MANU/RH/1380/2011

Equivalent Citation: RLW2011(4)Raj3241

IN THE HIGH COURT OF RAJASTHAN
D.B. Civil Special Appeal (Writ) No. 312 of 2006
Decided On: 07.04.2011
Appellants:
Fateh
Vs.
Respondent: Jai Narain Vyas University & Ors.
Hon'ble
Prakash Tatia and Dinesh Maheshwari, JJ.

Kishan

Kapil

Judges/Coram:

Counsels:
For Appearing Parties: Servashri M. Mridual, M.C. Bhoot, P.P. Choudhary, Senior Advocates,
S.D. Vyas, Narpat Singh, A.K. Choudhary, P.R. Singh and Sanjay Mathur
Subject: Service
Catch Words
Mentioned IN
Acts/Rules/Orders:
Constitution Of India - Article 14, Constitution Of India - Article 16, Constitution Of India Article 309; Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 - Section 49, Madhya Pradesh
Vishwavidyalaya Adhiniyam, 1973 - Section 49(2); University Grants Commission Act 1956 Section 14, University Grants Commission Act 1956 - Section 2, University Grants Commission
Act 1956 - Section 2(i), University Grants Commission Act 1956 - Section 2(ii), University
Grants Commission Act 1956 - Section 26, University Grants Commission Act 1956 - Section
26(e), University Grants Commission Act 1956 - Section 26(g), University Grants Commission
Act 1956 - Section 3
JUDGMENT

Prakash Tatia, J.
1. Heard learned counsel for the parties. Four writ petitions, viz., SBCWP No. 3451/2001 - Fateh
Kishan Kapil vs. JNV University, Jodhpur & Ors. SBCWP No. 3704/2001 - Anil Pathak vs. JNV
University, Jodhpur & Ors. SBCWP No. 4314/2001 - Ms. Prabha Bhandari vs. State of Raj. &
Ors. SBCWP No. 4021/2002 - Dr. AK Gupta vs. JNV University, Jodhpur and SBCWP No.
3933/2001 were clubbed which is apparent from the order dated 20th Nov., 2001 passed in
SBCWP No. 4314/2001 and all the above writ petitions were heard together by the single bench
of this Court. However, all above writ petitions were decided by separate judgments delivered on
different dates.
2. In brief we would like to give details of the facts of each petition in brief and final decisions
given in above writ petitions by the single bench of this Court on different dates which is as
under:1. SBCWP No. 4314/2001 - Prabha Bhandari vs. State of Raj. & Ors., decided on 30.8.2002
(under challenge in SAW No. 632/2002):
3. This writ petition was filed by petitioner Ms. Prabha Bhandari. The above petitioner was
aspirant for the promotion from the post of Reader in department of Political Science and Public
Administration to the post of Professor under popularly known Career Advancement Scheme and
the full name of above scheme is "UGC Regulations 2002 Regarding Qualifications for
Appointment and Career Advancement of Teachers in Universities and Colleges" - A Scheme
given by the University Grant Commission (hereinafter referred to as 'the CAS') by purported
exercise of powers conferred by clause (e) and (g) of sub-section (1) of Section 26 read with
Section 14 of the University Grant Commission Act, 1956 (hereinafter referred to as the Act of
1956) superseding the regulations issued under University Grant Commission letter No. F193/74(CPP) Part (v) dated 13th June, 1983 and letter no. F1-1-11/87(CPP-II) dated 19th Sept.,
1991 and notification no. 1-93/74(CP) dated 19th Feb., 1984, 26th Nov., 1985 and No. F31/94(PS) dated 24th Dec, 1998. The petitioner before filing this writ petition took chance of her
selection and promotion in the said Career Advancement Scheme (CAS) and she also appeared in
the interview and before the results of selection could have been declared, preferred this writ
petition, The petitioner by this writ petition sought to challenge the process of selection on the
grounds that the respondent-university did not follow the procedure like the respondentuniversity did start the selection process in the month of Jan., 2001 without there being any
orders of implementation, without issuing eligibility list of all the candidates due for promotion
under the CAS nor issued seniority list in accordance with the Rules, which was mandatory
requirement for initiation of the process for giving promotion to the post concerned under CAS.
The petitioner specifically stated in the writ petition that the respondent-university was bound to
follow the mandatory guidelines issued by the UGC and the regulations framed by the UGC
under Section 26 of the UGC Act were mandatory in nature and, thereafter, alleged that the
respondent issued notification dated 7th Sept., 2001 after obtaining approval from the Chancellor
vide letter dated 27th August, 2001 making changes in the selection committee was illegal as was
violative of provisions contained in the Jai Narain Vyas University, Jodhpur Act, 1962. The
petitioner also raised several other pleas which we need not to mention here in detail because of

the reason that after referring all the pleas of the above petitioner in detail the learned Single
Judge allowed the writ petition of the petitioner and selection for the post of Professor for
Political Science Department was quashed on the ground of bias as respondent no. 4 Prof. LS
Rathore as Vice-Chancellor participated in the selection committee wherein he should not have
participated because of the reason that one of the candidate Dr. PS. Bhati was his close relative
and the selection committee could have proceeded even in the absence of the respondent no. 4.
The learned Single Judge, therefore, did not decide any of the issue raised by the petitioner
obviously for the reason that the plea of bias alone was found sufficient to quash the selection
process. The above judgment delivered by the learned Single Judge dated 20.8.2002 has been
challenged by the respondent Jai Narayan Vyas University, Jodhpur by preferring SAW No.
632/2002.
2. SBCWP No. 3451/2001 - Fateh Kishan Kapil vs. JNV University, Jodhpur & Ors. decided on
20th Sept., 2002 under challenge in SAW No. 663/2002 preferred by JNV University and in
SAW No. 312/2006 preferred by the writ petitioner Fateh Kishan Kapil:
4. The above petitioner Fateh Kishan Kapil's grievance was that in spite of his eligibility for
promotion to the post of Professor he has not been called for interview under the above CAS and
four persons junior to him have been called for interview. The petitioner found that Ordinance
317 making a change disadvantageous to the petitioner was not approved by the SENATE of the
respondent-university and, therefore, amended Ordinance has not taken shape of law. Even it has
not been approved by the Chancellor and the said change is void as well as has been carried
without jurisdiction. The petitioner therefore, in addition to declaration that Ordinance 317 be
declared void, in alternative, prayed' that it may be declared that note appended to Ordinance 317
was not applicable to the Readers who have completed 8 years. The petitioner, therefore, sought
relief of cancellation of selection process and prayed that the interviews held be declared illegal
and direction be issued to the respondents to make a seniority list after considering the
notification dated 14.3.2001 and declare the petitioner as senior to the persons named in the writ
petition. The relevant fact is that the petitioner in this writ petition also claimed benefit under the
CAS.
5. The learned Single Judge in this writ petition no. 3451/2001 of petitioner Fateh Kishan Kapil
after taking note of all the pleas taken by the petitioner and the respondents while in the process
of finalizing of the judgment noticed that certain provisions of Rajasthan Universities Teachers
and Officers (Selection for Appointment) Act, 1974 (hereinafter referred to as 'the Act of 1974')
may have the bearing on the question in issue, therefore, decided to give notice to the parties
regarding implication of Sections 11 and 12 of the Act of 1974. The learned Single Judge was of
the view that as per section 12 (2) of the Act of 1974 there may be possibility that only one
promotion was available under the Act of 1974 to the teachers of the University governed by the
Act of 1974. The learned Single Judge then placed the matter for further arguments of the
counsel of both the parties so that the implication of the provisions of the Act of 1974 can be
considered and it appears from the impugned judgment itself that none of the parties submitted
any more arguments on this question of law posed by learned Single Judge and, therefore, the
learned Single Judge observed that "The implication of these provisions was studied. The parties
were asked also about the implication of the amendment. Parties stated that they have understood

the implication of the amendment. It was also submitted that nothing in addition to which has
already been submitted, is required to be submitted."
6. In the background of above facts, the learned Single Judge proceeded to examine the
provisions of the Act of 1974 and amendments made time to time in the Act of 1974 vis-a-vis the
CAS and about the authority of U.G.C. Under the U.G.C. Act, 1956. The learned Single Judge
thereafter, held that there is no power seen in clause (e) and (g) of Sec. 26 of the Act of 1956 that
authorizes the UGC for providing any promotional avenue and create a cadre in an University.
Then the learned Single Judge held that, that being the position, the act of respondents in holding
the selection for appointment under CAS cannot be considered to be legal exercise and
consequently, there is no legal right in the petitioner which can be enforced and ultimately held
that no mandamus can be issued in favour of the petitioner for participating in an illegal activity.
The learned Single Judge then held that court cannot issue direction to any statutory authority to
do something in violation of statutory provisions after relying upon the judgment of the Hon'ble
Supreme Court delivered in the case of Karnataka State Road Transport corporation vs.
Ashrafulla Khan & Ors. reported in JT 2002 (1) SC 113. In view of the above declaration made
in the impugned judgment dated 20.9.2002, the learned Single Judge held that it is not necessary
to go into the other questions raised by the petitioner which will be decided in other writ
petitions pending adjudication.
3. SBCWP No. 4021/2001 - Dr. A.K. Gupta vs. State & Ors., decided on 18.12.2002 under
challenge in SAW No. 65/2003 - JNV University vs. Dr. A.K. Gupta and in SAW No. 153/2003
preferred by Dr. RP Tripathi:
7. This writ petition was preferred by Dr. AK Gupta who was Asstt. Professor in the subject of
Physics as on 1st April, 1985 and was continuing as such and got the senior scale after
completion of 5 years and therefore, was aspirant for the promotion under the CAS but
amendment made in Ordinance 317 vide notification dated 13th July, 2001 and 7th Sept., 2001
came in his way, therefore, he prayed for quashing all those notifications with specific prayer
that those notifications be quashed and set aside being ultra vires the regulations framed by the
UGC in March, 2000, obviously referred above as CAS. The petitioner further prayed that
respondents be directed to make provisions under the CAS as per the procedure prescribed under
the Rules of 1990 and respondents may be directed to consider the case of the petitioner for
promotion under CAS from the date he became eligible for such promotion as per the procedure
prescribed under the Rules of 1990 and grant him promotion if he is found suitable. The
petitioner also challenged the change in composition of the selection committee made by the
Ordinance. In this case also, the petitioner preferred writ petition to get the benefit under the
CAS.
8. The learned Single Judge specifically quoted the reliefs claimed by the petitioner in the
impugned judgment dated 18.12.2002 and also specifically took note of the plea of the petitioner
that he is seeking order against the respondent-University to implement the said scheme and
then, took note of the direction issued by the Ministry of Human Resource and Development
(Department of Education) issuing necessary direction to the UGC to the effect that UGC shall

frame regulations for implementation of the scheme.

