Telangana High Court
Dr. A Venkateswar Rao vs Dr. Vinatha Naini on 6 August, 2024
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT APPEAL Nos.270, 279 AND 305 OF 2024
COMMON JUDGMENT:
(Per Hon'ble Sri Justice Abhinand Kumar Shavili) Since the issue involved in all these Writ Appeals is one and the same, all these Writ Appeals are being disposed of by way of this common judgment.
2. Aggrieved by the order, dated 24.08.2023, passed in W.P.No.46785 of 2022 by a learned Single Judge of this Court, the present Writ Appeals are filed by the appellants with the leave of the Court, as they are not parties to the said Writ Petition.
3. Heard Sri P.S. Rajasekhar, Sri M. Srikanth and Sri S. Lakshmikanth, learned counsel for the appellants, Sri G. Vidyasagar and Sri Nandigama Krishna Rao, learned Senior Counsel, and Sri N.M. Shetty Akhil, learned counsel, representing Sri Kotta Raghavendra Prasad, learned counsel appearing for respondent Nos.1 and 2, learned Advocate General appearing for respondent No.3 and Sri P. Bhanu Prakash, learned Standing Counsel for Kakatiya University, appearing for respondent No.4- Kakatiya University.
2 AKS,J & LNA,J W.A.No.270 of 2024 & batch
4. For the sake of convenience, the facts and the submissions made in W.A.No.270 of 2024 are hereunder discussed.
5. It is the case of the appellants that they are all fully qualified and eligible to be appointed as Assistant Professors. The respondent-University has issued recruitment notification on 31.12.2009 inviting applications for filling up the posts of Assistant Professors in various disciplines of the respondent- University. The appellants have responded to the said notification and after undergoing regular selection process, they were selected and appointed as Assistant Professors in Chemistry, Microbiology, Pharmacy, Mathematics, Computer Science etc. While so, several complaints have been received by the State Government with regard to selection of certain Assistant Professors in certain disciplines.
6. Alleging that certain discrepancies and irregularities have taken place while selecting Assistant Professors in Zoology Department, W.P.Nos.12563, 15138 and 24732 of 2010 were filed before this Court challenging the selections made to the post of Assistant Professor in Zoology Department. Thereafter, the State Government has constituted a two members committee vide 3 AKS,J & LNA,J W.A.No.270 of 2024 & batch G.O.Rt.No.82, dated 11.02.2011, to enquire into the alleged irregularities. The learned Single Judge of this Court, having observed that there were several irregularities in the selections made to the post of Assistant Professor in Zoology Department, was pleased to allow the said Writ Petitions vide common order, dated 28.02.2011, and had set aside the selection and appointment of Dr. Ch. Sravanthi and Dr. Gowda Rajender to the post of Assistant Professor in Zoology Department. The appointments of Dr. Ch. Sravanthi and Dr. Gowda Rajender were set aside on two grounds i.e. the Executive Council, which has approved the selections of the selected candidates, was not having requisite quorum to approve the selections and that one of the selected candidate's father was the Chairman of the Selection Committee. Therefore, on the ground of bias and also for want of requisite quorum while approving the selections, the selections of Dr. Ch. Sravanthi and Dr. Gowda Rajender as Assistant Professors in Zoology Department were set aside.
7. Aggrieved by the same, the candidates, whose selections were set aside, including that of the respondent-University and the petitioner in W.P.No.24732 of 2010, have filed W.A.Nos.233 to 235 of 2011 and W.A.Nos.1553 to 1555 of 2013 and Writ 4 AKS,J & LNA,J W.A.No.270 of 2024 & batch Appeal Cross Objections (SR) No.112907 of 2011 before a Division Bench of this Court. The Division Bench of this Court was pleased to dismiss the same vide common judgment, dated 19.03.2015.
8. The respondent-University had contended before the Division Bench that the appointments made in respect of the candidates selected in other disciplines, other than Zoology, may not be disturbed on the ground that the Executive Council had no requisite quorum to approve the selections and the said contention was recorded at paragraph No.32 of the judgment, dated 19.03.2015, and the Division Bench of this Court, at paragraph No.43 of the said judgment, made it clear that the selections of other candidates, who are selected as Assistant Professors in other disciplines need not be set aside only on the ground that the Executive Council did not have requisite quorum, while approving the selections. However, liberty was given to the respondent-University to place all the recommendations of the Selection Committee before the Executive Council duly constituted as per the provisions of Section 18 of The Telangana Universities Act, 1991 (for short, 'the Act') afresh and seek approval and 5 AKS,J & LNA,J W.A.No.270 of 2024 & batch confirmation of the appointments with effect from the date on which they were appointed.
