law as last down by Nagpur Bench in Dr,Bhakhre[s case.

53. Shah, J ahs suggested that when the Full Bench takes view which is contrary to the view taken by the Division Bench in Dr. Bhakhre's case. , the view of the Full Bench must be regarded as the law and it must also be regarded that it has always been the law. The necessary consequence of this is the obliteration of the view taken by the Nagpur Bench in Dr. Bhakre's case. The function of the court is to discover the law and if today we are saying that the reservation contemplated in S. 57(4) (a) of the Act must be reservation of posts with reference to particular subjects, then that view must be deemed to have been in the filed all along.

54. As a proposition of law , what has been stated by Shah, j may be right ,but here is a situation where we are subjecting an administrative action to a judicial review. The question is not what this Court has to say regarding the correct interpretation of the reservation contemplated in S. 57(4) (a) of the Act . The question is whether the Chancellor. When he took the action , could have tokens view that 57(4)(A) contemplated reservation of posts with reference to specific subjects In my opinion , he could not have taken that view, because the law by which all the authorities under the Nagpur University Act . were bound was as declared by the Nagpur Bench in Dr. Bhakhre's case 1985 LIC 1481 . Today , we are called upon to judge the validity of the said action has to be judged in the light of the law. Prevailing at the time the action was taken. And in the light of the law laid down by the Nagpur Bench in Dr; Bhakhre's case, the Chancellor could not have taken a view which was contrary to the view taken by the Nagpur Bench in Dr, Bhakhre's case.

55. This position can be appreciated if one visualizes two different situations .the first situation is where there is a judgment of a court in the filled which is binding upon the Chancellor who was, therefore not free to take any view contrary to that judgment . A situation can also be visualized that where there si no such judgment as the one in Dr. Bhakhre's case the Chancellor, naturally , is hence free to take his decision and it interpreting S.57(4)(a) he came to the conclusion that the advertisement in the instant case was illegal , this Court could examine whether the view taken by the Chancellor is correct. The view of the Court then naturally would prevail . But when a judgment of the High court is in the filed and that judgment is binding as I have said that it is binding upon all the authorities under the Nagpur University Act . I do not think that it would have been permissible for the Chancellor to take a contrary view.

56. I agree with Shah, I on the necessarily of giving an opportunity of being heard to the persons concerned before any action is taken under S.75(5) of the Act . this opportunity means the hearing by the Chancellor himself if he holds the inquiry . If ,however, he causes the inquiry to be held by another person. Then the opportunity must necessarily mean making available to the person concerned the material on the basis of which the Chancellor proposes to take action.

57. In conclusion I agree with the order proposed to be passed be Shah. J namely, that the petition ought to be dismissed because no writ can be issued to the Chancellor in view of the inevitable nature of the order passed by him in the light of the judgment of the Nagpur Bench of the High Court in the petitions where the advertisement had been struck down on the ground of non consolations with B.U.T.R.

Sugla, J.

58 I have carefully gone through the separate judgments proposed to be passed by my learned brothers Shah had Jahagirdar,jj. I agree with the two important findings. As regards conclusion I am not able to persuade myself and propose to pass a separate judgment