9. Then the learned Single Judge firstly held that the cause of action arose to the petitioner in the
year 1998 which has not been agitated by the petitioner at the relevant time when the petitioner's
rights became mature, therefore, the writ petition was liable to be dismissed on the ground of
delay and laches. Then secondly, it has been held that a provision for ex-cadre post has been
deleted from the Act of 1974 then there remains no availability of chance of promotion on excadre post and therefore, there cannot be any promotion on such post and ultimately, the
petitioner's writ petition was dismissed. The judgment dated 18.12.2002 referred above, has been
challenged in SAW No. 65/2002 preferred by the JNV University and in SAW No. 153/2003
preferred by Dr. RP Tripathi. Substantially, so far as second reason given by the learned Single
Judge is based on the decision given in Fateh Kishan Kapil's case.
3. SBCWP No. 3704/2001 - Anil Pathak vs. JNV University, decided on 21.12.2002 (under
challenge in SAW No. 66/2003 preferred by the JNV University and in SAW no. 313/2006
preferred by the petitioner Anil Pathak):
10. In this writ petition also, the petitioner was appointed as Associate Professor on 3rd July,
1987 and, thereafter he was promoted to the post of Reader (Associate Professor) on 25th Sept.,
1987 and at the relevant time he was the Head of Department of English of the respondentUniversity. The petitioner was also aspirant for the post of Professor under the CAS and he also
facing the difficulty because of the amended provision in Ordinance 317 and, therefore, the
petitioner preferred the writ petition to challenge the amendment in Ordinance 317 with further
prayer that respondents may be directed to call the petitioner for interview treating him to be
eligible for the promotional post and consider his case for grant of promotion and if found
suitable be granted promotion.
11. This writ petition of the petitioner was decided on 21.12.2002. The learned Single Judge in
this judgment found serious contradiction in the stand of the University and held that the
selection process for all the departments which have been taken for appointment under CAS has
been done in the light of the qualifications which according to the University itself has not been
provided for CAS and, therefore, the exercise of promotion in the name of CAS is without
jurisdiction. The learned Single Judge also observed that the process of promotion by only
interview which is too uncertain and, therefore a very limited credence can be given to such
procedure and in the present case there are changes of misusing this facet. The learned Single
Judge also observed "In this background, as situations stand presently, a re-thinking is required to
be done about providing provisions for promotion to the University Teachers." Then learned
Single Judge considered how the promotions are given in other services. The learned Single
Judge held selections in questions to be discriminatory and also result of non-application of mind
and violative of Article 14 of the Constitution of India and set aside the entire process of
selection under CAS and dismissed the writ petition of the petitioner. To challenge the judgment
dated 21.12.2002 the respondent-University preferred SAW No. 66/2003 and writ petitioner
preferred SAW No. 313/2006.
12. The facts of above cases show that all writ petitioners were aspirant for the promotional post

appropriate to their qualifications under the CAS and some of them even faced the interview who
were eligible and others who were not found eligible, challenged the eligibility criteria adopted
in process of selection for promotional post under the CAS and none of the petitioners
challenged the scheme CAS and power and authority of the U.G.C. in framing the scheme and its
binding nature upon the University, therefore, there was no fact foundation for challenge to the
power and authority of U.G.C. and to the CAS in the writ petitions. Further more, all the
petitioners even did not challenge the CAS or U.G.C's authority and power during arguments
which is apparent from the judgments impugned itself but, after hearing, it struck to the learned
Single Judge that implication of certain provisions of the Act of 1974 was having material
bearing on the issue and, therefore, the parties are required to be heard on this aspect again. The
learned Single Judge ordered for listing up the matter in the court and passed the following order
in SBCWP No. 3451/2001 on 11th Sept., 2002:
The case was listed on a notice being issued to the parties to understand the implications of
Section 11 and 12 of the Rajasthan Universities Teachers and Officers (Selection for
Appointment) Act, 1974. The counsel for the respondent-University has produced an Amending
Act dated March 30, 1998. To understand the amendment. Put up tomorrow i.e., 12.9.2002.
On 12th Sept., 2002 the following order was passed:
Heard.
A question was posed regarding the implications of Section 11 & 12 of the Rajasthan
Universities Teachers and Officers (Selection for Appointment) Act, 1974 (in short 'the Act of
1974'). Counsel for the University has produced before me the Amending Act which amends
Sections 2, 11 and 13 of the Act of 1974. It is submitted that the implication of the amendment is
understood by the counsel for the University and parties. Nothing further is required to be
submitted by the counsel for the parties.
Since the parties have understood the implication of amendment produced, nothing further is
required now. The case will be listed for pronouncement of judgment in future.
And thereafter, the different judgments were delivered on different dates.
13. All the learned counsels argued only on the issues decided by the learned Single Judge of this
Court in Fateh Kishan Kapil's case irrespective of the fact in which case he is appearing. Only
the learned counsel Shri M.C. Bhoot appearing in the case of Ms. Prabha Bhandari supported the
judgment delivered in Fateh Kishan Kapil's case. We found that other matters were decided by
the learned Single Judge on different grounds and reasons, yet learned counsels assailed the
judgment of Fateh Kishan Kapil's case, obviously for the reason that if the judgment in Fateh
Kishan Kapil's case is upheld and it is upheld that appointment and promotion can be given only
under the Act of 1974 and under the Act of 1974 no posts of Professor (promotion), Reader
(promotion) are available and Section 12 of the Act of 1974 has overriding effect over law
enacted by State as well as over orders issued under Central Act, like UGC Act, 1956 and it is
held that UGC had no power to create post for teacher in University under any of the provisions

of the UGC Act, 1956 and yet created the post then none of the petitioner can get any relief.
Therefore, it will be appropriate for us to first examine the legality and validity of the judgment
delivered in the case of Fateh Kishan Kapil.
14. To decide above issues, it will be appropriate to first look into the provisions of the Act of
1974, as they were and as they are after the passing of amending Act 3 of 1998 published in the
Gazetted on March 30, 1998.
15. The learned Single Judge noticed the preamble of the Act of 1974 which is:
An Act to provide for (selection for appointment) of teachers and officers of the Universities in
Rajasthan and for matters connected therewith.
16. The learned Single Judge held that this is an Act which was enacted for selection and
appointment of teachers and officers in the Universities in Rajasthan. It provides for connected
matters also and thereafter held that it cannot be said that this covers the entire field of incidence
of appointment. The learned Single Judge held that Section 12 has been designed to give an
overriding effect to the Act of 1974 as sub-section (1) of Section 12 says that the provisions of
this Act will have effect notwithstanding, anything contained in the "relevant law" and "relevant
law" has been defined under sub-section (vi) of Section 2 which says:relevant law" means an enactment of Rajasthan State Legislature establishing a University in
Rajasthan and it includes the statutes, ordinances, bye-laws, rules, notifications or orders made
thereunder and as amended from time to time.
17. Then the learned Single Judge noticed Statute 17 and sub-section (ix) of Section 2 of the Act
of 1974 and held that neither statute 17 nor any provision of the Act of 1974 speaks of any
promotion as provided under the UGC Regulations, 2000 (Career Advancement Scheme). The
learned Single Judge then held that even Sections 26(e) and 26(g) of the UGC Act 1956 do not
authorise the UGC to provide for any kind of cadre in the University or create posts and since
posts of Professor (Promotion) or Reader (Promotion) have neither been provided in statute nor it
is provided in the Act of 1974, then any reference made in Ordinance 317 is inoperative because
of the operation of Section 12 of the Act of 1974, obviously, which according to the learned
Single Judge has overriding effect and unless the provision is made under the Act of 1974, no
post can be provided by any other law. The learned Single Judge also held that in view of subsection (xi) of section 2 any vacancy in the post of a teacher can be filled up under and in
accordance with the provisions of the Act of 1974 only and not otherwise. It certainly means that
no other method can be employed for giving appointment by way of promotion, otherwise than
as provided by the Act of 1974.
18. The learned Single Judge, after noticing the observations made in Craies on Statute Law,
Sixth Edition by S.G.G. Edgar and the law laid down by Hon'ble the Supreme Court in the case
of Dr. Rashmi Srivastava vs. Vikram University and others (MANU/SC/0326/1995 : AIR 1995
SC 1694) found that Hon'ble Supreme Court held that mere adoption of a scheme would not by
itself create a new source of recruitment for promotee Readers and Professors unless Section 49