9. Aggrieved by the common judgment, dated 19.03.2015, the matter was carried to the Honourable Supreme Court by filing SLA(C) No.13827 of 2015 and batch and the Honourable Supreme Court was pleased to dispose of the same by adding that the said direction of the Division Bench should be carried out expeditiously preferably within a period of two months in the interest of institution and the student community and till such time, the parties should maintain status quo. By virtue of the order passed by the Honourable Supreme Court and the Division Bench of this Court, the appellants are continuing in service.
10. It is the further case of appellants that the Honourable Supreme Court had disposed of the said SLA(C) and batch with an observation that the respondent-University should place the matter before the Executive Council in terms of the observations made by the Division Bench of this Court at paragraph No.43 of the judgment, dated 19.03.2015, in W.A.No.233 of 2011 and batch. Pursuant to the same, the recommendations of the Selection Committee were placed before the Executive Council 6 AKS,J & LNA,J W.A.No.270 of 2024 & batch and the Executive Council has rejected the recommendations of the Selection Committee vide proceedings, dated 15.11.2019.
11. It is further case of the appellants that as per second proviso to Section 19(5) of the Act, whenever the Executive Council rejects the approval of selected candidates, then the matter has to be placed before the State Government for taking necessary decision and the decision of the State Government would be final. As the Executive Council has not approved the selections made by the Selection Committee, the respondent- University has placed the matter before the State Government vide proceedings, dated 23.11.2019, in terms of second proviso to Section 19(5) of the Act. The State Government has constituted a Committee vide G.O.Rt.No.248, dated 17.12.2022, in order to examine the grievance of such of those persons, who were selected by the duly constituted Selection Committee, however, not approved by the Executive Council.
12. It is further case of the appellants that the Committee so constituted by the State Government was examining the cases of the appellants and others and even before the said Committee could take any decision, some of the candidates have approached this Court challenging the said constitution of the Committee vide 7 AKS,J & LNA,J W.A.No.270 of 2024 & batch G.O.Rt.No.248, dated 17.12.2022, by filing the subject W.P.No.46785 of 2022, contending that the question of examining the cases of Assistant Professors, whose appointments were not approved by the Executive Council, by the State Government would not arise when once the selections pertaining to the notification, dated 31.12.2009, were set aside by a learned Single Judge of this Court in W.P.No.12563 of 2010 and batch, dated 28.02.2011, which was confirmed by a Division Bench of this Court in W.A.No.233 of 2011 and batch, dated 19.03.2015, and also by the Honourable Supreme Court in SLA(C) No.13827 of 2015 and batch, dated 11.05.2015, and that one of the Members of the Committee so constituted by the State Government vide G.O.Rt.No.248, dated 17.12.2022, was the person who has rejected the recommendations of the Selection Committee and that person cannot be a Member in the Committee so constituted by the State Government, in exercise of powers under second proviso to Section 19(5) of the Act.
13. The learned Single Judge of this Court vide impugned order, dated 24.08.2023, was pleased to allow the Writ Petition by setting aside G.O.Rt.No.248, dated 17.12.2022, by observing that the respondent-University could not have referred the matter to 8 AKS,J & LNA,J W.A.No.270 of 2024 & batch the State Government vide letter, dated 23.11.2019, and that the State Government could not have constituted a Committee by issuing G.O.Rt.No.248, dated 17.12.2022, when once the Executive Council has already taken a decision not to approve the selections made pursuant to the notification, dated 31.12.2009. Aggrieved by the same, the present Writ Appeals are filed.
14. Learned counsel for the appellants had contended that the appellants were the affected persons and they were not impleaded as party respondents in the subject Writ Petition. The learned Single Judge in W.P.No.12563 of 2010 and batch has adjudicated the issue in respect of appointment of Assistant Professors in Zoology Department only. So, any observation made by the learned Single Judge in the aforesaid batch of Writ Petitions, which was confirmed by the Division Bench and the Honourable Supreme Court, has no impact on the cases of the appellants.
