Chairman, School of Buddhist Philosophy, Leh, Ladakh (J and K) Vs. Makhan Lal Mattoo and anr. - Court Judgment

Excerpt:
service - appointment - service law, articles 12, 14, 16 and 226 of constitution of india and rules 1 and 3 of cpc, 1908 - appeal against judgment of high court quashing advertisement and retraining management from filling post of principal on basis of impugned advertisement - board of management at any time with sanction of government of india can alter recruitment rules - management in meeting prescribed revised qualification for post of principal by amending rules and taking approval of government of india - respondent does not possess revised qualification and not eligible for said post - qualification validly revised by amending rules and high court not justified in quashing advertisement - appeal allowed. - - civil appellate jurisdiction: civil appeal no. 3492 of 1990.from the judgment and order dated 3.8.1988 of the jammu & kashmir high court in l.p.a. no. 110 of 1988. n.s. mathut, ramesh c. pathak, g. venkatesh rao and baby lal for the appellant.e.c. agarwala, ms. purnima bhatt, v.k. pandita and atul sharma, for the respondents.the judgment of the court was delivered by kuldip singh, j. special leave granted.the school of buddhist philosophy, leh (hereinafter called the 'school') is an affiliate institution of the sampurnanand sanskrit university, banaras. the management of the school is in the hands of a society called central institute of buddhist studies, leh which is registered under the jammu and kashmir registration of societies act. ap- pointments to various posts in the school are regulated by the rules framed by the board of management in the year 1973. the academic and other qualifications for the post of principal under the rules, are as under: 517"academic qualificationat least master's degree in humanities or social sciences, with knowledge of rules and regulations, procedures and accounts.experienceminimum experience of 7 years, out of which at least 2 years should be in administration such as administrative asstt. and not less than 3 years in teaching in higher secondary and/or degree classes."the qualifications for the post of administrative officer under the 1973 rules are identical.m.l. mattoo (respondent no. 1), who was functioning as the administrative officer, was given the additional charge of the post of principal by an order dated march 26, 1973 issued by the ministry of education and social welfare, government of india, new delhi.the board of management in its meeting held on august 22, 1978 decided that apart from the qualifications pre- scribed under the rules, the person selected for the post of principal should have a thorough academic background in buddhist philosophy. pursuance to the said decision the qualifications/experience for the post of principal pre- scribed under the rules were revised as under: "essential:(a) a consistently good academic record possessing eminent scholarship in buddhist philosophy as a subject of specialisation at m.a. or doctoral level. oracharya degree with research experience to buddhist philoso- phy or equivalent.oran equivalent degree of traditional monastic education in buddhism.518(b) evidence of research work and/or public work in the field.desirable:(a) 5 years teaching experience in buddhist philosophy and allied subject at the degree level.(b) 5 years of administrative experience." the board of management constituted a selection commit- tee to appoint a suitable person as principal of the school. by an order dated january 9, 1979 one shri tashi pal jot, who fulfilled the revised qualifications, was appointed as principal of the school. aggrieved by the said appointment m.l. mattoo filed civil writ petition no. 256 of 1979 in the high court of jammu and kashmir on the ground that he was removed from the additional charge without affording an opportunity of heating to him and further that he was not considered by the selection committee. he contended that selection was liable to be quashed being violative of arti- cle 16 of the constitution of india. the writ petition was resisted by the management on the ground that it was not a 'state' under article 12 of the constitution of india and as such the writ petition was not competent. at the hearing of the writ petition the counsel for the management conceded that the society was a 'state' within article 12 of the constitution of india and as such the writ petition could not be dismissed on that ground. the high court rejected the contention of m.l. mattoo that he was entitled to an oppor- tunity of hearing or article 311 was attracted. the high court, however, allowed the writ petition on the ground that the petitioner was not considered for the post of principal and as such his right under article 16 of the constitution of india stood infringed the operative part of the high court judgment is as under:"mr. v.k. gupta has on the authority of ajay hasia's case (supra) frankly conceded that the society being an instru- mentality or agency of government of india, was 'state' for the purpose of part iii of the constitution as such, the petitioner had a fundamental right to be considered for the post alongwith the third respondent. he not having been so considered, and it also being admitted that he possessed the requisite qualifications, the rule of equality enshrined in articles 14 and 16 of the constitution stood clearly violat- ed. that being so, as in fact it is, the impugned order 519passed by the second respondent appointing the third re- spondent as the principal of the school has to be quashed." thereafter the management advertised the post of princi- pal to be filled by direct recruitment on the basis of revised qualifications. the advertisement was published in the 'kashmir times' of january 5, 1982.m.l. mattoo filed another writ petition being civil writ petition no. 29 of 1982 challenging the advertisement on the ground that the revised qualifications had not been validly prescribed and as such the post of principal could only be filled on the basis of the pre-revised qualifications. according to him the revised qualifications were advertised only to make him ineligible for the post. the main thrust of mattoo's argument was that his earlier writ petition was decided by the high court on october 29, 1981 wherein the counsel for the management conceded that he possessed the requisite qualifications for the post of principal. admit- tedly matto does not possess the revised qualifications. according to him the earlier writ petition was filed in the year 1979 and had the qualifications been revised