of the M.P. Vishwavidhyalaya Adhiniyam was suitably amended. The learned Single Judge then
again noticed the overriding effect of Section 12 of the Act of 1974 and held that Section 12 of
the Act of 1974 negated the source of appointment otherwise than by the Act of 1974.
19. Relying upon the judgment of Rashmi Shrivastava the learned Single Judge held that
"Hon'ble Supreme Court has considered such career advancement promotions to be an ex-cadre
situation. Such promotions cannot be conceived in the present set of things, as reference to excadre was present in the Act of 1974 which was consciously obviated." In addition to above, the
learned Single Judge took note of the earlier procedure adopted by the University for same kind
of promotions which were implemented only after incorporating Section 11 in the Act of 1974
and held that from above facts, it is clear that the State has the understanding that any scheme
providing for appointment can only be implemented if that is incorporated in the Act of 1974 and
presently, such career advancement scheme having not been incorporated in the Act of 1974,
therefore, is not enforceable.
20. On above reasons and findings, it has been held that the petitioner since seeking mandamus
against the respondent for proper implementation of the Career Advancement Scheme referred
above which has no legal sanction for the respondent-University appointment/promotion,
therefore, mandamus cannot be issued as mandamus can be issued to enforce the rule of law and
not to pass an order or direction which is contrary to law.
21. The learned counsel for the petitioners as well as other counsels challenging the judgment
delivered in Fateh Kishan Kapil's case and the view taken/followed in other connected matters,
drew our attention to the various provisions of the Act of 1974, the reasons and object for
amending the Act of 1974 by the amending Act of 1998, the relevant provisions of the UGC Act,
1956 and the scheme framed thereunder and its effect and submitted that career advancement
scheme as given by the UGC Regulations, 2000 has been accepted and implemented in all the
Universities established or incorporated by or under a Central Act, Provincial Act or State Act,
every institution including a constituent or an affiliated college recognised by the University
Grants Commission in consultation with University concerned under clause (f) of Section 2 of
the University Grant Commission Act, 1956 and it covers every institution deemed to be a
University under Section 3 of the Act of 1956 which is clear from sub-clause (ii) of clause (1) of
the UGC Regulations, 2000. The Regulations, 2000 of UGC and Scheme as such is binding, is
admitted case of all the parties. None of the party challenged the UGC Regulations, 2000 and
C.A.S. (Schemes) nor is challenging and none of the party can challenge the action of the U.G.C.
and its acceptance by Universities and by the Govt.
22. The learned counsel for the petitioners and the counsels challenging the judgments referred
above, submitted that the scheme(CAS) has not only been implemented in all the Universities in
the entire country but also has been implemented in the State of Rajasthan in all other
Universities except in respondent-the Jai Narayan University which is by virtue of the decision
rendered by the learned Single Judge in Fateh Kishan Kapil's case. The learned counsel also
submitted that none of the petitioner or respondent, in any of the writ petitions, decided by the
learned Single Judge by different judgments, after hearing the arguments in all the matters
together that UGC Regulations, 2000 was enacted de hors power, authority and jurisdiction of

the University Grants Commission Act, 1956 nor any of the parties in the petitions or in the
arguments challenged the UGC Regulations 2000 or challenged the action of the University in
adopting the UGC Regulations on the ground of it being unenforceable or being not applicable to
the Jai Narayan Vyas University and none of the party ever contended that promotion sought by
the petitioners cannot be given in UGC Regulations, 2000. It is vehemently submitted that, to
seek relief, one is required to plead facts and grounds and, thereafter, is required to seek relief
from the Court. Here in this case, there was neither pleading nor arguments nor it was prayed by
any of the parties that the UGC Regulations, 2000 be declared illegal, being issued exceeding
jurisdiction under the Act of 1956 or are not applicable to the University etc. and, therefore, there
was no prayer in the writ petition. In that situation, the learned Single Judge had no jurisdiction
to make declaration as has been made in the impugned judgment. The learned counsel for the
petitioners have challenged the impugned judgments except, learned counsel Shri M.C. Bhoot,
counsel for the petitioner-Prabha Bhandari who gave different interpretations to the provisions of
the Act of 1974, the Act of 1956 and the powers of the UGC under the Act of 1956 to support the
judgments impugned.
23. We considered the submissions of the learned counsel for the parties as well as record and the
relevant provisions and the judgments relied upon.
24. We may look into the history of the Acts and creation of J.N.V. University and procedure for
appointment of teacher in the University.
25. Initially the respondent-university at Jodhpur in the name of University of Jodhpur was
established under the University of Jodhpur Act ( No. 17) of 1962. The name of Jodhpur
University was changed to Jai Narayan Vyas University, Jodhpur by Jodhpur University (Change
of name (Amendment) Act, 1991. The University's authorities as per Section 14 of the Act of
1962 are:(i) the Senate,
(ii) the Syndicate,
(iii) the Academic Council,
(iv) the Finance Committee,
(v) the Faculties,
(vi) the Committees of Courses and Studies, and
(vii) such other authorities as may be declared by the Statutes to be the authorities of the
Universities.
26. The University has Supreme body known as "Senate" As per Sec. 15 of the Act of 1962, the
Senate shall be the supreme authority of the University, and shall have the power to review the

acts of the Syndicate and the Academic Council, and shall exercise all the powers of the
University not otherwise provided for by this Act or the Statutes. Composition of Senate is given
in sub-sec. (2) of Sec. 15 of the Act of 1962. As per sub-sec. (2), the Senate is body constituted
by large number of persons including persons holding very high offices. Number of members of
Senate are not the persons within the University but are the persons holding high offices like, the
Chief Justice of Rajasthan High Court, Jodhpur; the Minister for Education, Rajasthan,
Chairman, Board of Secondary Education, Rajasthan; the Director of Education (Primary and
Secondary), Rajasthan; the Director of Technical Education, Rajasthan; two members, not below
the rank of the Head of the Govt. department which are, (i) Medical, (ii) Industries and
Commerce, (iii) Forest, (iv) Public Works, (v) Mines and Geology and (vi) Development and
Planning nominated by the State on rotation and also includes all the members of the Syndicate,
all the Heads of University Departments of the status of a Professor or a Reader, one Principal or
Head of constituent or affiliated colleges or institutions elected by the Principals and Heads of
such colleges or institutions from amongst themselves, one member of the State Legislature
nominated by the Speaker, one member each nominated by (i) the Ministry of Defence Research
and Development Organisation, (ii) Oil and Gas Commission and (iii) the Central Arid Zone
Research Institute, Jodhpur and further Chairman, Jodhpur Municipal Board/Corporation; two
members to be nominated by the State Government. There may be life Members who fulfil the
conditions which is provided under sub-cl. (xi) of cl. (2) of Sec. 15. At this juncture, we may
observe that it is difficult to count total number of members in the Senate. At present we are not
concerned what are the aims and objects behind providing such a large body and we are not
concerned how it will work, fact is that the Senate is the supreme authority of the University.
27. As per Section 16, the executive body of the University is Syndicate. The Syndicate is
constituted by the following persons:
(i) Vice-Chancellor;
(ii) two persons nominated by the Vice-Chancellor from amongst the Deans of faculties or
Directors of constituent colleges or Principals of affiliated colleges;
(iii) two University Professors nominated by the Vice-Chancellor;
(iv) one educationist nominated by the Chancellor;
(v) Director of College Education, Rajasthan;
(vi) two persons nominated by the State Government;
(vii) two teachers who have put in not less than seven years teaching experience in an institution
of higher education in Rajasthan as on 1st January immediately preceding the year in which
elections are held, other than University Professors, Deans, Principals, Head of affiliated colleges
and Directors of constituent colleges of the University, to be elected by the teachers of the
University and of its constituent and affiliated colleges from amongst themselves;

(viii) two members of the State Legislature nominated by the State Government; and
(ix) one person to be elected by the Senate from amongst students who are elected as 'other
members' of the Senate under sub-clause (a) of clause (xxviii) of sub-division III of sub-section
(2) of Section 15 and the ex-officio 'other members' of the Senate under clause (xxix) of subdivision III of sub-section (2) of the said section.
28. The Academic Council is the Chief Academic body of the University which shall have
control and is responsible for general supervision and is responsible for the maintenance of
standard of instructions, education and examination within the University and shall exercise such
other powers and perform such other duties as may be conferred or imposed upon it by the
Statutes. It also has advisory role to advise the Syndicate on all academic matters. Its constitution
and the term of office members, other than ex-officio members, shall be prescribed by the
Statutes.
29. Section 18 provides that subject to the provisions of this Act, the constitution, powers and
duties of the authorities of the University, other than the Senate, the Syndicate and the Academic
Council shall be provided for by the Statutes.
30. What can be provided by Statute is given under Section 21 of the Act of 1962 and how
Statute can be made, is provided by Section 22 subject to the provisions of the Act of 1974 and
the Statute referred above. There is provision for enacting Ordinance for all or any of the matters
referred in clauses (a) to (m) under Section 23, Clause (j) of Section 23 provides that
emoluments and terms and conditions of service of teachers of the University and other staff of
the University may be provided by the Ordinances.
31. Section 24 provides how Ordinances can be made and in present controversy, one of the
issues before us is with respect to the making of Ordinance because of the reason that one of the
contentions of the learned counsel supporting the impugned judgment is that the procedure for
making Ordinance as provided under Section 24 has not been followed, therefore, the relevant
part of the Ordinance 317 is no Ordinance in. the eye of law and cannot be enforced.
32. Law for securing impartial selection of personnel by a uniform standard of recruitment in all
the Universities of Rajasthan was enacted in the name of the Rajasthan Universities Teachers and
Officers (Special Conditions of Service) Ordinance, 1974 (Ordinance No. 17 of 1974) which was
promulgated by His Excellency the Governor of Rajasthan on 21.7.1974. The said Ordinance
was replaced by the Rajasthan Universities and Officers (Special Conditions of Service) Act,
1974. Up to the year 1984, it was amended for six times. As stated above, this is an Act
applicable for all the Universities in Rajasthan for providing for selection, for appointment of
teachers and officers of the Universities in the Rajasthan and for the matters connected there
with. The learned Single Jude was of the view that no appointment/promotion (including Excadre appointments) can be given in the Universities of Rajasthan which is not provided by the
Act of 1974 and this is disputed by the counsels for the petitioners assailing the impugned
judgment. We have already noticed how the learned Single Judge felt persuaded to give findings
recorded above in the impugned judgment, which we are called upon to reexamine in the light of