15. Learned counsel for the appellants had further contended that the Division Bench of this Court, at paragraph No.43 of the judgment, dated 19.03.2015, has specifically observed that it is open to the respondent-University to place the recommendations 9 AKS,J & LNA,J W.A.No.270 of 2024 & batch of the Selection Committee before the Executive Council for its approval. As admittedly, the Executive Council has not approved the recommendations of the Selection Committee, the matter was rightly referred by the respondent-University to the State Government in terms of second proviso to Section 19(5) of the Act and the State Government is the only authority, which has to take a final call.
16. Learned counsel for the appellants had further contended that the appellants are not contending that their cases have to be examined by the Committee constituted in terms of G.O.Rt.No.248, dated 17.12.2022. The issue has to be looked into by the State Government under second proviso to Section 19(5) of the Act. The learned Single Judge has mechanically set aside the said G.O. issued in favour of the appellants, who were not even parties before the learned Single Judge. Further, the observations made by the learned Single Judge that the respondent-University was not justified in referring the cases of the appellants to the State Government in terms of second proviso to Section 19(5) of the Act is not tenable. The understanding of the learned Single Judge was that when once the Executive Council has rejected the cases of the appellants, 10 AKS,J & LNA,J W.A.No.270 of 2024 & batch then they do not have any remedy at all, but a perusal of second proviso to Section 19(5) of the Act would make it clear that whenever the Executive Council declines to grant approval of the selection of the candidates, then the matter has to be referred to the State Government in terms of second proviso to Section 19(5) of the Act and the State Government must examine the case and pass appropriate orders.
17. Admittedly, in the instant case, none of the appellants were heard before passing the orders in W.P.No.12563 of 2010 and batch, dated 28.02.2011 or in W.A.No.233 of 2011 and batch, dated 19.03.2015. Further, a perusal of paragraph No.43 of the judgment, dated 19.03.2015, of the Division Bench of this Court makes it abundantly clear that the Division Bench gave liberty to the respondent-University to place the recommendations of the Selection Committee before the Executive Council afresh in respect of other disciplines, where Assistant Professors are recruited. Accordingly, the cases of the appellants were placed before the Executive Council and the Executive Council has not approved the selections of the appellants vide resolution, dated 15.11.2019. Therefore, the respondent-University was justified in referring the cases of the appellants to the State Government in 11 AKS,J & LNA,J W.A.No.270 of 2024 & batch accordance with second proviso to Section 19(5) of the Act and the State Government was examining the cases of the appellants and even before the State Government could take any decision in terms of second proviso to Section 19(5) of the Act, the learned Single Judge has allowed the subject Writ Petition.
18. Learned counsel for the appellants had further contended that the unofficial respondents (writ petitioners) were working as Assistant Professors in other departments. Even if the selections of the appellants were set aside, the unofficial respondents would not get selected in the place where the appellants are working as Assistant Professors. Therefore, looked from any angle, the impugned order is liable to be set aside and the cases of the appellants deserve to be considered by the State Government in terms of second proviso to Section 19(5) of the Act. Therefore, appropriate orders be passed to that effect and direct the State Government to re-examine the cases of the appellants strictly in accordance with second proviso to Section 19(5) of the Act and also set aside the impugned order passed by the learned Single Judge, as the same is contrary to second proviso to Section 19(5) of the Act.
12 AKS,J & LNA,J W.A.No.270 of 2024 & batch
19. Learned counsel for the appellants, in support of their submissions, had relied upon a judgment of the Honourable Supreme Court in Girjesh Shrivastava and others v. State of Madhya Pradesh and others 1, wherein the Honourable Supreme Court has come to a conclusion that the persons, who are affected, must be impleaded as party respondents and in the absence of affected parties, no finding can be recorded by any Court. Learned counsel further contended that moreover, the proceedings were pending before the State Government for ratification of the appointment of the appellants in terms of second proviso to Section 19(5) of the Act. Therefore, the learned Single Judge ought to have heard the affected persons. In the absence of giving any opportunity to the appellants, the order passed by the learned Single Judge is bad in law. Therefore, appropriate orders be passed in the Writ Appeals to that effect.
20. Learned Advocate General appearing for respondent No.3 had contended that as the impugned order passed by the learned Single Judge is contrary to second proviso to Section 19 (5) of the Act, the State has filed a review petition in the subject Writ 1 (2010) 10 SCC 707 13 AKS,J & LNA,J W.A.No.270 of 2024 & batch Petition and the same is pending consideration before the learned Single Judge.