by amend- ing the rules in 1978, the counsel for the management would have certainly brought the same to the notice of the court and since it was not done there was factually no amendment to the rules. the high court accepted the contention of mattoo and allowed the writ petition by its judgment dated june 9, 1988 on the following reasoning: "it is stated in para no. 13 of their counter that qualifi- cations were changed in august, 1978 with the approval of the govt. of india. this statement is not accepted for two reasons one, that this was not the defence of the respond- ents in writ petition no. 256/1979 in which petitioner's eligibility was granted by the high court for the post of principal; and second, that after the decision of the high court granting eligibility to the petitioner for the post of principal in writ petition no. 256/1979, the respondents plea on the basis of some policy or note whereby qualifica- tions were changed in 1978 prior to the filing of the writ petition no. 256/1979 cannot be now pressed into service nor would be permitted to be made because same will be barred by doctrine of constructive res judicata."the high court quashed the advertisement dated january 5, 5201982 and restrained the management from filling the post of principal on the basis of the impugned advertisement. the management has come up to this court in appeal against the above said judgment of the high court of jammu and kashmir. the learned counsel for the appellant has invited our attention to the proceedings of the meeting of the manage- ment of the school held on august 22, 1978. it was decided in the said meeting that the person selected for the. post of principal of the school must have academic background in buddhist philosophy in addition to the qualifications pre- scribed under the rules. thereafter the amended qualifica- tions which have been reproduced above were prescribed by the board of management.3 it is not disputed that the recruitment rules could be altered by the board of management at any time with the sanction of the government of india. mr. e.c. agarwala appearing for the respondent m.l. mattoo has, however, contended that the recruitment rules were never amended and in any case there was no sanction of the government of india regarding the amended rules.learned counsel for the appellant has invited our atten- tion to the affidavit of dr. (mrs.) kapila vatsyayan, chair- man, board of management of the school filed before the high court. dr. kapila vatsyayan is the additional secretary to government of india in the ministry of education and cul- ture. para 13 of the affidavit is as under: "when in the year 1978, the question of appointment of a principal of the school on regular basis was under the consideration of the board of management, it was held that keeping in view the objects of the school being a research institution to propogate buddhist philosophy a thorough academic background in buddhist philosophy was considered as one of the essential qualifications for the post of princi- pal of the school as will be evident from the extract from brief note on agenda item i considered in the meeting of the board of management held on 22nd august, 1978 annexure iv. shri tashi paljore was appointed as principal as stated in para no. 5 of the petition as he possessed this qualifica- tion and was selected by a duly appointed selection commit- tee. the contention of the petitioner that this qualifica- tion has been added now after the decision of writ petition no. 256 of 1979 is incorrect. as521stated above, the qualifications were changed in august 1978 with the approval of govt. of india.these qualifications are obviously very necessary for the fulfilling of the objectives of the schools of buddhist philosophy, leh (ladakh). in the absence of these qualifications, the very object for which the institution exists is bound to be defeated. the qualification has been provided the interest of the institution and for the attain- ment of the object for which it exists, namely imparting and propagating buddhist philosophy. the recruitment rules of 1975, annexure 'd' to the petition were framed by the board at that time. under the rules and regulations of the board, the board of management is competent to amend the same. ' ' it is obvious from the affidavit of dr. kapila vatsyayan reproduced above that the qualifications for the post of principal were revised by amending the rules and the revised qualifications were approved by the government of india. no. 1 rejoinder was filed by m.l. mattoo to the above affidavit, the high court was not justified in disbelieving the contents of the affidavit. the rules are not statutory. the board of management is fully competent to alter or amend the rules in any manner and at any time. the affidavit by the chairman of the board of management who is additional secre- tary to government of india to the effect that the rules were amended in 1978 with the approval of the government of india, should have put an end to the controversy. we have no hesitation in holding that the qualifications for the post of principal of the school stood validly revised by the amendment of the rules in august, 1978. since respondent no. 1 shri m.l. mattoo does not possess the revised qualifica- tions, he is not eligible to be considered for the said post.in the earlier writ petition no. 256/1979 the question as to whether the qualifications for the post of principal had been revised was not before the high court. the main contention of the management, before the high court, was that the management society was not a 'state' under article 12 and as such no writ petition was competent. at the hear- ing the counsel for the management, however, conceded that the society was a 'state' under article 12 of the constitu- tion of india. it is no doubt that the high court has men- tioned that it522was admitted by the counsel for the management that mattoo possessed the requisite qualifications for the post but we do not understand how in the face of categoric affidavit of dr. kapila vatsyayan such a statement could be made before the high court.we, therefore, hold that the qualifications/experience for the post of principal were validly revised by amending the rules in august, 1978. the advertisement issued on january 5, 1982 was in accordance with the rules and the high court was not justified in quashing the same. we, therefore, allow the appeal, set aside the judgment of the high court and dismiss the writ petition filed by m.l. mattoo before the high court. there shall be no order as to costs.y. lal petition dismissed.523

