JUDGMENT
R.L. Anand, J.
1. Shri M.S. Yadav is a lecturer in Physical Education in M.L.R. Saraswati College of Education, Charkhi Dadri, District Bhiwani and he has filed the present writ petition under Articles 226 and 227 of the Constitution of India against the State of Haryana (respondent No. 1), the Director, Higher Education (respondent No. 2), M.D. University, Rohtak (respondent No. 3), M.L.R. Saraswati College of Education Charkhi Dadri, through its President (respondent No. 4) and Smt. Sushila Kumari Hooda, Principal of the said institution and the writ has been filed in the nature of quo warranto with a prayer that respondent No. 5 be asked under what authority of law she is holding the post of Principal and if the High Court comes to the conclusion that respondent No. 5 is lacking the qualification and experience, her appointment to the post of Principal be declared as null and void.
2. The case set up by the petitioner is that on 22.4.1994 an advertisement was issued for the post of a Principal for B.Ed. College as per the qualification prescribed by the UGC/M.D. University and Haryana Government. Respondent No. 5 Smt. Sushila Kumari Hooda applied for the said post along with other candidates on 25.4.1994. According to the petitioner, re-spondent No. 5 completed her M.Ed. in between 1988-
89 and more precisely on 20.9.1998 and she was also a student of M.Phil, from M.D. University w.e.f. July 1988 to June 1989.
3. Respondent No. 5 was not fulfilling the requisite qualification for the post of the Principal because she was more than 35 years of age, whereas as per Rule 4 of Haryana Affiliated Colleges (Security of Service) Rules, 1993, the age should be between 18 and 35 years. Moreover, respondent No. 5 produced her experience certificate dated 8.1.1994. The interview was conducted on 15.12.1994. The other candidates, who appeared along with respondent No. 5, had the qualifications of M.Phil, and Ph.D. but the Selection Committee recommended the name of respondent No. 5 though the nominee of respondent No. 2 gave his dissent, but inspite of that respondent No. 5 was selected. On 15.12.1994 respondent No. 5 joined service in response to her appointment letter. A complaint was made to respondent No. 2 to the effect that in one time respondent No. 5 was serving as a Lecturer in a College of Sidhrawali and in Bhiwani and during the same period, she had joined the classes of M.Phil, at Rohtak. Under the University regulations, a person who is serving in college or University cannot join the classes of M.Phil, because the M.Phil, course is to be allowed as a regular student for the full time. As is evident from the regulation contained in Chapter XV of Volume III of the University Calendar which lays down that no whole time teacher shall be allowed to join as a regular student for a whole time course/programme leading to a degree except a Ph.D. Degree/D.Sc. De-gree/D.Lit Degree, unless he/she proceeds on long leave for the duration of the course/programme.” On the basis of the complaint, respondent No. 2 inquired into the matter and submitted a report and it was found that the selection of respondent No. 5 for M.Phil. Course under UGC fellowship scheme was not fair. Respondent No. 2 also wrote a letter to the Principal of R.L. Education, College, Sidhrawali for the recovery of the amount for the period during which respondent No. 5 appeared in the classes of the M.Phil. Thus, the short ground taken up by the petitioner for setting aside the appointment of respondent No. 5 is that she was over-age for the post on the date of her appointment and also on the date of her application and, secondly, she was not having the requisite experience on the day of her joining the service as Principal.