the arguments advanced by the learned counsel for the parties with the help of all above referred
provisions of laws, which we are going to examine hereunder.
33. After enacting the Act of 1974 and even after amendments made five times in the Act of
1974, non-availability of avenue for promotion to deserving teachers in the Universities was felt
by the State and, therefore, amendment in the Act of 1974 was made in the year 1984 and new
Section 2(i) and 2(ii) were inserted in the definition clause and new Section 11 in the Act of 1974
was inserted enabling the State Government to create ex-cadre posts of Professor and Reader in
each faculty of the, University to the extent of 1/3rd of eligible persons as on 1st January of each
year. After insertion of new section 11 in the Act of 1974, in the year 1984, the Universities
started giving promotions on ex-cadre posts of Professors and Readers. This procedure continued
and during continuation of said procedure, in June, 1988 revised UGC pay scale were extended
to the teachers in the Universities. The scheme of said pay revision also provided for avenue of
promotion to the teachers in the University through the Career Advancement Scheme. The State
thought it fit that now there is no reason to continue with the ex-cadre promotion scheme
(obviously, which was provided by amendment of the Act of 1974) in all the Universities of State
as sufficient personal promotional avenues became available under the Career Advancement
Scheme framed by the UGC. The State felt that in view of this changed circumstance deletion of
schedule and substitution of Section 11 in the Act of 1974 and some other consequential
amendments are needed. Therefore, the State Government finding that session of Rajasthan
Legislative Assembly was not going on and circumstances necessitated for the Government of
Rajasthan to take immediate action, therefore, for the purpose of making necessary amendments
in the Act of 1974, Ordinance be promulgated and the Rajasthan Universities Teachers and
Officers (Selection for Appointment) Ordinance, 1996 (Ordinance No. 2/1996 was promulgated.
Said Ordinance of 27.12.1996 ceased to operate with effect from 3.3.1997 as the State
Government could not get it enacted as an Act in the short session of assembly, therefore, another
Ordinance No. 1/97 was promulgated by the Governor. Then it was decided that now the
provision contained in Ordinance 2/1996 and Ordinance 1/1997 be enacted with retrospective
effect on and from 27.12.1996 and Bill was placed before the Legislative Assembly. The above is
the statement of objects and reasons for enacting the Rajasthan Universities Teachers and
Officers (Selection for Appointment) (Amendment) Act, 1998. Therefore, it appears that because
of subsequent development and because of availability of Ex-cadre promotion opportunities to
the teachers of the University under CAS Scheme, the provisions providing Ex-cadre
promotional opportunities in the Act of 1974 to teachers of Universities were considered to be of
no use and, therefore, sub-clause (i) and (ii) inserted by amendment in the Act of 1974 deleted as
they became unnecessary in view of adoption of new Scheme, i.e., CAS. Since before that
appointments were made already in ex-cadre posts, therefore, those appointments were saved by
new Section 11 in the Act of 1974. At this juncture, we may notice that, though Act of 1974 was
amended in the year 1984 to provide opportunities of promotion to University teachers but it was
kept ex-cadre post promotion and under the U.G.C. Scheme also promotions are ex-cadre as it is
not a cadre promotion. This is clear from the fact that the State Government made this provision
under Section 11 after noticing that avenues for promotion to the teachers in the University were
not available and then instead of making provision of cadred promotional posts, it was decided
by the State to allow creation of ex-cadre posts of Professors and Readers in the Universities.
This clearly suggests that law framer's intention was very clear from the beginning that in spite

of regular appointments of Readers and Professors as already provided under the Act of 1974,
further opportunities of excadre appointment be provided. Therefore, along with the
appointments under the Act of 1974 on the post of Reader and another on the post of Professor,
ex-cadre promotion were permitted.
34. Since the Act does not provide for any post with the nomenclature Professor (Promotion),
therefore, there is no promotional avenue defined in this Act. Sub-section(xi) of Section 2 of the
Act of 1974 both before amendment in the year 1998 by the Act No. 3 of 1998 as well as it is
after amendment are also relevant which are as under:(xi) "University concerned" means the University in which a vacancy in the post of a teacher or
an officer is to be filled up or an ex-cadre post of a Professor or a Reader is to be filled up, by
personal promotion of a Reader or, as the case may be, of a Lecturer, in accordance with and
under this Act.
By Amendment Act No. 3/1998 above clause (xi) was substituted by:(xi) "University concerned" means the University in which vacancy in the post of a teacher or an
Officer is to be filled up under and in accordance with the provisions of this Act; and.
35. In the impugned judgment, it has been held that as per clause (ix) of Section 2 of the Act of
1974, the teacher can only be Professor, Reader or a Lecturer and such other person, by whatever
name designated by or under the relevant law, imparting instruction, (or conducting and guiding
research or extension programmes in a University), are the only persons who can get
appointment and this view is fortified by the action of the State itself that when the State
intended to provide promotional avenues then the State inserted the Section 11 in the Act of 1974
even for creation of ex-cadre post and now that ex-cadre posts have been made to continue only
up to the time by which the person holding that promotional post under the provision of the
unamended Section 11, retires and thereafter that promotional post shall stand abolished which is
clear from the substituted section 11 of the Act of 1974, substituted by the Act of 1998, which
provides transitional provisions relating to ex-cadre promotion scheme. This new section 11 is as
under:11. Transitional Provisions relating to ex-cadre promotion Scheme-Personal promotion granted
against ex-cadre posts under the erstwhile scheme of personal promotion, shall be entirely
personal to the teacher concerned and the ex-cadre post to which such personal promotion was
granted shall cease to exist as soon as the teacher promoted to such a post cases to hold that post
permanently for any reason whatsoever, and on his ceasing to hold such ex-cadre post, the
original post from which such personal promotion was made of a teacher shall revive.
36. We are of the view that the purpose for making amendment in the Act of 1974 by the
amendment made in the year 1984 and subsequent amendment by Ordinances No. 2/1996 and
1/1997 and by Act of 1998 substitution of Section 11, and deletion of Section 2(i) and (ii) are
only for removing of promotional avenues to the teachers in the Universities in Rajasthan under
the Act of 1974 and so was done purposefully to avoid claim of promotion to the ex-cadre post of

Reader and Professor parallel, one under the Act of 1974 and another under U.G.C. Scheme.
Therefore, the subsequent amendment in the Act of 1974 was to take out the ex-cadre post from
coverage of Act of 1974 so as to make room for such or like posts under the scheme framed by
the UGC under the Act of 1956. When promotion avenues were not available in the Act of 1974,
it was made and created in the Act of 1974 itself by amendment made in the year 1984. That
purpose was achieved and subsequent event of a new scheme given by the University Grants
Commission to be applied for all the Universities in the entire country, the State found that the
provision for creation of ex-cadre post and promotion thereon could not have been continued
under the Act of 1974, therefore, the Ordinances referred above and amendment Act, 1998 were
promulgated and enacted and thus were not with intent to take away all promotion avenues of the
teachers of the University in the State of Rajasthan.
37. The learned Single Judge was of the view that the Act of 1974 has overriding effect, it
overrides all the Acts, Laws and since there is no provision for ex-cadre post in the Act of 1974,
therefore, ex-cadre post appointment/promotion cannot be given in the University even if it is
provided by the Central Act or thereunder as has been provided by the U.G.C. in present case.
We are of the view that overriding effect of any Act can only override all other acts dealing with
any matter covered by the Act which has overriding effect and all other laws shall cease to
operate with the enactment of the act providing overriding effect. We found that there is no
provision in the Act of 1974 (of State Act) which has overriding effect over Central Act and
Regulations. Section 12 of the Act of 1974 is relevant which is as under:12.(1) The provisions of this Act shall have effect notwithstanding anything contained in the
relevant law.
(2) So much of the relevant law as provides for the matters covered by this Act shall, as from the
commencement of this Act, cease to have effect as respects those matters.
38. A bare perusal of the Section 12 will make it clear that this provision specifically provides
that provisions of the Act of 1974 shall have effect notwithstanding anything contained in the
relevant law and though the learned Single Judge noticed what is the meaning of the words
"relevant law" in the context of the Act of 1974, but it appears that learned Single Judge failed to
notice that the U.G.C. Act 1956 is not the "relevant Law" in the context of Act of 1974. The
"Relevant Law" as defined in sub-clause (vi) of Section 2 is an enactment of the Rajasthan State
Legislature establishing a University in Rajasthan and it includes the Statutes, Ordinances, byelaws, rules, notifications or Orders made thereunder and as amended from time to time and not
the Central law, Central By-laws and Central Regulations framed under the Central Acts. The
decision of the Single Bench would, therefore, mean to declare that since any
appointment/promotion can only be given in a University in Rajasthan under the Act of 1974 and
all the other laws shall cease to operate, therefore, even the law framed under the Central Act or
scheme framed under the Central Act shall also cannot have binding effect and cannot be
operated. This, in our opinion, is not the correct position of law and this view finds full support
from the judgment rendered by the Hon'ble Apex Court in the case of Usmania University
Teachers Association vs. State of A.P. (MANU/SC/0126/1987 : AIR 1987 SC 2034). Not only
this but Hon'ble the Apex Court in the case of Annamali University vs. Secretary of Govt.

MANU/SC/0283/2009 : (2009) 4 SCC 590), even in the case where conflict was projected
between two Acts enacted by the Parliament, under Schedule II List I Entry 66, that is UGC Act,
1956 and another enacted under List II Entry 25 of the Constitution, held that the UGC Act
would prevail.
39. At this very place, we would like to mention here that Section 3 of the Act of 1974 though
says that:
3.(1) Notwithstanding anything contained in the relevant law, as from the commencement of this
Act, no teacher and no officer in any University in Rajasthan shall be appointed except on the
recommendations of the Selection Committee constituted under Section 5.
(2) Save as otherwise provided in sub-section (3) every appointment of a teacher or of an officer
in any University made in contravention of subsection (1) shall be null and void.
(3) Nothing herein contained shall apply to the appointment of a teacher or an officer as a
stopgap arrangement for a period not exceeding one year or to the appointment of a pat time
teacher or of a teacher or officer in the pay scale lower than that of Lecturer of Assistant
Registrar respectively.
Explanation- The expression "appointed" in subsection (1) shall mean appointed initially and not
appointed by way of promotion.
40. However, the explanation appended to Section 3 made it clear that the expression
"appointed" in sub-section (1) shall mean appointed initially and not appointed by way of
promotion. Therefore, restriction as imposed by sub-section (1) of Section 3 by the Act of 1974,
has no application to the appointment given by way of promotion and therefore, there is no
restriction in the Act of 1974 for giving appointment by way of promotion under Section 3 of the
Act of 1974. Otherwise interpretation will amount to adding the words "or appointment by way
of promotion" which is impermissible and also would render the explanation appended to
Section 3 of the Act 1974 redundant.
41. Another aspect which though has been noticed by the Single Bench in the Act of 1974 that
the Act of 1974 is an Act providing selection for "appointment of teachers" and the officers of the
Universities in Rajasthan and the Act of 1974 as such is "not providing for regular promotions or
ex-cadre promotion" from the post of initial appointment, either under the Act of 1974 as it was
before amendment of 1984 nor even after amendment of 1984 which made provision under
Section 11 of the Act of 1974 of creating ex-cadre posts of Reader(Promotion) and Professor
(Promotion) but it led to wrong interpretation that the subjects which are not covered by the Act
stand prohibited. It is true, when procedure is prescribed by law then all other mode stand
excluded even if not prohibited expressly but, here in this case, UGC has special power and
authority under Central Act to deal in the affairs of the Universities, therefore, above principle
has no application to the facts of this case. By deletion of Section 11, which was in existence
before the amendment of 1996 and thereafter by the amendment Act of 1998, what has been
taken away is only the scheme of personal promotion to teachers and Readers against the ex-