Judgment:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3492 of 1990.

From the Judgment and Order dated 3.8.1988 of the Jammu & Kashmir High Court in L.P.A. No. 110 of 1988. N.S. Mathut, Ramesh C. Pathak, G. Venkatesh Rao and Baby Lal for the Appellant.

E.C. Agarwala, Ms. Purnima Bhatt, V.K. Pandita and Atul Sharma, for the Respondents.

The Judgment of the Court was delivered by KULDIP SINGH, J. Special leave granted.

The School of Buddhist Philosophy, Leh (hereinafter called the 'School') is an affiliate institution of the Sampurnanand Sanskrit University, Banaras. The management of the School is in the hands of a society called Central Institute of Buddhist Studies, Leh which is registered under the Jammu and Kashmir Registration of Societies Act. Ap- pointments to various posts in the School are regulated by the rules framed by the Board of management in the year 1973. The academic and other qualifications for the post of Principal under the rules, are as under: 517

"Academic Qualification

At least Master's Degree in Humanities or Social Sciences, with knowledge of Rules and Regulations, procedures and Accounts.

Experience

Minimum experience of 7 years, out of which at least 2 years should be in administration such as administrative Asstt. and not less than 3 years in teaching in Higher Secondary and/or Degree classes."

The qualifications for the post of Administrative Officer under the 1973 rules are identical.

M.L. Mattoo (Respondent No. 1), who was functioning as the Administrative Officer, was given the additional charge of the post of Principal by an order dated March 26, 1973 issued by the Ministry of Education and Social Welfare, Government of India, New Delhi.

The Board of Management in its meeting held on August 22, 1978 decided that apart from the qualifications pre- scribed under the Rules, the person selected for the post of Principal should have a thorough academic background in Buddhist Philosophy. Pursuance to the said decision the qualifications/experience for the post of Principal pre- scribed under the Rules were revised as under: "Essential:

(a) A consistently good academic record possessing eminent scholarship in Buddhist Philosophy as a subject of specialisation at M.A. or Doctoral level. or

Acharya Degree with research experience to Buddhist Philoso- phy or equivalent.

or

An equivalent degree of traditional monastic education in Buddhism.