4. Notice of the writ petition was given to the respondents. The writ petition wasjnainly contested by respondent No. 5 but written statement was also filed by respondent Nos. 1 and 2. According to respondent Nos. 1 and 2, respondent No. 5 was appointed as Principal by the Managing Committee of the College as per rules and she was given appointment vide letter dated 15.12.1994. The petitioner was not a candidate at the time of the selection. So, the writ petition filed by the petitioner Shri M.S. Yadav is not maintainable at all. No legal right/fundamental right of the petitioner has been infringed. Not only this, petitioner is challenging the appointment of the Principal at such a belated
stage, i.e. after a gap of more than 6 years. On this ground, the writ petition is liable to be dismissed. Respondent No. 5 was appointed as Principal by the Managing Committee on the recommendation of the duly constituted selection committee as per the provisions of Haryana Affiliated Colleges (Security of Service) Rules, 1993 and her appointment was also approved by the M.D. University, Rohtak. There was no irregularity in her appointment as Principal and, as such, no cause of action has arisen to the petitioner. It was also stated by respondent Nos. 1 and 2 that respondent No. 5 earlier worked as Lecturer from 10.10.1988 to 14.12.1988 at K.M. College of Education, Bhiwani and from 15.12.1988 to June, 1989 at RLS College of Education, Sidhrawali. She was doing M.Phil, working as Lecturer in the above period. A complaint was received in this regard and on receipt of the complaint, an inquiry was conducted and she was found guilty of doing service while being a student of M.Phil. The University was requested to take further action as per rules. Moreover, the Director of Higher Education, Haryana asked the Principal to effect recovery from Smt. Sushila Kumari Hooda the then Lecturer for the period from 15.12.1988 to June, 1989. However, the matter was reconsidered and inquiry was conducted again in the matter by an officer of the answering respondent. Inquiry has already been completed and the case has been sent to the Government for taking a final decision in the matter. On the other hand, the defence/respondent Nos. 1 and 2 prayed for the dismissal of the writ petition.
5. Respondent No. 5 Smt. Sushila Kumari filed a separate written statement and she took a preliminary objection of delay and laches by stating that she was appointed as Principal on 15.12.1994, whereas the present writ petition has been filed in the year 2000 after a lapse of six years. Therefore, it is liable to be dismissed on the ground of being highly belated. It was also submitted by respondent No. 5 that the present writ petition has been filed at the instance of Ram Kishan Gupta, the President of the Governing Body of the College because answering respondent was illegally terminated at his instance. She filed an appeal before the Director, Higher Education and vide order dated 12.1.1998, the termination orders were set aside. Resultantly, the Management filed a writ petition in the High Court. The same was dismissed on 19.8.1999. Even an SLP filed by the Management was dismissed by the Hon’ble Supreme Court. When Shri Ram Kishan Gupta failed upto the Hon’ble Supreme Court, he also illegally suspended respondent No. 5 on 1.10.1999. This suspension order was again challenged by respondent No. 5. Thus, thereafter the suspension order was withdrawn. Now, again at the instance of Shri Ram Kishan Gupta, the present writ petition has been filed by Shri M.S. Yadav. The present petitioner is a stooge in the hands of Shri Ram Kishan Gupta. The writ petition is not bona fide and, therefore, the provisions of Articles 226 and 227 should not be invoked in this case.
6. On merits, the challenge of respondent No. 5 is that she was doing M.Phil, in the session 1988-89 and during that period also, the answering respondent was a Lecturer. M.Phil, is two semester course. The first semester started from July to November and examinations were held in the month of December. The answering respondent joined service on 10.10.1988 when most of the classes of the first semester were over. Apart from that the Principal of the College had adjusted the period in such a manner so that the answering respondent could attend the classes. As far as the second semester of M.Phil. was concerned which relates to dissertation and in dissertation based paper, no regular attendance is required. The matter goes on between the student and the guide and no study leave etc. is required for completion of the second semester. Moreover, on the completion of the inquiry the matter was thoroughly examined by the Director, Higher Education and the complaint was filed. It was also submitted by respondent No. 5 that initial qualification prescribed by the Government upto 35 years was arbitrary one. The Government realised this mistake and granted relaxation in age and a letter in this regard was also issued by the Government. The University also granted age relaxation. In view of this factual position, the answering respondent was duly eligible in view of the relaxation granted by the University as well as by the Government. Respondent No. 5 submitted that she was Ph.D and she was placed at selection No. 1 on account of her merit. According to the Government instructions, if a candidate is studying a particular course at the time of joining the service, he/she should be allowed to complete the said course without the necessity of having obtained any permission. The so-called complaint was thoroughly examined by the Director, Higher Education and he submitted his report to the Government. Thus, with this background respondent No. 5 submitted that she had the requisite experience as well as the age, therefore, her appointment to the post of Principal was within rules.