cadre post and after substitution of new section 11 as substituted by the Ordinances of 1996,
1997 and the Act of 1998, the Act of 1974 remains as an Act providing for only appointment to
the initial post of teachers and, therefore, there is a vacuum of legislation for any opportunity of
promotion to the University teachers and this vacuum was created consciously by the State so as
to permit the scheme formulated by the UGC under the Central Act, i.e. University Grant
Commission, 1956 to occupy the field. Therefore, the UGC Regulations, 2000 could have
occupied the field, as the subject as prescribed in scheme 2000 of the UGC is an independent
scheme, contrary to which there is no provision in the Act of 1974 nor the Act of 1974 covers
any of the fields provided in the Scheme of 2000. Therefore, strictly speaking sub-section (1) and
(2) of Section 12 are not losing their force, and effect in any manner because of adopting CAS by
the Universities in Rajasthan.
42. Again, as already stated above, there is no provision for regular promotion under the Act of
1974 and so is further clear from the definition of teacher given in sub-clause (ix) of clause (1) of
Section of the Act of 1974 which says;
(ix) "teacher" means a Professor, Reader or a Lecturer of any faculty of a University and such
other person, by whatever name designated by or under the relevant law, imparting instruction or
conducting and guiding research or extension programmes in a University.
43. It appears that purposefully all Professors, Readers and Lecturers have been included in the
definition of 'teacher' as per sub-clause (ix) of subsection 1 of Section 2 of the Act of 1974 and,
therefore, the persons are to be appointed on such post of Professor, Reader or Lecturer and are
not promoted from one post to another post and, therefore, there is no provision for constituting
of selection committees under Section 5 of the Act of 1974 for giving "promotion" but the
committee is constituted for "selection of a teacher" and as per teacher's definition given in the
Act itself it includes Lecturer, Reader and Professor.
44. At this juncture we may again recapitulate that Section 21 of the Act of 1962 provides that to
give effect to the Act of 1962, the Statute may be framed and how Statute can be made is
provided under Section 22 of the Act of 1962 and Statute 17(1) says that members of the
teaching staff in the University shall consist of the Professors, Readers or Lecturers or other
persons serving on other posts mentioned in sub-clause (a) and (b). The learned Single Judge was
of the view that in Statute 17 made by the University, there is no reference of post like
Professor(Promotion) or Reader (Promotion), but as already stated that the Act of 1974 made
provisions for cadred posts and, admittedly, the post in question which is under consideration
before us is not the cadred post. Not only this, when the sub-clause (i) and sub-clause (2)(b) of
sub-section (1) of Section 2 was in force even then the ex-cadre post was not as such referred,
mentioned and included in Statute 17(1) or (2). The plain and simple reason is that the ex-cadre
post was never got any reference, its name in Statute 17 and non-inclusion of any ex-cadre post
in Statute 17 cannot debar the University to give ex-cadre appointment. At the cost of repetition
we may state that the Act of 1974 bars only these appointments for which there is provision in
the Act of. 1974 and not barring ex-cadre appointments.
45. Now, if we look to the pleadings of Fateh Kishan's case wherein core issue was decided, then

it was the case of even petitioner that U.G.C. has been constituted under the legislative power of
the Union under Entry 66 of Schedule VII and the area occupied by U.G.C. Act of 1956 cannot
be infringed by the Act of the State. We would like to refer the pleading made in Fateh Kishan's
case which is even referred in the impugned judgment at page 2.
46. The contention of the petitioner in Fateh Kishan Kapil's case was "that the University Grants
Commission has been constituted under the legislative power of the Union under the Entry 66 of
Schedule VII wherein it has been provided that in the matters of education, University will be
guided by Regulations framed by the UGC. The Hon'ble Supreme Court in a case decided in the
matter of Osmania University Teachers Association vs. State of Andhra Pradesh and another
(MANU/SC/0126/1987 : AIR 1987 SC 2034) held that State has got no power to pass any act
which are in the same terms as that of the University Grants Commission Act, 1956 and thus area
occupied by the Act of 1956 cannot be infringed by the Act of State." (emphasis supplied). The
facts and the legal position as stated above made it clear that the University and the State
Government have decided to give teachers of the University in Rajasthan, the opportunities
under the regulations framed by the UGC and there is no law prohibiting implementation of
UGC Scheme nor there is conflicting scheme in any law then it is clear from the statement of
objects and reasons for the Act of 1998 that to facilitate the promotion under the regulations
farmed by the UGC, the suitable amendments were made in the Act of 1974 then the University
and the State were fully justified in taking a decision to implement the UGC Scheme. Neither the
University disputed this legal position that University Grants Commission has been constituted
under legislative power of the Union under Entry 66 of schedule VII and on framing regulations
by the UGC, the University will be guided by those regulations nor any of the petitioner
disputed. The learned Single Judge also has not rejected the contention of the petitioner that the
State has got no power to pass any Act which is in the same terms as that of the University
Grants Commission Act, 1956 nor has power to enact any law which is occupied by the Act of
1956, The intention of the State was clear and obvious that UGC regulations of 2000 providing
CAS be adopted in the Universities in Rajasthan.
47. The learned Single Judge held that clause (e) and (g) of Section 26 of the University Grants
Commission Act, 1956 nowhere provides for creation of cadre for post of teachers in the
University. The Clause 26(e) and (g) of the Act of 1956 are as under:(e) defining the qualifications that should ordinarily be required of any person to be appointed to
the teaching staff of the University haying regard to the branch of education in which he is
expected to give instructions;
(g) regulating the maintenance of standards and the coordination of work or facilities in
Universities.
48. By virtue of clause (e), the UGC can define the qualification that should ordinarily be
required of any person to be appointed to the teaching staff of the University and clause (g)
empowers the UGC in regulating the maintenance of standards and coordination of work or
facilities in Universities. The language is very widely used in above two clauses. The UGC
Regulations, 2000 clearly says in sub-clause (2) of clause (1) of Regulations, 2000 that the

regulations shall apply to every University established or incorporated by or under a Central Act,
Provincial Act or a State Act. As we have already noticed that the regulations are binding upon
the Universities as already held by the Hon'ble Supreme Court in the case of Osmania University
Teachers Association (supra) and this position is not disputed by any of the parties nor contrary
view has been taken by the learned Single Judge on this legal point.
49. The learned Single Judge heavily relied upon the observations of the judgment of the Hon'ble
Supreme Court delivered in the case of Dr. Rashmi Srivastava vs. Vikram University
(MANU/SC/0326/1995 : AIR 1995 SC 1694) and held that Hon'ble the Supreme Court laid
down that mere adoption of a scheme would not by itself create a new source of recruitment for
promotee Readers and Professors unless Section 49 of the M.P. Vishwavidhyalaya Adhiniyam
was suitably amended. The learned Single Judge quoted the para from the judgment of Dr.
Rashmi, which is as under:Statute 16 is also of no avail to the promotees for the simple reason that Statute 16 deals with
seniority of teachers of the University. This Statute is promulgated under Section 25(o) of the
Act. Section 35(o) deals with the mode of determining seniority for the purpose of the Act.
Consequently, it will have to be read with Section 49, meaning thereby when a Professor, Reader
or Lecturer is recruited under Section 49, how his seniority is to be determined can be decided in
the light of the relevant statute framed under Sec. 35(o). As merit promotee Reader or Professor
is outside the cadre there is no question of statute 16(2) operating in his case. It is also pertinent
to note that merit promotee Professors or Readers form a separate distinct class as compared to
directly recruited Professors or Readers. It is true that same Selection Committee which directly
recruits Professors and Readers under Section 49(2), deals with the question of granting merit
promotions to the concerned Lecturers as Readers and Readers as Professors. But that would not
by itself create a new source of recruitment for promotee Readers and Professors unless Section
49 was suitably amended.
50. It appears that the last lines of above portion of Dr. Rasmi Srivastava's case was taken into
consideration but the legal position is just otherwise. We found from the judgment of Dr. Rashmi
Srivastava that Hon'ble Supreme Court formulated the points for consideration in para 37 of the
judgment and which are as under:1) whether a merit promotee Reader or Professor as the case may be in the service of respondent
No. 1 university can be treated at par with directly recruited Reader or Professor for the purpose
of fixing their inter se seniority?
2) If the answer to the first point is in the negative whether such merit promotee Reader and
Professors cannot be considered as Professors and Readers for fixing inter se seniority of such
promotee Readers and Professors and their seniority should be shown only in the cadre of
Lecturer or Reader from which they are promoted?
3) Whether respondent No. 1 university is liable to pay any compensation to respondent No. 4 in
Civil Appeal No. 6002/94?