518

(b) Evidence of research work and/or public work in the field.

Desirable:

(a) 5 years teaching experience in Buddhist Philosophy and allied subject at the degree level.

(b) 5 years of administrative experience." The Board of Management constituted a selection commit- tee to appoint a suitable person as Principal of the School. By an order dated January 9, 1979 one Shri Tashi Pal jot, who fulfilled the revised qualifications, was appointed as Principal of the School. Aggrieved by the said appointment M.L. Mattoo filed Civil Writ Petition No. 256 of 1979 in the High Court of Jammu and Kashmir on the ground that he was removed from the additional charge without affording an opportunity of heating to him and further that he was not considered by the selection committee. He contended that selection was liable to be quashed being violative of Arti- cle 16 of the Constitution of India. The writ petition was resisted by the Management on the ground that it was not a 'State' under Article 12 of the Constitution of India and as such the writ petition was not competent. At the hearing of the writ petition the counsel for the Management conceded that the society was a 'State' within Article 12 of the Constitution of India and as such the writ petition could not be dismissed on that ground. The High Court rejected the contention of M.L. Mattoo that he was entitled to an oppor- tunity of hearing or Article 311 was attracted. The High Court, however, allowed the writ petition on the ground that the petitioner was not considered for the post of Principal and as such his right under Article 16 of the Constitution of India stood infringed The operative part of the High Court judgment is as under:

"Mr. V.K. Gupta has on the authority of Ajay Hasia's case (supra) frankly conceded that the society being an instru- mentality or agency of Government of India, was 'state' for the purpose of Part III of the Constitution as such, the petitioner had a fundamental right to be considered for the post alongwith the third respondent. He not having been so considered, and it also being admitted that he possessed the requisite qualifications, the rule of equality enshrined in Articles 14 and 16 of the Constitution stood clearly violat- ed. That being so, as in fact it is, the impugned order 519

passed by the second respondent appointing the third re- spondent as the Principal of the School has to be quashed." Thereafter the Management advertised the post of Princi- pal to be filled by direct recruitment on the basis of revised qualifications. The advertisement was published in the 'Kashmir Times' of January 5, 1982.

M.L. Mattoo filed another writ petition being Civil Writ Petition No. 29 of 1982 challenging the advertisement on the ground that the revised qualifications had not been validly prescribed and as such the post of Principal could only be filled on the basis of the pre-revised qualifications. According to him the revised qualifications were advertised only to make him ineligible for the post. The main thrust of Mattoo's argument was that his earlier writ petition was decided by the High Court on October 29, 1981 wherein the counsel for the Management conceded that he possessed the requisite qualifications for the post of Principal. Admit- tedly Matto does not possess the revised qualifications. According to him the earlier writ petition was filed in the year 1979 and had the qualifications been revised by amend- ing the rules in 1978, the counsel for the management would have certainly brought the same to the notice of the Court and since it was not done there was factually no amendment to the rules. The High Court accepted the contention of Mattoo and allowed the writ petition by its judgment dated June 9, 1988 on the following reasoning: "It is stated in para No. 13 of their counter that qualifi- cations were changed in August, 1978 with the approval of the Govt. of India. This statement is not accepted for two reasons one, that this was not the defence of the respond- ents in writ petition No. 256/1979 in which petitioner's eligibility was granted by the High Court for the post of Principal; and second, that after the decision of the High Court granting eligibility to the petitioner for the post of Principal in writ petition No. 256/1979, the respondents plea on the basis of some policy or note whereby qualifica- tions were changed in 1978 prior to the filing of the writ petition No. 256/1979 cannot be now pressed into service nor would be permitted to be made because same will be barred by doctrine of constructive res judicata."

The High Court quashed the advertisement dated January 5, 520

1982 and restrained the management from filling the post of Principal on the basis of the impugned advertisement. The management has come up to this Court in appeal against the above said judgment of the High Court of Jammu and Kashmir. The learned counsel for the appellant has invited our attention to the proceedings of the meeting of the manage- ment of the School held on August 22, 1978. It was decided in the said meeting that the person selected for the. post of Principal of the School must have academic background in Buddhist Philosophy in addition to the qualifications pre- scribed under the Rules. Thereafter the amended qualifica- tions which have been reproduced above were prescribed by the Board of Management.