7. In support of his case, the petitioner has placed on record Annexure P-l the application submitted by respondent No. 5; Annexure P-2 a copy of the result-card of respondent No. 5 for the post of M.Phil.; Annexure P-3 the instructions dated 3.11.1987 regarding the revised qualifications; Annexure P-4 the certificate issued by R.L.S. College of Education Sidhrawali (Gur-gaon) with regard to the experience of respondent No. 5; Annexure P-5 the proceedings of the Selection Committee; Annexure P-6 a. copy of the appointment letter; Annexure P-7 a copy of the letter dated 2.8.1994 issued by the Director, Higher Education, Haryana to the Vice Chancellor M.D. University, Rohtak in which it has been observed that the selection of Smt. Sushila Hooda under UGC fellowship scheme was not fair. A copy of the letter Annexure P-8 vide which the Director ordered the principal to effect recovery of the salary for the period from 15.12.1988 to 66/1989 during which respondent No. 5 was busy in passing her M.Phil. Examination. Annexure P-9 is a copy of letter dated 23.10.1997 issued in the name of the President,
Governing Body, M.L.R.S. College of Education, Charkhi Dadri requesting him for the recovery of the pay and allowances given to respondent No. 5 when she was doing the M.Phil, course.
8. From the side of respondent Nos. 1 and 2 reliance has been placed upon the documents Annexure R-1 the letter dated 4.1.1995 bearing Memo No. 22/7/91-Edu. 1(2) vide which the Government asked the Principal to recover 95% of the grant for salary paid from 15th December, 1988 till date from Mrs. Sushila Hooda and the same may be deposited in the Government Treasury.
9. Respondent No. 5 placed on record a copy of the application dated 12.10.1994 in which she stated her date of birth as 2.12,1952 and she also stated that she had the requisite experience of six years. She has given the break-up of her experience by stating that she worked as Lecturer in education at K.M. College of Education, Bhiwani from 10.10.1988 to 14.12.1988 and further she worked as Lecturer in education at R.L.S. College of Education since 15.12.1988 to date. Reliance was also placed by respondent No. 5 on the document Annexure R-5/2 dated 23.8.1994 i.e. prior to the date of appointment vide which the experience of service has been modified and it was laid down by the Government that the teaching experience of six years was required in a recognised college or University out of which teaching experience of at least five years should be in recognised college of Education or the Department of Education of a University. Annexure R-5/3 is the letter of the Government vide which the Government took a decision for the relaxation of age limit and the embargo of 35 years as an upper age limit was removed. Annexure R-5/4 is the letter issued by the University dated 22nd March, 1995 vide which the decision of the Government was approved and adopted. Annexure R-5/5 are the instructions dated 18.7.1972 vide which the Government gave the directions that those regular employees who had already permitted to join a particular course of study, or who were studying for a particular course at the time they joined government service, should be allowed to complete that course, without the necessity of having obtained any permission. Annexure R-5/6 is an important document for respondent No. 5 issued by the Director Higher Education, Haryana to the Financial Commissioner and Secretary to Government Haryana, Education Department dated 28.12.1998 vide which it was requested to reconsider the entire matter because respondent No. 5’s appointment was not illegal.
10. I have heard Shri R.A. Sheoran on behalf of the petitioner, Ms. Geeta Mathuria, Assistant Advocate General, on behalf of respondent Nos. 1 and 2, Shri S.K. Sharma on behalf of respondent No. 4 and Shri R.K. Malik on behalf of respondent No. 5 and with their assistance, have gone through the records of the case, and I am of the considered opinion that this writ petition must fail not only on merits which I will discuss in the subsequent portion of this judgment, but
also on the ground of delay, laches and mala fides.