4) Whether the pay scales of Professors available to the appellants in C.A. No. 6002/94 should be
reduced?
5) What is final order?
51. From above points formulated by the Hon'ble Supreme Court, it is clear that in Dr. Rashmi
Srivastava's case, there was dispute with respect to the claim of inter se seniority between the
merit promotee Readers and Professors of University and this issue cropped up because of the
reason that in Vikram University of M.P. also, the University Grant Commission's CAS was
implemented and promotions were given to the University teachers under that scheme which
resulted into dispute between such promotee under scheme and Readers and Professors
appointed under relevant law framed for the University of M.P. In this judgment of Dr. Rashmi
Srivastava, Hon'ble the Supreme Court even after noticing that there is no provision in the Act or
Statute applicable to the said Vikram University giving opportunity of personal promotion and
there was promotion for merit promotion in the statutory provisions applicable to the said
University, the appointments of teachers on the post of Readers and Professors by way of
promotion as well as ex-cadre both the appointments; one by way of merit promotion as
provided under Section 49 of the M.P. Vishwavidhyalaya Adhiniyam and another under the
scheme framed by the UGC are valid, legal and permissible. So has been held even after noticing
that no amendments were made in the said Act applicable to the Vikram University. We would
like to quote para 46 which is relevant for the purpose of deciding this controversy and according
to us covers the entire issue and justifies the University action for providing promotional
opportunities by accepting the scheme of the UGC, which is as under:So far as this point is concerned we may note that the High Court by the impugned judgment has
taken the view in the last para of the judgment that the respondent university shall delete the
names of respondents Nos. 4 to 9 in M.P.I 180/89 and respondent No. 4 in M.P. 208/89, from
seniority list, A grave exception was taken by learned counsel for appellants to the aforesaid
direction. It was submitted that once the merit promotion scheme recommended by the
Commission was adopted by the respondent University and once the concerned incumbents were
promoted on merit as Reader or Professor as the case may be they were entitled to work as
Readers or Professors even assuming that they were ex cadre employees. Hence it cannot be said
that they should not be treated as Readers or Professors at all and their seniority should be shown
only in the lower cadre of Reader or Lecturer as the case may be from which they were promoted
on merit as Readers or Professors. In this connection they invited our attention to para 12 of the
judgment to the effect that it is clear from the scheme annexure P/4 that by virtue of promotion
under the said scheme, it is only the designation of the incumbent which is changed but in reality
he remains in the same lower cadre of either Reader or Lecturer as the case may be.
Consequently respondents 4 to 9 cannot be held to have been appointed by the University on
clear vacant posts of professors and their names cannot be include in the seniority list of
professors nor can they be considered senior to the petitioner. According to us no exception can
be taken to the last part of para No. 12, where it is observed that respondents 4 to 9 cannot be
held to have been appointed on clear vacant posts of Professors nor can they be included in the
seniority list of Professor nor can they be considered senior to the petitioner. But it must be
clarified at this stage that even though they may not be included in the seniority list of cadre

employees, namely, Professors or Readers it also cannot be held as assumed by the High Court
that their merit promotions were of no legal effect at all. In this connection, we must keep in
view the salient features of the merit promotion scheme. It cannot be disputed that with a view to
avoid stagnation amongst university teachers the Commission recommended a scheme of merit
promotion. The very preamble of the scheme shows that it is necessary to give reasonable
opportunity for career advancement and recognition of merits and it is on the basis of
competitive test for recognising outstanding work and merit that such merit promotions were
given. Once a Lecturer is promoted on merit as Reader or a Reader as Professor even though the
promotion may be personal to him he can certainly continue to work as promotee Reader or
Professor till he retires or otherwise ceases to be an employee of the university or till he is
reverted for some valid reasons. There is no question of such a merit promotee being reverted
otherwise to the lower cadre from which he came. He has to work as a Reader or Professor as the
case may be and share the work load with the cadre employees. In fact as there is no vacancy
created in the lower cadre from which he came on account of his promotion, he has also to share
the burden of work load of the lower post. Consequently it cannot be said that such a merit
promotee is not the Reader or Professor so far as his work as Reader or Professor is concerned.
He cannot claim to be fitted in the inter se seniority list and may remain outside the cadre of
Reader or Professor as the case may be. However, for all other purposes, like pay, work and
status he is a Reader or Professor as the case may be.
52. Therefore, whether there is any provision in the Act of 1974 or not for ex-cadre promotions,
if U.G.C. framed the Regulations for promotions and the University accepted these Regulations
which are binding upon the University, then ex-cadre promotion can be given by the University.
53. The University made appropriate amendment in Ordinance 317, obviously to make room for
ex-cadre post, which are not covered under the Act of 1974 following the regulations framed by
the UGC by exercising its Statutory powers under Section 26. Sub-clause (j) of Section 23 of the
Jai Narayan Vyas University Jodhpur Act, 1962 says that terms and conditions of service of
teachers of the University and other staff of University may be provided by the Ordinances and,
therefore, the Ordinances as amended has force of law. The learned Single Judge found that
Ordinance was not placed before the Senate and same is the argument of learned counsel Shri
M.C. Bhoot who supported the impugned judgment. It has been contended that procedure as
provided under Section 24 of the Act of 1962 has not been followed. According to learned
counsel Shri M.C. Bhoot, Ordinance can be made by the Syndicate but the Ordinance cannot
become law until it is considered and approved by the Senate and that too it must be in the next
meeting to the date of decision of the Syndicate to make Ordinance or to amend Ordinance. This
issue has been seriously contested by the counsel appearing for the private parties and the
counsel for the University. According to the learned counsel for the private parties assailing the
impugned judgment and the counsel for the University, the Ordinance becomes effective
forthwith with the approval of the Chancellor to the decision of the Syndicate and it is not
required to be placed before the Senate. It is submitted that only when any Ordinance is placed
before Senate only after approval of Chancellor and the Syndicate, if required, it can cancel the
Ordinance and the Senate also can do so with effect from the date of its decision and not
retrospectively.
54. We gave thoughtful consideration to the submissions of the learned counsel for the parties on

this contentious issue.

55. Section 24 as it exists today is as under:24(1) Ordinance shall be made by the Syndicate, but no such Ordinance shall take effect until it
has been approved by the Chancellor:
Provided that no Ordinance concerning admission to the University, or to its examinations,
courses of study, schemes of examination, attendance and appointment of examiners shall be
considered unless a draft of such Ordinance has been proposed by the Academic Council.
(2) The Syndicate shall not have power to amend any draft proposed by the Academic Council
under the proposed by the Academic Council under the provisions of sub-section (1), but may
reject it or return it to the Academic Council for reconsideration, either in whole or in part,
together with any amendments which the Syndicate may suggest:
Provided that no Ordinance affecting the income or expenditure of the University shall be made,
amended, repealed or added to, unless prior consent in writing of the State Government to the
draft of such Ordinance has been obtained.
(3) All Ordinances made by the Syndicate shall be submitted to the Senate, and shall be
considered by the Senate at its next meeting. The Senate shall have power, by a resolution passed
by a majority of not less than two-thirds of the members voting, to cancel any Ordinance made
by the Syndicate and such Ordinance shall from the date of such resolution be void.
56. The sequence in which provisions have been made in Section 24 of the Act of 1962, it is clear
that sub-clause (1) of Section 24 says that Ordinance shall be made by the Syndicate. Then says
that no such Ordinance shall take effect until it has been approved by the Chancellor. Sub-clause
(1) nowhere provides that the such Ordinance, before placing for approval of the Chancellor
shall be placed before the Senate or it can be approved by the Chancellor only after the approval
of the Senate. In the Universities in the State of Rajasthan, the Chancellor is His Excellency the
Governor of Rajasthan. It appears that in sub-section (1) of Section 24 of the Act of 1962, before
12th day of Feb, 1962, there were words in sub-section (1) of Section 24 "after considering the
view of Senate" but those words have been deleted by the amendment Act of 17 of 1962.
Therefore, before deletion of words "after considering the views of Senate" from sub-section (1)
of Section 24 of the Act of 1962, the Ordinance could have taken effect after view of the Senate
would have been obtained and only such Ordinance would have been approved by the
Chancellor. Therefore, after the deletion of the words "after considering the views of the Senate"
from sub-section (1) of Section 24 not only empowered the Syndicate in framing Ordinance but
also provides for Ordinance's taking effect from the date of approval of the Chancellor without it
going to Senate.
57. We have no hesitation in holding that sub-section (3) of Section 24 is not happily worded but,
at the same time, it is clear from the language used in sub-section (3) of Section 24 itself that first
part of this sub-section only says that all Ordinances made by the Syndicate shall be submitted to

the Senate, and shall be considered by the Senate at its next meeting. This language cannot mean
to say that unless Ordinance is placed before the Senate's first meeting and therein if Ordinance
is approved by the Senate then only it will be placed before the Chancellor for its approval.
Above view finds support from the language used in sub-section (1) of Section 24 as well as
from the second part of sub-section (3) of Section 24 of the Act of 1962 itself. Sub-section (1) of
Section 24 starts with the language "Ordinances shall be made by the Syndicate....". Therefore,
making of Ordinance can only be by the Syndicate. Then it cannot come in operation until it
(Ordinance) has been approved by the Chancellor. The second part of sub-section (3) of Section
24 says that the Senate shall have power, by a resolution passed by a majority of not less than
two-thirds of the members voting, to cancel any Ordinance made by the Syndicate and such
Ordinance shall from the date of such resolution be void." The sub-section (3) of the Section 24
is silent after saying that all Ordinances made by the Syndicate shall be submitted to the Senate,
and shall be considered by the Senate at its next meeting, but the second part says that the Senate
shall have power to cancel the resolution passed by a majority of not less than two-thirds of the
members voting. Therefore, even if Ordinance carried by the Syndicate and approved by the
Chancellor can be cancelled by the Senate as the Senate is the highest body in the hierarchy, as
made explicitly clear by subsection (1) of Section 24 of the Act of 1962 but that power to Senate
also has been given only to cancel the Ordinance from the date of resolution to be passed by not
less than two thirds of the members voting in the meeting of the Senate. The last portion of subsection (3) of Section 24 empowers the Senate to cancel the Ordinance from the date of Senates
resolution cancelling Ordinance. Holding it that Ordinance after framing by Syndicate will have
to be placed before Senate then there was no reason to provide that the "Ordinance shall from the
date of such resolution (of Senate) be void".
58. The above interpretation appears to be in consonance with the Section 16 of the Act of 1962.
The executive body of the University is Syndicate and Senate is Supreme authority of the
University as per sub-section (1) of Section 15. Therefore, power to make Ordinance has been
given to Universities' Executive body for becoming operative and effective and the Ordinances
made by the Syndicate after approval of the Chancellor, may become law, therefore, it has not
been provided under sub-section (3) of Section 24 that the Ordinance made by the Syndicate
shall be first submitted to the Senate and if it is approved by the Senate then will go to the
Chancellor for approval. This interpretation appears to be sound for the reasons that Senate is not
only supreme authority but the Chancellor is one of the members in Senate and, therefore, the
power has been given to Senate to cancel the Ordinance under subsection (3) of Section 24 as
that would be the decision of the Supreme Authority of the University who has all powers under
sub-section (1) of Section 15 of the Act of 1962 including power to review the acts of the
Syndicate.
59. It appears from the Scheme of 1962 that separate powers have been given to the Senate and
Syndicate with respect to framing of and enacting of statutory provision. The Senate has been
vested with powers to make Statute as provided under Section 22 and power to make Ordinance
has been given to the Syndicate under Section 24 of the Act of 1962. Sub-section (1) of Section
22 empowers the Senate to make new or additional Statute and amend or repeal existing Statute
as provided under Section 22. The Syndicate may also propose to the Senate the draft of any
Statute for acceptance and promulgation by the Senate as per sub-section (2) of Section 22. But