3 It is not disputed that the recruitment Rules could be altered by the Board of Management at any time with the sanction of the Government of India. Mr. E.C. Agarwala appearing for the respondent M.L. Mattoo has, however, contended that the recruitment rules were never amended and in any case there was no sanction of the Government of India regarding the amended Rules.

Learned counsel for the appellant has invited our atten- tion to the affidavit of Dr. (Mrs.) Kapila Vatsyayan, Chair- man, Board of Management of the School filed before the High Court. Dr. Kapila Vatsyayan is the Additional Secretary to Government of India in the Ministry of Education and Cul- ture. Para 13 of the affidavit is as under: "When in the year 1978, the question of appointment of a Principal of the school on regular basis was under the consideration of the Board of Management, it was held that keeping in view the objects of the school being a research Institution to propogate Buddhist Philosophy a thorough academic background in Buddhist Philosophy was considered as one of the essential qualifications for the post of Princi- pal of the School as will be evident from the extract from brief note on Agenda item I considered in the meeting of the Board of Management held on 22nd August, 1978 Annexure IV. Shri Tashi Paljore was appointed as Principal as stated in para No. 5 of the petition as he possessed this qualifica- tion and was selected by a duly appointed Selection Commit- tee. The contention of the petitioner that this qualifica- tion has been added now after the decision of writ petition No. 256 of 1979 is incorrect. As

521

stated above, the qualifications were changed in August 1978 with the approval of Govt. of India.

These qualifications are obviously very necessary for the fulfilling of the objectives of the Schools of Buddhist Philosophy, Leh (Ladakh). In the absence of these qualifications, the very object for which the Institution exists is bound to be defeated. The qualification has been provided the interest of the Institution and for the attain- ment of the object for which it exists, namely imparting and propagating Buddhist Philosophy. The Recruitment Rules of 1975, Annexure 'D' to the petition were framed by the Board at that time. Under the Rules and Regulations of the Board, the Board of Management is competent to amend the same. ' ' it is obvious from the affidavit of Dr. Kapila Vatsyayan reproduced above that the qualifications for the post of Principal were revised by amending the Rules and the revised qualifications were approved by the Government of India. No. 1 rejoinder was filed by M.L. Mattoo to the above affidavit, The High Court was not justified in disbelieving the contents of the affidavit. The rules are not statutory. The Board of Management is fully competent to alter or amend the rules in any manner and at any time. The affidavit by the Chairman of the Board of Management who is additional Secre- tary to Government of India to the effect that the rules were amended in 1978 with the approval of the Government of India, should have put an end to the controversy. We have no hesitation in holding that the qualifications for the post of Principal of the School stood validly revised by the amendment of the Rules in August, 1978. Since respondent No. 1 Shri M.L. Mattoo does not possess the revised qualifica- tions, he is not eligible to be considered for the said post.

In the earlier writ petition No. 256/1979 the question as to whether the qualifications for the post of Principal had been revised was not before the High Court. The main contention of the Management, before the High Court, was that the Management society was not a 'State' under Article 12 and as such no writ petition was competent. At the hear- ing the counsel for the management, however, conceded that the society was a 'State' under Article 12 of the Constitu- tion of India. It is no doubt that the High Court has men- tioned that it

522

was admitted by the counsel for the Management that Mattoo possessed the requisite qualifications for the post but we do not understand how in the face of categoric affidavit of Dr. Kapila Vatsyayan such a statement could be made before the High Court.

We, therefore, hold that the qualifications/experience for the post of Principal were validly revised by amending the Rules in August, 1978. The advertisement issued on January 5, 1982 was in accordance with the Rules and the High Court was not justified in quashing the same. We, therefore, allow the appeal, set aside the judgment of the High Court and dismiss the writ petition filed by M.L. Mattoo before the High Court. There shall be no order as to costs.

Y. Lal Petition dismissed.

523