11. Admittedly, respondent No. 5 was appointed as Principal in the year 1994. The present writ petition was filed in the year 2000 after a lapse of six years. The cause of action, if any, arose to the petitioner and to the candidates who appeared along with the respondent No. 5, on 15th/16th December, 1994. Had the suit was filed against respondent No. 5 for declaration, the limitation would have been three years. In these circumstances, I am of the opinion that extraordinary remedy under Articles 226 and 227 of the Constitution of India should not be invoked against respondent No. 5 after a lapse of six years.
12. This writ petition also deserves dismissal on the ground of locus standi. Shri M.S. Yadav never appeared for the post of Principal. He is a stooge in the hands of Shri Ram Kishan Gupta who had instigated the present petitioner to file the present writ petition in the shape of quo warranto. It is alleged by respondent No. 5 in her written statement that her relations with Shri Ram Kishan Gupta were not cordial. He was the President of the Governing Body of the College. Earlier he terminated her services. The order of termination of respondent No. 5 was set aside on 12.1.1998. The Managing Committee filed a writ petition in the High Court which was dismissed. He again filed an SLP in the Hon’ble Supreme Court which was also dismissed. Not only this, respondent No. 5 was put under suspension on 1.10.1999 and when she challenged the suspension in the High Court, the suspension order was withdrawn. Thus, mala fides are discernible and writ large on the part of Shri Ram Kishan Gupta who is out and out to ensure that respondent No. 5 should not remain as Principal of the College. By concealing his identity, he has put up Shri M.S. Yadav, who is a Lecturer in Physical Education in the College. On this ground alone when the petitioner is approaching with a mala fide intention in the High Court, the writ petition deserves to be dismissed.
13. Be that as it may, now I will examine whether the appointment of Smt. Sushila Kumari Hooda to the post of Principal is illegal and against the rules or not. I had already stated in the earlier portion of this judgment that the challenge of the petitioner to the appointment of respondent No. 5 is on two grounds. Firstly on the ground of age and, secondly on the ground of experience. The petitioner was relying upon Rule 4 of the Haryana Affiliated Colleges (Security of Services) Rules, 1993 which lays down as follows :-
“No person shall be appointed to the service by direct recruitment who is less than 18 years of age and more than 35 years of age on or before the last date of submission of application to the Managing Committee. The age of superannuation will be 60 years.”
14. Along with this rule, I would like to make a mention with regard to the qualification for the post of Principal which has been given in Annexure P-3. According to sub-paras (B) of the letter Annexure P-3, “a candidate is eligible for the post of Principal if he/she
has M.Phil, degree or a recognised degree beyond the Master’s level or published work indicating the capacity of a candidate for independent research work. Provided that if a candidate possessing the qualifications as at (B) is not available or not considered suitable, the college on the recommendation of the Selection Committee may appoint a person possessing the qualification as at (a) mentioned in this letter. According to clause (c) of this letter “a candidate requires at least ten years teaching experience in recognised College (A) of the University of other institution of similar standing, out of which at least five years teaching experience must be in a recognised college of education or the Department of Education of (sic) University persons with some administrative experience in Educational Institutions will be preferred.” So far as education qualification was concerned, it was not possible for anybody to achieve that qualification and experience in an age of 35 years. This age of 35 years prescribed, was an arbitrary one and, therefore, the Government had to reconsider this matter and issued a letter dated 9th January, 1995, which runs as follows :-
“The matter regarding relaxation in upper age limit provided in Rule 4 of the Haryana Affiliated Colleges (Security of Service) Rules, 1993 for re-cruitment to the service in these colleges has been under consideration of the Government as there was no upper age limit before the notification of these rules. After careful consideration, Government in pursuance of Rule 26 of the Haryana Affiliated Colleges (Security of Service) Rules, 1993, have taken a decision to relax the provision of upper age limit 35 years prescribed in Rule 4 of these rules for appointment to the various posts in the service.”
