HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 04.05.2015 Judgment delivered on 15.05.2015 Case :- WRIT - A No. - 17206 of 2006 Petitioner :- Shailendra Kumar Srivastava Respondent :- Bundelkhand University Jhansi Thru' Registrar And Another Counsel for Petitioner :- S.F.A. Naqvi,Shesh Kumar Counsel for Respondent :- P. Padia,Neeraj Tiwari,R.P.Tiwari,S.C. Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Shesh Kumar, learned counsel for the petitioner and Shri Neeraj Tiwari, learned counsel for the respondent-University. Learned Standing Counsel appears for State-respondent.
By means of present writ petition, the petitioner has prayed for following reliefs:-
"i) issue a writ, order or direction in the nature of certiorari to quash the resolution no.1.14 of the Executive Council dated 16.2.2006 (Annexure-6 to the writ petition) terminating the services of the petitioner as Data Entry Operator;
ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere with the petitioner's working on the post of Data Entry Operator and to continue to pay him salary of the said post regularly on month to month basis;
iii) issue a writ, order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the case; and
iv) to award costs of the petition of the petitioner."
By order dated 27.1.2010 following prayers were also allowed to be added in the relief clause:-
"v) issue a writ, order or direction in the nature of certiorari quashing the impugned termination order dt.31.8.2006 passed by respondent No.1 (Annexure No.1 to this affidavit).
vi) issue a writ, order or direction in the nature of certiorari quashing the impugned government order dt.29.12.2005 (Annexure No.7 to the writ petition)."
Brief facts giving rise to this writ petition are as follows:
Present matter relates to Bundelkhand University, Jhansi (hereinafter referred to as 'the University'). The University vide news item dated 30.11.2004 had invited applications for various posts including Data Entry Operator. It has been averred that 12 Class-III sanctioned posts of Data Entry Operator were available in the University, which was duly sanctioned by the State Government in accordance with Section 21 of the U.P. State Universities Act, 1973 (hereinafter referred to as 'the Act') vide sanction letter dated 15.1.1998. It is also averred in the writ petition that the petitioner was initially inducted as Asstt. Law Officer in the University vide appointment letter dated 19.11.2004 in the pay scale of Rs.6500-10500/- under self-financing scheme. In pursuance to the said advertisement the petitioner applied for the post of Data Entry Operator. It has been averred in the writ petition that for appointment of Class-III post in the University there was no procedure. The appointments of Class-III employees in the University were also made without any reference to any Selection Committee as there was no provision in this regard. The Executive Council vide Resolution No.7 dated 10.1.2005 selected the petitioner and resolved to appoint him as Data Entry Operator in the pay scale of Rs.4000-6000/-. In pursuance to the said resolution the Registrar of the University issued appointment letter to the petitioner on 10.1.2005. Immediately the petitioner joined on the said post on 11.1.2005 and started receiving his salary for the said post. Subsequently, the Executive Council reconsidered the matter and vide Resolution No.27 dated 3.4.2005 had resolved to regularise the service of the petitioner on the post of Data Entry Operator. The Registrar vide Office Order dated 14.5.2007 had communicated the petitioner regarding the said resolution of the Executive Council of the University for regularisation of the petitioner's services as Data Entry Operator.
Shri Shesh Kumar, learned counsel for the petitioner submits that the said engagement was made against the substantive post, which was duly advertised by the University and through valid resolution by the Executive Council the appointment letter was issued in favour of the petitioner and subsequently his services had also been regularised by the valid resolution of the Executive Council of the University. The petitioner, who was working in the University as Asstt. Law Officer had never concealed any material fact, having all requisite qualifications for the post of Data Entry Operator had duly applied and finally the appointment letter had been issued by the University. But subsequently the Executive Council of the University without issuing any notice or affording any opportunity of hearing and further without conducting any enquiry in the matter, in its meeting held on 16.2.2006 had resolved to terminate the services of the petitioner as Data Entry Operator and as such the same was hit by the principle of natural justice and cannot be sustained. He further makes submission that the Executive Council of the University had no power as such to review or change his previous order and has drawn attention to the Court to the provision of Section 21 (1) (vii) of the Act, which for ready reference is reproduced below:-
"21. Powers and duties of Executive Council- (1) The Executive Council shall be the principal executive body of the University and subject to the provisions of this Act, have the following powers, namely-
(i).......