59 I am in respectful with Shah and Jahagirdar , JJ that reservation contemplated in S.57(4)(a) , (d) and (c) of the Act means reservation of identifiable posts i.e. reservation of identifiable posts I,e. reservation of posts subjectwise and therefore this Court's decision in Dr. Bhalares's overruling. I also agree that in view of his Court's judgments in Writ Petition No. 385 of 1985 with Writ Petition Nos. 497 and 503 of 1985 delivered in September and October . 1985 regarding the issue involved in them. (though serious arguments were advanced before this Bench by Manohar, the learned Counsel for the petitions , we were not only not called upon to reconsider those judgments. Even the copies of the judgments were not given to us), it has got to be taken that prior consultation with B.U.T.R.was necessary before issuing the impugned employment notice. However, as regards the meaning of expression . 'The Chancellor....... Is satisfied that the appointment of a teacher..... was not in accordance with the law at that time in force. .... , I am in agreement with Jahagirdar, j. in preference to Shah J, for reasons given by him in his separate judgment that the above expression means the law which was binding on the vice-chancellors at the time the appointments were made or at the most at the time he was considering the legality or illegality of appointments for assuming jurisdiction under S. 57(5) of the Act . In this context I would like to add that the provisions of S. 57(5) are penal in nature inasmuch as the provisions empower the chancellor to give directions to the vice-chancellors to terminate services of a teacher forthwith without following the usual procedure and not withstandard anything contained in the contract relating to his conditions of service. In the circumstances it is only proper to read the above expression according to its -lain meaning, namely ,it refers to a factual as distinct from notional state of law at the time of appointment, In other words , the Court has to consider whether the Chancellor was justifiably satisfied in his concussion about the illegality of the appointment as on the day the appointment was made . this material time at the most can be postponed to the period during which the Chancellor was considering the law for the purpose of arriving at his satisfaction about the legality or illegality of the appointment . Since both on 30th Mar,. 1985 when the appointments were made on 16th April , 1987 when the Chancellor issued impugned directions to the vice-chancellors under S.57(5) the law in this regard was what was declared by this Court in Dr Bhakhare's case , the fact that decision in Dr. Bhakhare's cases being reversed now by this Court is or will be of no consequence so far as the issue involved in this case is concerned . There is, according to me one more reason in support of this view, The provisions of S.57(5) admittedly provide for an extraordinary method of termination of service of a teacher. Naturally it requires strict construction. The legality or illegality of appointment of a teacher would therefore require to be determined on the basis of law which is certain/ If the view taken by Shah J. is accepted, it would mean that assuming Chancellor was at the material time aware of Dr. Bhakhare's decision and not taken any action under S. 57(5) , that would have been the end of the matter. On the other hand, if the chooses to proceed under this hand, if he chooses to proceed under this Section after this judgment. , he would legally hold that the impugned employment notice was in violation of provisions of S. 57(A) . Assuming the petitioner s take up the matter to the Supreme Court and the Supreme Court approves the decision in Dr. Bhakhare's case and overrules our decision on the issue, the Chancellor will again be in a quandrum. Such a fluctuating situation should not and .could and be allowed particularly when the fate of a teacher who is otherwise competent and who had no hand in the illegality if any involved in his selection and appointment , is involved.

60. Next finding recording by Shah .I (Jahagirdar J. agreeing with him) is that assuming the appointment in the instant case could not be treated invalid on the ground of inconsistency with the reservation policy contemplated under S.57(4)(a), (d) and (e) in view of the Court's decision in Dr. Bhakhare's case , the appointment would still be invalid on the ground of non-consultation with B.U.T.R. before issuing the impugned employment notice. In my view , however , this is not a very correct approach. The question to be asked is what the Chancellor would have done., had he known about the Court's then bundling decision in Bhakhare's case and the fact that eventually B.U.T.R. had given a ex post fact sanction to all these appointment vide different resolutions passed in December. , 1986 (pages 137 and 138 of the paper book). Since the answer to this question cannot be predicated with an amount of certainty, it has got to be held that his satisfaction about the illegality of the appointments was vitiated, It is , thus a clear case of non-consideration or non-application of mind to certain very relevant aspects of the matter and not just of a wrong conclusion arrived at after considering all relevant and materials facts in which case the conclusion even though wrong at the time when arrived at could be upheld if subsequently the law turned out to be supporting the view taken by the Chancellor or one of the many grounds taken by him was savable and could by itself support the conclusion, In my judgment therefore, the finding of satisfaction which is the condition precedent for the assumption of jurisdiction by the Chancellor under S. (57) (5) of the Act is itself vitiated for non consideration of the relevant aspects of the matter and non-application of mind. Consequently, his direction to the vice-chancellor to terminate the services of the petitioners require to be set aside.