15. The University also followed the same and also adopted relaxation in the condition of upper age. In this regard, reference may be made to Annexure R-5/4 which runs as follows :
“In continuation of this office circular No. CB-II/94/1991 -2041 dated 19.4.1994,1 am desired to inform you that the Executive Council of the University vide reso. No. 63 of its meeting dated 18.2.1995 has adopted the relaxation in the condition of upper age limit as given in Haryana Financial Commissioner and Secretary Education letter No. 23/9/85.Edu. 1(2) dated 9.1.1995 in place of clause 4 or Part-II of Services Rules, 1993.
16. In the meeting held on 30.7.1994, the maximum eligibility qualifications for the post of Principal of a Non-Govt. College of Education were amended and the following qualifications were laid down :
(a) Ph.D.
(b) A consistently good academic record with at least high second class (55% marks or B+) grade M.As. Education, with B.Ed. (Second Class with at least 50% marks in theory and practical separately).
Or
Master’s degree in any subject with M.Ed. (55% marks in one Postgrduate degree and 50% marks in the other)
(c) Teaching experience of at least 6 years in a recognised college or University out of which teaching experience of at least five years should be in recognised college of Education or the Department or Education of a University.
Persons with some administrative experience in Educational Institution will be preferred.
(d) Knowledge of Hindi upto Matric or its equivalent.”
Thus, by virtue of Annexure R-5/2, the teaching experience of six years was enough in a recpgniseo college or University. However, out of this six years, teaching experience of at least five years was required in a recognised college or Department of Education or University.
17. Now it is to be seen whether the contentions raised by the learned Counsel for the petitioner have any valid premises so as to dislodge respondent No. 5. I have highlighted by making a reference to the documents that the criteria of age up to 35 years has been relaxed by the Government itself because it was arbitrary and otherwise also, it was not possible up to the age of 35 years to achieve such an experience and qualification so as to become eligible to the post of Principal. The qualification of six years experience was required in order to become eligible for the post of Principal. In the application Annexure R-5/1, respondent No. 5 had stated that she worked as Lecturer in education at K.M. College of Education, Bhiwani from 10.10.1988 to 14.12.1988 and she worked as Lecturer in Education at R.L.S. College of Education since 15.12.1988 to date. She moved an application dated 12th October, 1994. Thus, if her experience is counted from 10th October, 1988 to 12th October, 1994 it comes to 6 years and 2 days within the eligibility zone.
18. The case set up by the petitioner is that admittedly, respondent No. 5 studied M.Phil, from 6th July, 1998 to June, 1989. When she was studying this course, how she can be said that she was also working as Lecturer in K.-M. College of Education, Bhiwani from 10th October, 1988 to 14th December, 1988 and from 15th December, 1988 to June, 1989 in R.K.S. College of Education Sidhrawali (Gurgaon). If this period is deducted, then she was not having six years experience and, therefore, she was not eligible to the post of Principal. Mr. Sheoran also submitted that on the complaint, an inquiry was conducted and it was noted that her joining the M.Phil, course was not proper. So much so, recovery was ordered to be effected from her as admitted by the State even and once the period from 6th July, 1988 to June, 1989 is excluded, respondent No. 5 lacks in experience of six years and, therefore, her appointment to the post should be quashed. The submission of the learned Counsel for the petitioner is not correct. Firstly, respondent No. 5 joined the service w.e.f. 10th October, 1988 and she worked up to 14th December, 1988 in
K.M. College of Education, Bhiwani from July, 1988 upto 9th October, most of the classes of the first semester were over. It is the stand of respondent No. 5 that this course was to continue up to November only and the Principal of the college had adjusted her teaching period in such a manner that she could very easily attend the classes of M.Phil. of the first semester and so far as the second semester was concerned, it related to dissertation and in dissertation based paper, no regular attendance was required as the matter was between the student and the guide. In this view of the matter, I am inclined to hold that though respondent No. 5 was in service from 10th October, 1988 to June, 1989, still her teaching experience did not suffer on account of her joining the course. So far as the first semester was concerned, only few days were required to be attended and so far as the second semester was concerned, she was not supposed to attend the regular classes and, therefore, she could achieve the requisite teaching experience while serving in K.M. College of Education, Bhiwani and R.L.S. College of Education Sidhrawali (Gurgaon).