no similar provision like sub-section (2) of Section 22 of the Act of 1962 providing for proposing
Ordinance by Syndicate to Senate is provided under Section 24 which empowers only Syndicate
to make Ordinance. Similar language as has been used in sub-section (3) of Section 24 of the Act
1962 as has been used in sub-section (2) of Section 22 which provides that the Draft Statute
which may be proposed by the Syndicate "shall be considered by the Senate at its next meeting."
The purpose of using above phrase has been made clear in subsection (3) of Section 22 but
words "draft" is not used in Section 24 for Ordinance. Be it as it may be, under Section 24, no
such provision has been made as has been made under Section 22 requiring placing of draft
Ordinances before the Senate, whereas since power to make Statute vests in the Senate, the
Syndicate only proposes the draft Statute to the Senate for its acceptance, whereas for
Ordinances, it has been provided that "Ordinances shall be made by the Syndicate....". Therefore
also, we are of the view that the Ordinance made by the Syndicate can be placed for approval of
the Chancellor without placing it before the Senate and once the Ordinance becomes effective by
the approval by the Chancellor, it is required to be placed before the Senate for its consideration.
However, while considering the Ordinances, the Senate by virtue of power given under subsection (3) of Section 24 read with sub-section (1) of Section 24 of the Act of 1962, can cancel
any Ordinance made by the Syndicate and such cancelled Ordinance becomes void only from the
date of resolution of the Senate and before that it is valid law.
60. The learned Single Judge also considered the Statute 17 (the Statutes of University framed
under Section 22). The Statute 17(1)(a) and (b) provides that members of the teaching staff shall
consist of (a) servants of the University paid by the University and appointed by the Syndicate as
Professors, the Readers or Lecturers or otherwise as teachers of the University; or (b) persons
appointed by the Syndicate as honorary Professors, Readers or Lecturers or otherwise as teachers
of the University. From Statute 17(1) (a) and (b) itself it is clear that the University can consist
for not only Professors, Readers or Lecturers but there may be other category of persons which is
clear from the words "or otherwise as teachers of the University" used in both sub-clauses (a)
and (b) of sub-section (1) of Statute 17 of the Statutes of the appellant-University. Therefore, the
Statute having force of law which permits appointment of persons as the teachers by any name
and we have already noticed that as per the definition of teacher given in sub-clause (ix) of
subsection (1) of Section 2 of the Act of 1974, teacher includes Professor, Reader or a Lecturer.
The Reader and Professor, if appointed under the Regulations, 2000 of UGC(CAS) then they can
certainly fall in the category of servants of the University paid by the University and to be
appointed by the Syndicate in the category of "otherwise as teachers of the University".
61. Giving power to the University to frame Ordinances by Section 24 of the Act of 1962 is also
in consonance with sub-section (2) of Statute 5 which provides that Syndicate shall have the
powers to appoint Professors, Readers, Lecturers and other members of the teaching staff. This
power has not been made subject to control of the Senate and, therefore, sub-clause (2) has been
separately framed and Syndicate has been made subject to the control of Senate in the matter to
manage and administer the revenue and property of the University and the conduct of all
administrative affairs of the University not otherwise provided for, which is clear from subclause (1) of Statute 5 of the Statutes. From the complete scheme as framed in the Act of 1962,
Act of 1974 and amendments made therein and from the Statute, it is clear that the Syndicate
alone has power to make Ordinances with right to Senate to cancel the Ordinances made by the

Syndicate. In view of the above reasons also, the judgments impugned laying down that there
cannot be other post of Professor and Reader and in the name of Professor (promotion) and
Reader (promotion), is contrary to Statute 17(1)(a) and (b) of the Statute of the appellant
University.
62. In the present case, it is not in dispute that amendment in the Ordinance 317 was made by the
Syndicate and was placed before the Chancellor His Excellency Governor of Rajasthan, who in
turn granted its approval which has been conveyed vide letter dated 9.7.2001. Therefore, the
amendment made in Ordinance is valid and legal as it has not been cancelled by the Senate.
63. We also perused the reasons given by the learned Single Judge delivered in the case of Dr.
A.K. Gupta vs. State of Rajasthan & others (S.B. Civil Writ Petition No. 4021/2001) decided on
18.12.2002 wherein the learned Single Judge held that "thus, amended Ordinance 317 is not
considered to be a proper expression of legitimate powers which were required to be exercised."
The learned Single Judge noticed that by amendment of Ordinance 317 of Reader (Promotion)
and Professor (Promotion) have been incorporated but cadre and nomenclature of the teacher is
not provided under Ordinance 317 and relevant Act has not been amended by the University, and
in isolation, Ordinance 317 has been amended. While considering this aspect of the matter, the
learned Single Judge observed that the UGC in its letter dated 4.7.2000 nowhere mentioned that
there was any consultation with the Government and thus the CAS as conceived by the Ministry
of Human Resource Development, Govt. of India has not been framed as required under the
orders of the Central Government. But from clause (j) of Section 23, we find that terms and
conditions of service of teachers of University can be provided by enacting Ordinance or by
making provision in Ordinance by amendment of Ordinance. We also do not find any material on
record on the basis of which we can find support for such plea that UGC has made the
Regulation, 2000 without following the procedure of law. Here in this case, admittedly, none of
the party challenged the scheme, authority and power of the UGC in framing the Regulations,
2000.
64. The learned Single Judge also observed that what would be the status of promotee teachers
obviously under the CAS vis-a-vis the regularly selected teachers, will be a big question and
likely to give rise to further confusion. These observations do not appear correct when viewed in
the light of the decision of the Hon'ble Supreme Court delivered in the case of Dr. Rashmi
Srivastava in which precisely this issue has been considered by the Hon'ble Supreme Court and it
has been held that even if there is no provision in the State Act for ex-cadre post, ex-cadre
promotion can be given by the University and two promotions can co-exist.
65. At this juncture we may again recapitulate that in S.B. Civil Writ Petition No. 4021/01
preferred by A.K. Gupta, the petitioner's stand is that CAS was required to be implemented by all
the Universities. However, his contention was that each University was required to frame its
statutory regulations, rules for giving effect to the CAS. On earlier occasion, the University
framed rules for giving effect to the CAS which came into force w.e.f. 1.1.1986. Copy of the said
rules annexed in the writ petition as Annex. 1 reveals that Syndicate vide resolution dated
11.12.1989 and confirmed by Syndicate itself vide resolution dated 29.4.1990 framed the rules
for implementing CAS for teachers at the level of Asst. Professor (Lecturer) in the University,

Therefore, according to the petitioner himself, the Syndicate had power to frame rules. In the Act
of 1962, words "Statue, Ordinances and Regulations" have been used and indisputably the
Ordinance 317 was amended wherein the post of Reader (Promotion) and Professor (Promotion)
have been referred and included. It is apparent from Annex. 1 that said rules were given effect to
and implemented and followed. The learned Single Judge held that the cause of action arose to
the petitioner A.K. Gupta in the year 1998. On that day, he was required to raise the question of
his non-consideration. Having not done so at the relevant time when rights of the petitioner
became mature, the petitioner has made himself liable to be shut on the grounds of delay and
laches. Rejecting petitioner's petition on this ground, the learned Single Judge proceeded to
examine the validity of Ordinance 317. We do not find any justification for examining the
validity of Ordinance 317 by the learned Single Judge when it had been held that the petitioner
was not entitled for any relief on the ground of delay and laches , However, we have considered
the issue in detail and even after considering the arguments of learned counsel Shri M.C. Bhoot,
we found no illegality in the action of University so far as acceptance and implementation of
C.A.S. for giving promotions to the eligible candidates and in making Ordinance 317.
66. One of the arguments advanced by the learned counsel Shri M.C. Bhoot was that the
Ordinance 317 has not been published in the gazette and, therefore, it has not taken the shape of
law. However, no specific provision has been pointed out by the learned counsel which requires
publication of the Ordinance in the gazette. Be it as it may be. The learned counsels contesting
the issue, obviously for the University and other counsels, submitted that even if the Ordinance
317 has not been published in the gazette as amended, even then it became effective by virtue of
subsection (1) of Section 24, the provision which we have already discussed in detail above,
wherein it has been provided that Ordinance shall take effect from the date of approval granted
by the Chancellor. On this issue, we are benefited by the judgment of the Hon'ble Supreme Court
delivered in the case of Sant Ram Sharma vs. State of Rajasthan and others
(MANU/SC/0330/1967 : AIR 1967 SC 1910) wherein a question was posed before the Hon'ble
Supreme Court that if the executive council is held to have power to make appointment and laid
down conditions of service without making rules in that behalf under proviso to Article 309,
there will be violation of Articles 14 and 16 of the Constitution because appointment would be
arbitrary and capricious. Hon'ble the Supreme Court held that "in our view, there is no substance
in this contention of the petitioner. If the State Government had considered the case of the
petitioner along with other candidates before appointment to the selection posts, there would be
no breach of provisions of Articles 14 and 16 of the Constitution of India because every one who
was eligible in view of the conditions of service and was entitled to consideration, was actually
considered before promotion to those selection posts were actually made." In the above Sant
Ram's case, Hon'ble Supreme Court held that even administrative practice can be followed till
statutory rules governing promotions are framed by the Government. Meaning thereby, even
administrative instructions can be issued regarding principles to be followed for appointment.
From the writ petitions we found that none of the candidate's contention is that his case has not
been considered and that was because of the reason that the respondent-University or the UGC
framed the Regulations, 2000 (CAS Scheme) or University made the Ordinance 317 which
denied the consideration of the petitioner's case for promotion. Therefore, even if the Ordinance
317 which as such may not have been required to be published in the gazette as not provided
specifically by the statutory provision and even if so would have been just, proper or even