(ii)......
(iii).....
(iv).....
(v)......
(vi).....
(vii) to appoint officers, teachers and other employees of the University and to define their duties and the conditions of their service, and to provide for the filling of temporary casual vacancies in their posts;"
He further submits that at no point of time the Executive Council had directed for any enquiry to be made in the matter and has placed his reliance upon a judgment passed by Hon'ble the Supreme Court in Shrawan Kumar Jha & Ors. v. Ram Sewak Sharma & Ors. (AIR 1991 SC 309), the relevant paragraphs of which are reproduced as under:-
"By an order dated November 2, 1988, the Deputy Development Commissioner cancelled the appointments of the appellants. Mr. Ashok H. Desai, learned Solicitor General appearing for the respondents has contended that the appointments have been cancelled because the District Superintendent of Education had no authority to make the appointments, it was a device of by-passing the reservations and that the conditions which are part of the appointment order were not complied with. Mr. U. R. Lalit and Mr. A. K. Ganguli, learned Senior Advocates, appearing for the appellants have controverted these allegations and have dated that all these teachers were validly appointed and they had joined their respective schools. It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period.
The appeals are dismissed accordingly with no order as to costs."
He has further placed reliance on a judgment passed by Hon'ble Apex Court in Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitaram (U.P.) and Ors. (1987 UPLBEC 734) in submitting that the order impugned cannot be sustained as the Executive Council does not have any power as per the provisions of the Act to review his earlier order and placed reliance on para 10, 11, 12 and 13 of the judgment, which is reproduced as under:-
"10. It has been strenuously urged by Mr. Jain, learned Counsel appearing on behalf of the appellant, that the Vice-Chancellor had no power of review under the Statutes of the University or under the U.P. State Universities Act, 1973 and, as such, the Vice-Chancellor acted wholly without jurisdiction in entertaining an application for review filed by the Authorised Controller. On the other hand, it is submitted by Mr. Kacker, learned Counsel appearing on behalf of the Vice-Chancellor, that as the two reports dated August 1, 1986 and July 18, 1986 of the Joint Director of Higher Education, U.P., alleging certain grave financial irregularities, were not before the Vice-Chancellor, the Vice-Chancellor was entitled to review her order and after considering the said reports reviewed her order and approved the order of dismissal of the appellant from service. Further, it is submitted by the learned Counsel that the High Court was justified in not entertaining the writ petition of the appellant, as there was an alternative remedy under Section of the U.P. State Universities Act and the impugned order could be challenged before the Chancellor of the University on a reference of the question to the Chancellor under the provision of Section 68.
11. It is now well established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the Vice-Chancellor. "In the circumstances, it must be held that the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice-Chancellor dated March 7, 1987 was a nullity.
12. The next question that falls for our consideration is whether the High Court was justified in dismissing the writ petition of the appellant on the ground of availability of an alternative remedy. It is true that there was an alternative remedy for challenging the impugned order by referring the question to the Chancellor under Section of the U.P. State Universities Act. It is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy. In the instant case, the Vice-Chancellor had no power of review and the exercise of such a power by her was absolutely without jurisdiction. Indeed, the order passed by the Vice-Chancellor on review was a nullity; such an order could surely be challenged before the High Court by a petition under Article 226 of the Constitution and, in our opinion, the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under Section of the U.P. State Universities Act.
13. As the impugned order of the Vice-Chancellor is a nullity, it would be a useless formality to send the matter back to the High Court for disposal of the writ petition on merits. We would, accordingly, quash the impugned order of the Vice-Chancellor dated March 7, 1987 and direct the reinstatement of the appellant forthwith to the post of Principal of the Institution. The judgment of the High Court is set aside and the appeal is allowed. There will, however, be no order as to costs."