19. The main plank of the argument of the learned Counsel for the petitioner is that the Government passed the order of recovery because it is a Government added institution. It is true, earlier the Government did take a decision for the recovery of the salary from Smt. Sushila Kumari Hooda but the matter was reconsidered by the Government itself, as is evident from the letter Annexure R-5/6 dated 8th December, 1998, in which there is a reference of the letter dated 4th January, 1995 relying upon the State Government Annexure R/l bearing No. 22/7/91 and also of the letter dated 3.1.1996. Subsequent to the passing of this order, a fresh inquiry was conducted under the orders of the Director, Higher Education and it was found that the complaint filed against respondent No. 5 was false and baseless. There is a clear finding in this regard that M.Phil, student can join service as per the M.D. University letter dated 2.1.1990 and, further that the Principal of K.M. College of Education, Bhiwani had adjusted the time table of respondent No. 5 in such a manner that her studies may not suffer. It was also observed that only respondent No. 5 joined K.M. College of Education, Sidhawali. She was a student of M.Phil, course and it was within the knowledge of the Principal, of the College and her forwarded her teaching return to the University clearly making a mention that respondent No. 5 was a M.Phil, student. Thus, it was in the knowledge of the Principal of the College as well as of the University that respondent No. 5 was serving while she was doing her M.Phil, course. There was no question of concealment on her part. This letter further makes the position of respondent No. 5 very clear with regard to her second semester. It has been clearly stated in this letter that second semester relating to dissertation and in dissertation based paper, no regular attendance were required for the second semester as the matter was between the student and the guide and no study leave etc. was required for the completion of the course. Also it is stated by the Director that respon-
dent No. 5 had not flouted any rules; she has not availed any scholarship/fellowship/library aid etc. during her M.Phil, course; she did not apply for any special increment and her results during the session 1988-89 were satisfactory (100%). Also, it was observed that as respondent No. 5 was serving in K.M. College of Education, Bhiwani and R.L.S. College of Education, Sidhrawali, necessary approvals were granted by the University and experience certificates were issued by the Principal. Even the Selection Committee was satisfied about the experience and qualification of respondent No. 5 at the time of her interview and recommendation was finally made to the Government for the reconsideration of the entire matter. This is the stand of the State Government itself. It is difficult for me to say that respondent No. 5 was lacking in her age, qualification, experience etc.
20. Faced with this situation, learned Counsel for the petitioner submitted that letter dated Annexure R-5/6 is only a recommendation from Director, Higher Education, Haryana to the Financial Commissioner and Secretary to Government, Haryana, Education Department. It is not binding on the Court which can independently see about the experience of respondent No. 5. It is true that the letter of the Director is not binding upon the Court but in view of the position explained by the Director itself, it stands proved on record that respondent No. 5 could join the service when she was doing M.Phil, and her teaching experience was not interrupted or affected during the course of her studies. Thus, I hold that the selection and appointment of respondent No. 5 to the post of Principal was within the rules and there was no violation.
21. I have derived support from P.S. Sadasi-vaswamy v. State of Tamil Nadu, 1976(1) SLR 53 a
judgment of the Hon’ble Supreme Court where they have said that if a writ is vitiated by the vice of delay and laches, such a writ petition should be dismissed.
22. Summing up of the above discussion, I hold that this writ petition is liable to be dismissed on the ground of delay and laches; it is mala fide one; it has been filed at the behest of Shri Ram Kishan Gupta by the present petitioner to settle scores with respondent No. 5 and that the appointment of respondent No. 5 to the post of Principal is not in violation of the statutory rules regarding age or experience.
Resultantly, the present writ petition is liable to be dismissed and the same is hereby dismissed with costs which are assessed at Rs. 2,000/-.
23. Petition dismissed.