necessary, even then there is no fact situation before this Court on the basis of which we can hold
that the action of the respondent-University violated the principles of equality or is in violation to
the Articles 14 and 16 of the Constitution of India.
67. In the case of Dhananjay Malik and others vs. State of Uttranchal and others
(MANU/SC/7287/2008 : (2008) 4 SCC 171), Hon'ble the Apex Court held that administrative
instructions can fill up the gap between statutory rules, obviously if they are not in conflict with
any statutory provision and we have already observed that there is no statutory provision or other
provision in conflict with Ordinance 317, The case of Sant Ram (supra) was again approved by
the Hon'ble Supreme Court in the case of Union of India vs. K.P. Joseph (MANU/SC/0610/1972
: (1973) 1 SCC 194) and in the case of Dhananjay Mali (supra). In view of the above, we do
not find any force in the submission of the learned counsel Shri M.C. Bhoot that because of the
non-publication of the Ordinance 317 in the gazette, the entire CAS Scheme or process of
promotion under the same scheme can be quashed.
68. The learned counsel Shri M.C. Bhoot vehemently submitted that the respondent-University
preferred D.B. Civil Special Appeal No. 114/03 to challenge the judgment of the learned Single
Judge delivered in S.B. Civil Writ Petition No. 3504/2001 dated 17.1.2003 wherein identical
issues were involved and said D.B. Civil Special Appeal No. 114/2003 though heard along with
these appeals but the said D.B. Civil Special Appeal No. 114/03 was withdrawn on 24.5.2006,
therefore, the University has accepted the legal position as laid down in the impugned judgments
and, therefore, the University cannot challenge the judgment passed in other writ petition which
have been challenged in these appeals.
69. Firstly, withdrawal of D.B. Special Appeal No. 114/2003 by the appellant-University cannot
take away the right of other appellants who have challenged the basic judgment wherein the
questions of law have been decided by the learned Single Judge. Secondly, the plea of estoppel
cannot be raised against the question of law. Thirdly, the judgment delivered in the case of S.B.
Civil Writ Petition No. 3505/2001 - Dr. R.K. Genthey & ore, vs. State is a judgment of dismissal
of the writ petition and no relief has been granted in favour of the petitioner by the Single Bench,
therefore, the issue in D.B. Civil Special Appeal No. 114/2003 was more of academic nature and
University did withdraw that Special Appeal keeping challenge to basic judgment by seriously
pressing other appeals. We have perused the judgment delivered in S.B. Civil Writ Petition No.
3505/2001 dated 17.1.2003. The learned Single Judge disposed of the S.B. Civil Writ Petition
No. 3505/01 vide judgment dated 17.1.2003 after observing that Ordinance 317, as framed by the
appellant-University, has been declared ultra vires and has been quashed, obviously, not in the
S.B. Civil Writ Petition No. 3505/01 but in the judgment which we have considered in this
judgment, therefore, the basic order is impugned in these appeals and the judgment in S.B. Civil
Writ Petition No. 3505/01 itself has not decided the validity of Ordinance 317. The learned
Single Judge in the judgment dated 17.1.2003, at page 25, after considering the selections dated
8.9.2001 and passing of the Ordinance on 7.9.2001 observed that "the Ordinance 317 having
already been declared null and void, the effect of this argument will be unnecessary."
Substantially, the judgment in S.B. Civil Writ Petition No. 3505/01 itself has not decided any
issue. In that situation, the withdrawal of D.B. Civil Special Appeal No. 114/03 by the
respondent-University neither can debar the University from challenging the basic judgment

rendered by the learned Single Judge in other cases nor can debar the private parties from
challenging the judgment who have not withdrawn any challenge to the basic judgment deciding
the legal issue. Further more, by judgment dated 17.1.2003 rendered in S.B. Civil Writ Petition
No. 3505.01, the learned Single Judge has in fact dismissed the writ petition of the petitioner and
refused to pass any direction in favour of the petitioner, obviously against the respondent and
held that while considering the all issues by the State Government, the State Government may
consider the case of the petitioner also if found expedient, the claim of the petitioners may be
gone into. Therefore, the challenge to such innocuous direction if has been withdrawn by the
University, it cannot debar the University from agitating the issue which they agitated in these
appeals. Therefore, also we do not find any substance in the argument of the learned counsel Shri
M.C. Bhoot. In the result, we conclude as under:(I) In view of the reasons above, D.B. Civil Special Appeal (Writ) No. 312/2006-Fateh Kishan
Kapil vs. Jai Narayan Vyas University, Jodhpur & ors. and D.B. Civil Special Appeal No.
663/2002-Jai Narayan Vyas University, Jodhpur vs. the State & ors. are partly allowed and the
judgment delivered in S.B. Civil Writ Petition No. 3451/2001 is set aside, particularly as we do
not agree with the decision of the learned Single Judge so far holding that the exercise of
promotion in the name of Career Advancement Scheme is without jurisdiction and the whole
process of promotion under the Career Advancement Scheme as undertaken by the University is
illegal, Since the case of the petitioner-Fateh Kishan Kapil on merit has not been considered by
the learned Single Judge so as to decide the claim of the petitioner on the basis of his
qualification which he claims to be equivalent to the P.H.D. etc., therefore, that claim is required
to be adjudicated by the learned Single Judge and the questions whether the petitioner's claim is
covered by point no. 2.5.0 or the present controversy is with respect to the promotion as provided
in clause 2.0.0 and whether the petitioner has been discriminated in the process of selection
under the scheme known as Career Advancement Scheme, are required to be decided according
to the claim of the petitioner and as contested by the respondent-University but by the Single
Bench. Therefore, S.B. Civil Writ Petition No. 3451/2001 is remanded to the learned Single
Bench.
(II) D.B. Civil Special Appeal (Writ) No. 65/2003-Jai Narayan Vyas University, Jodhpur vs. Dr.
A.K. Gupta preferred by the appellant-University and D.B. Civil Special Appeal (Writ) No.
153/2003 preferred by Dr. R.P. Tripathi are against the judgment of the learned Single Judge
delivered in S.B. Civil Writ Petition No. 4021/2001 preferred by Dr. A.K. Gupta. The learned
Single Judge dismissed the writ petition preferred by Dr. A.K. Gupta holding that the petitioner's
claim is for his consideration for promotion in terms of the Scheme of 1990 and the cause of
action accrued in the year 1998 and the petition is liable to be dismissed on the grounds of laches
and delay. It appears that the appellant-University has preferred appeal even after dismissal of
writ petition No. 4021/2001 by the Single Bench holding that the petitioner is not entitled to any
relief; some observations have been made by the learned Single Judge including there are
references of having not been ex-cadre post in the Act of 1974 and the learned Single Judge
observed that Ordinance 317 is not in proper express legislative power, therefore, has challenged
the judgment. Dr. R.P. Tripathi challenged the above same judgment delivered in Dr. A.K.
Gupta's writ as because of said judgment his appointment/promotion was affected. We are of the
view that so far as the dismissal of the writ petition of the petitioner is concerned, that dismissal

is not under challenge either by the appellant University or by Dr. R.P. Tripathi in D.B. Civil
Special Appeal Nos. 65/2003 and 153/2003, All the observations made by the learned Single
Judge, after holding that the petition is liable to be dismissed, cannot come in the way of the
appellant-University and particularly, those observations which run contrary to this judgment. At
this juncture, it will be relevant to mention that the learned Single Judge in impugned judgment
(delivered in S.B. Civil Writ Petition No. 4021/2001) at page 36 held that University's earlier
regulations, i.e. Regulations of 1998 stand repealed, therefore, we are of the view that the
Regulations of UGC of 2000 and Ordinance 317 hold the field. Therefore, D.B. Civil Special
Appeal (Writ) No. 65/2003 is allowed to the extent that such part of the impugned judgment
dated 18.12.2002, which runs contrary to this judgment is set aside. However, S.B. Civil Writ
Petition No. 4021/01 shall stand dismissed. In view of the above reason D.B. Civil Special
Appeal(Writ) No. 153/2003 has become infructuous and the same is hereby dismissed.
(III) In the case of S.B. Civil Writ Petition No. 4314/01-Miss Prabha Bhandari vs. Jai Narayan
Vyas University, Jodhpur & ors., the learned Single Judge allowed the writ petition on the ground
that the respondent no. 4-Vice Chancellor of the respondent-University incurred the
disqualification under Section 6 of the Act of 1974 and could not have been Chairman of the
Selection Committee and accepted the petitioner's allegation of the bias against respondent no. 4
and held that the allegation of bias is enough to vitiate the entire process of selection in Political
Science. Since the learned counsels did not argue on merit of the claim of the petitioner in S.B.
Civil Writ Petition No. 4314/2004 before us, obviously for the reasons that if other points
decided by the learned Single Jude going to the root of the matter are upheld by the Division
Bench (by us), then the petitioner-Prabha Bhandari may not succeed in her petition. In view of
the reason that D.B. Civil Special Appeal (Writ) No. 632/02 which has not been heard by us on
merits of the case of the petitioner, therefore, now it may be listed for hearing on its merit before
the Division Bench.
(IV) D.B. Civil Special Appeal (Writ) No. 66/2003 has been preferred by the appellantUniversity to challenge the judgment of the learned Single Judge dated 21.12.2002 delivered in
S.B. Civil Writ Petition No. 3704/2001, whereas the writ petitioner Anil Pathak also has
preferred D.B. Civil Special Appeal No. 313/06 to challenge the same judgment by which the
appellant Anil Pathak's writ petition was disposed of by the learned Single Judge denying the
relief to the writ petitioner. For the reasons forgoing, the decision of the learned Single Judge so
far holding that the exercise of promotion in the name of Career Advancement Scheme is without
jurisdiction and the whole process of promotion under the Career Advancement Scheme as
undertaken by the University is illegal, is set aside. There are several other observations made
against the working of the appellant-University and the directions have been given to the State
Government to consider the points as given in the last para of the judgment which are only
suggestions of the Court to the State Government. The observations made by the learned Single
Judge are only observations and, therefore, we do not find that those observations are required to
be addressed by us because the University can certainly take the benefit from the observations, if
the University finds it to be a good advise to them. So far as the personal merit in the claim of the
petitioner for promotion is concerned, that has also not been addressed to this Bench during
arguments, therefore, on merits of the case in D.B. Special Appeal No. 66/2003 and D.B. Civil

Special Appeal No. 313/2006, the matters be listed for hearing before the Division Bench.
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