Learned counsel for the petitioner has also submitted that in the similar circumstances Shri Jagdish Chandra, who was also appointed as Data Entry Operator in SC category and continued to work in the University and had been paid salary but the appointment of the petitioner had been cancelled in an arbitrary manner, therefore, the same cannot be sustained in view of law laid down by this Court in Kunj Behari Tewari v. The District Inspector of Schools, Deoria and Anr. {(2013) 2 UPLBEC 1128} specially paragraphs 6 & 7, which is reproduced hereunder:-
"I have considered the rival submissions of the parties, and I am of the view that let the claim of the petitioner be decided by the District Inspector of Schools, Deoria. If the petitioner is also similarly situated with Sri Banka Yadav,Sri Shivaji Dwivedi and Sri Surendra Singh, who have been absorbed with effect from 24.11.1987, the petitioner may also be absorbed. The District Inspector of Schools Deoria is directed to examine the claim in this light with reference to the decision of this Court dated 02.11.1993 in the case of Sri Banka Yadav and Sri Shivaji Dwivedi and the order of District Inspector of Schools Deoria dated 28.12.1989 in the case of Sri Surendra Singh.
The petitioner may serve the certified copy of the order of this Court before the District Inspector of Schools, Deoria within a period of four weeks from the date of the order and the District Inspector of Schools, Deoria is directed to pass appropriate order in the light of the above observation within the period of two months thereafter."
Per contra Shri Neeraj Tiwari, learned counsel for the University submits that in the present matter the order impugned is liable to be upheld on the ground that the petitioner was appointed without following the prescribed procedure and without facing the Selection Committee. Therefore, the Executive Council had resolved to terminate the services of the petitioner and similar decision was also taken in respect of the appointment of Shri Jagdish Chandra, who was also appointed as Data Entry Operator in Scheduled Castes category. He had challenged the said termination order before the National Commission for Scheduled Castes in which the notices had been issued to the Vice Chancellor and the Registrar and finally the Vice Chancellor and the Registrar appeared before the Commission and the Commission had directed the University not to take any action against the employees of the Scheduled Castes category until the matter is subjudice before the Commission itself. The said averment has been brought on record through counter affidavit in para 6.
Learned counsel for the University submits that the case of Jagdish Chandra referred above is entirely different, where the National Commission for Scheduled Castes had intervened in the matter and only on the basis of their intervention he was permitted to work in the University and that may not be taken as a precedence in the present matter.
He further submits that the present appointment was taken place in the tenure of Prof. Ramesh Chandra as Vice Chancellor and the then Registrar Sri V.K. Sinha. Prof. Ramesh Chandra was removed in the month of July, 2005 from the post of Vice Chancellor on the finding of enquiry committee against him and Shri V.K. Sinha, who was the then Registrar was also transferred from Jhansi to Agra. It is submitted that no procedure was adopted in the appointment as such the same cannot be sustained in the eyes of law.
Heard rival submissions, perused the record and considered the judgments cited at the Bar.
It is admitted case that the University has duly advertised the various posts including the Data Entry Operator and the appointment letter had been issued in favour of the petitioner only after the approval of the Executive Council of the University and thereafter his services were also confirmed by the valid resolution of the Executive Council. By subsequent impugned resolution of the Executive Council dated 16.2.2006 and subsequently by the termination order the services of the petitioner had been dismissed without affording any opportunity. Nothing has been brought on record to indicate whether there was any regular enquiry in the matter. No doubt the petitioner was given appointment, even his services had also been regularised through the resolution of the Executive Council. Therefore, at that stage, atleast the petitioner was entitled to be given notice or opportunity of hearing before terminating his services and the impugned order is hit by the principle of natural justice. The University has also not brought on record the procedure, which was adopted for the selection. They have also not filed any relevant material showing the procedure for appointment of Class-III post and whether the Executive Council was empowered for ratification of employment.
Learned counsel for the petitioner has vehemently argued in the matter that the Executive Council or the University had no power to review or recall its previous order and nothing contrary has been brought on record by the University. This is also not the case of the University that the petitioner has obtained the appointment through any mis-representation or concealment of fact or by playing fraud. As such no case has been made out authorising the Executive Council to review its earlier decision.
The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, I am of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. No doubt, the extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.
In A.K. Kraipak and others Vs. Union of India and Others, reported in (1970) 1 SCR 457 the Supreme Court has held as under:-
"The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice." (P. 468-69).
In view of the above, the impugned order terminating the services of the petitioner is hereby set aside. However, it is admitted position that the petitioner has not performed any duty since his termination, therefore, on the principle of 'no work no pay' he is not entitled for any salary for the said period. The respondent-University is directed to reinstate the petitioner within one month from the date of production of certified copy of this order before it.
The writ petition is allowed accordingly.
Order Date :- 15.05.2015 SP/