HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Chief Justice's Court Case :- SPECIAL APPEAL No. - 485 of 2015 Appellants:- Bundelkhand University Jhansi through. Registrar & Anr Respondents:- Shailendra Kumar Srivastava & Anr
Counsel for Appellants :- Neeraj Tiwari Counsel for Respondents :- CSC, S F A Naqvi Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Yashwant Varma, J The special appeal has arisen from a judgment and order of the learned Single Judge dated 15 May 2015, by which the writ petition filed by the first respondent was allowed, an order of termination was set aside but on the principle of 'no work no pay', the claim for back wages was declined. The Bundelkhand University1 and its Vice Chancellor are in special appeal.
On 10 January 2005, a resolution was passed by the Executive Council of the University, which is a statutory body governed by the Uttar Pradesh State Universities Act, 19732 providing for the appointment of the first respondent as a Data Entry Operator, a Class-III post, until a regular selection was made through a Selection Committee. The first respondent was accordingly notified on 10 January 2005. On 3 April 2005, the Executive Council reconsidered its earlier resolution and took a decision to regularise the services of the first respondent on the post of Data Entry Operator. On 16 February 2006, the Executive Council reconvened and, among the subjects on the agenda, reconsidered the appointments of two persons as Data Entry Operators including the first respondent. The Executive Council noted that the appointment of the first respondent was made without the recommendation of a duly constituted Selection Committee which is contrary to the relevant Government Order. The Executive Council accordingly resolved to terminate the services of the first respondent. According to the University, following the resolution of the Executive Council, a notice to show cause was issued to the first respondent on 29 May 2006. The first respondent was terminated from service by an order dated 31 August 2006.
The first respondent filed a writ petition3 challenging the action of the appellants. Pleadings were exchanged. By a judgment and order dated 15 May 2015, the learned Single Judge has set aside the decision of the University on the ground that (i) the action was in violation of the principles of natural justice; and (ii) the Executive Council had no power to review its decision regularising the services of the first respondent.
At the outset, it must be noted that it is not in dispute that the appointment of the first respondent was not on the recommendation of a duly constituted Selection Committee. As a matter of fact, the letter of appointment dated 10 January 2005 indicates that the Executive Council had, at its meeting, noted that the appointment of the first respondent was being made by the Vice Chancellor until the selection of a regularly selected candidate on the recommendation of the Selection Committee. On 3 April April 2005, the Executive Council took a decision to regularise the appointment of the first respondent. In compliance of the resolution of the Executive Council dated 3 April 2005, an Office Order was issued by the Registrar of the University on 14 June 2005 regularising the service of the first respondent.
In the counter affidavit filed by the University, it was stated as follows:
"...There is a prescribed procedure for every appointment namely the post must be sanctioned, it should be widely advertised, the selection committee should be constituted by the competent authority and the candidate must face the selection committee before seeking appointment. The candidate must possess requisite qualification for the post in question. Admittedly there was no selection committee constituted for selection. In fact the appointment of the petitioner was made during the tenure of Professor Ramesh Chandra as Vice Chancellor and the then Registrar Sri V K Sinha. Professor Ramesh Chandra was removed in July 2005 on the findings of the enquiry committee against him and Sri Sinha was transferred from Jhansi to Agra. It is relevant to mention that the petitioner was closely related to Sri V K Sinha. In fact it was a back door appointment."
In the rejoinder which the first respondent filed, it was sought to be contended that the power to make an appointment is vested in the Executive Council under Section 21(1)(vii) of the State Universities Act. Section 21(1)(vii) empowers the Executive Council as the principal executive body of the University to appoint officers, teachers and other employees of the Universities and to define their duties and conditions of their services, and to provide for the filling up of temporary casual vacancies on these posts. The submission which the first respondent urged in the rejoinder affidavit was that since the statutory provisions contained under Section 21(1)(vii) did not contain any specific procedure, all appointments and terminations would have to take place in accordance with that provision, and a Government Order could not be lawfully utilized to terminate the services of a Class-III employee. Significantly, the first respondent, in paragraph 9 of the rejoinder affidavit did not specifically deny the contents of paragraph 17 of the counter affidavit filed by the University to the effect that the first respondent was closely related to Shri V K Sinha, the then Registrar of the University who was since transferred from Jhansi to Agra. The fact that there was no Selection Committee constituted for the selection of the first respondent; that the appointment of the first respondent was made during the tenure of the then Vice Chancellor who was removed in July 2005 on the findings of an Inquiry Committee against him; and that the first respondent was closely related to the then Registrar who was subsequently transferred, did not meet any specific denial apart from a general denial of the contents of paragraph 17 of the counter affidavit. The University brought on the record the resolution of the Executive Council dated 25 August 2000 under which a Selection Committee was liable to be constituted for making appointments in respect of non-teaching employees. The submission of the first respondent during the course of the hearing of these proceedings is that the resolution, besides naming the designation of the officers of the University constituting the Selection Committee also refers to them by name and there is no subsequent resolution replacing the named officers who may have ceased to be in service. This plea cannot be accepted for the simple reason that once a Selection Committee is constituted by reference to the post held by an officer or officers, the fact that an incumbent has retired would not affect the validity of the constitution of the Selection Committee. An officer who is a successor in office would necessarily form part of the Selection Committee constituted in terms of the resolution of the Executive Council.
The facts which have emerged on the record are reflective of the position that the appointment of the first respondent was made without following the requisite procedure as envisaged in the resolution of the Executive Council and without the candidature of the first respondent being recommended by the Selection Committee. Such posts falling within the jurisdiction of the University have to be advertised and the Selection Committee has to evaluate the merits of the competing applicants. This requirement ensures that the provisions of Articles 14 and 16 of the Constitution are not breached in matters of public employment. The entry of the first respondent was a backdoor entry. The appointment was void ab initio.
The University specifically stated in paragraph 24 of its counter affidavit that before implementing the resolution dated 16 February 2006, a notice to show cause was issued to the first respondent on 29 May 2006 as is evident from the order of termination dated 31 August 2006. This statement in paragraph 24 of the counter affidavit was not specifically traversed in paragraph 12 of the rejoinder affidavit; the only case of the first respondent being that no enquiry was held. The facts are not in dispute. This is not a case where an employee is stated to have been terminated for an act of misconduct but a case where the appointment itself is void ab initio for failure to follow any known procedure for recruitment to a post borne on the establishment of the University.
The learned Single Judge, in our view, was in error in both the findings which led to the impugned judgment. There was no breach of the principles of natural justice. This is a case of an appointment which is void ab initio. The holder of a post who is appointed without following the due process of law and whose appointment is a backdoor entry, can have no grievance whatsoever when steps are taken to rectify the position. Such appointments are void ab initio and would not confer any right to the holder of the post. The issue as to whether the University had a right to review its earlier resolution regularising the service of the first respondent is again of no consequence. An appointment which is illegal and bad at its inception confers no right to an employee and the University was, therefore, within its power in rectifying the position. The first respondent had worked only between the date of his appointment on 10 January 2005 until the date of his termination from service on 31 August 2006.
For these reasons, we allow the special appeal and set aside the impugned judgment and order of the learned Single Judge dated 15 May 2015 passed in Writ - A No 17206 of 2006. In consequence, the writ petition filed by the first respondent shall stand dismissed. However, there shall be no order as to costs.
Order Date :- 24.7.2015 AHA (Dr D Y Chandrachud, CJ) (Yashwant Varma, J)