61. I also find it difficult to agree with shah j , (JahagirdarJ.agreeing with him) that even thought the word 'may' used in S. 57(5) in the matter of giving directions to the Chancellor to terminate the services of teachers means 'may' and not 'must' and the principles of natural justice on principle cannot be denied to the petitioners who are adversely affected by the directions given on 16th April. 1987 by the Chancellor to the vice-chancellor to terminate their services forthwith, issue of writ in this case would be futile as the inevitable consequence of the Chancellor's satisfaction about the illegality of the appointments would be that the Chancellor's will have no option but to give direction to the vice-chancellor to terminate the services of the petitioner. In my view, it is not quite correct to assume that inevitable consequence of the Chancellor satisfaction that the appointment were not in accordance with the law in force at the time of the appointment is to direct termination of their services irrespective of their service conditions. I am supported in my this view by the two recent decision of the Supreme Court in Rajendra Prasad Mathur, v, Karanataka University : [1986]2SCR912 (relevant part 8 on page 1455) which was followed in A. Sudha v, University , of Mysore . : [1988]1SCR368 . After holding that certain admissions to medical/engineering colleges were illegal and the seats were to be given to the other students their Lordships direct that illegally admitted students should be allowed to continue their studies by creating additional seats. In the present case, even such a situation would not arise. Out of 77 posts advertised (13for the post of Professors. 29 for the post of readers and 35 for the post of lectures) only 43 posts had been filled up in response to the impugned employment notice . the reservation policy could be easily carried out by reserving the posts subjectwise out of the posts not filled up without disturbing the petitioners. After all it was and is an admitted position that all the persons appointed are competent person and were in no way responsible for the illegality if any crept in the matter of their appointments . If at all , it was the University which bungled and the petitioners were being made to suffer for no fault of others

62. Moreover, the fact that the impugned orders terminating their services were going to create under and avoidable hardships even to six teachers from reserve category cannot and should not be grouched aside so lightly'

(i) S. 57(5) has an inbuilt assurance .viz., 'A person whose appointment has been so terminated shall eligiable to apply again for the same posr. In the case before us this assurance is not capable of implementations least in few cases. For instance some teachers may not be qualified to apply at the time when fresh employment notice is issued for reasons such as age bar. Some others may not be able to allay for the post because the subjects in which they quality and areeligibe are reserved for the class other then the class to which they belong.

(ii) Some of teachers might in the mean time lost on the posts were earlier , holding Whether permanent or their present posts, oifis likely that they may not be taken back to their original posts with to had they continued there.

63. There being not even a suggestion were these teachers were incompetent and /or were in way responsible in getting the appointments found not to be in accordance with the law, the principles of natural justice and fair play, to say the least would demand of the authorities to ensure them in such a situation that they would not be placed in a situation worse then what they would have been had they not been appointed to and joined their present posts. Since it may be difficult to ensure such a fair play to the petitioners-teachers and their cases being much more hard than those involved in the Supreme Court consideration by the Chancellor which can only be ensured by directing the Chancellor to give the petitioners opportunity before passing offers under S.57(5) complying with the principles of natural justice.

64. Here again the question to be considered is not what is the inevitable consequence about the illegality of the appointments. The pertinent question is how the chancellor would have opportunity the petitioners had placed before him all these aspects. It could as well have been that the chancellor would not have adopted this coursed of issuing impugned directions to the vice-chancellors and ensured reservation policy by other methods indicated above, If that was so, that would have been the end of the matter and case would not have come up to this Court for consideration of the validity or otherwise of the impugned employment notice.

65. Thus, speaking for myself I would like to quash the impugned orders of termination on the ground that the Chancellor's satisfactions was vitiated for non-consideration of material aspects and non-applications of mind and for not allowing the petitioners opportunity before passing impugned orders without following the principles of natural justices.

66. By majority Rule discharged with no order as to costs.

67. Mr. Dharmadhikari orally applies for leave to appeal to Supreme Court.

68. Order accordingly.