21. Learned Standing Counsel appearing for the respondent- University had contended that in terms of second proviso to Section 19(5) of the Act, the respondent-University has rightly placed the matter before the State Government vide proceedings, dated 23.11.2019, and the State Government was examining the cases of the appellants and even before the State Government could take a decision, the unofficial respondents have approached this Court by filing the subject Writ Petition and the learned Single Judge of this Court, without properly appreciating the second proviso to Section 19(5) of the Act, was pleased to allow the subject Writ Petition vide impugned order, dated 24.08.2023, by setting aside G.O.Rt.No.248, dated 17.12.2022, with an observation that the respondent-University could not have referred the matter to the State Government, as the Executive Council has rejected the recommendations of the Selection Committee. Therefore, appropriate orders be passed to that effect.
14 AKS,J & LNA,J W.A.No.270 of 2024 & batch
22. On the other hand, learned Senior Counsel appearing for the unofficial respondents had contended that the learned Single Judge has rightly set aside G.O.Rt.No.248, dated 17.12.2022. When once the learned Single Judge was pleased to set aside the entire appointments made pursuant to the notification, dated 13.12.2009, in W.P.No.12563 of 2010 and batch, dated 28.02.2011, the question of referring the cases to the State Government for ratification of the appointments would not arise. The learned Single Judge in W.P.No.12563 of 2010 and batch, dated 28.02.2011, has set aside the selections on two grounds i.e. the Executive Council, which has approved the selections, did not have requisite quorum and also on the ground of bias as one of the selected candidate's father was Chairman of the Selection Committee. The learned Single Judge had also set aside the selection on the ground that the marks were allotted by the members of the Selection Committee in an arbitrary fashion. Therefore, the question of referring the cases of the candidates, who were selected pursuant to the notification, dated 31.12.2009, to the State Government for ratification would not arise.
23. Learned Senior Counsel appearing for the contesting respondents had further contended that the learned Single Judge 15 AKS,J & LNA,J W.A.No.270 of 2024 & batch in W.P.No.12563 of 2010 and batch, dated 28.02.2011, has set aside the selections in respect of Assistant Professors in Zoology Department on the ground that they are in violation of Ordinance- II of the respondent-University. A perusal of Ordinance-II of the respondent-University makes it clear that the marks allotted to the selected candidates have to be assessed by the members of the Selection Committee with lot of clarity. In the instant case, there is no such clarity and exorbitant marks were allotted to the selected candidates and marks were denied to the candidates, who are meritorious. When once the selections are set aside in its entirety, the question of referring the same to the Executive Council and to the State Government for ratification of the appointments would not arise.
24. Sri N.M. Shetty Akhil, learned counsel for the unofficial respondents, had relied upon a judgment of the Honourable Supreme Court in Union of India and another v. Raghuwar Pal Singh 2 and contended that when once the selections are held to be arbitrary and illegal, the question of extending principles of natural justice to some of the selected candidates would not arise. Learned counsel further contended that admittedly, in the instant 2 (2018) 15 SCC 463 16 AKS,J & LNA,J W.A.No.270 of 2024 & batch case, the appellants are selected pursuant to the notification, dated 31.12.2009, and once the selections are set aside by the learned Single Judge, which was confirmed by the Division Bench and also the Honourable Supreme Court, the question of reconsidering the cases of the appellants by the State Government would not arise.
25. Learned counsel appearing for the unofficial respondents had further relied upon a judgment of the Honourable Supreme Court in Kendriya Vidyalaya Sangathan and others v. Ajay Kumar Das and others 3, wherein the Honourable Supreme Court has held that when once the termination order is set aside, the question of extending principles of natural justice thereafter would not arise. The learned counsel further contended that admittedly, in the instant case, the learned Single Judge in W.P.No.12563 of 2010, dated 28.02.2011, has set aside the selections on the ground that the selections were approved by the Executive Council, which do not have requisite quorum. The same principle applies to the appellants also. Therefore, the question of once again examining the cases of the appellants by the State Government would not arise.
3 (2002) 4 SCC 503 17 AKS,J & LNA,J W.A.No.270 of 2024 & batch
26. Learned counsel appearing for the unofficial respondents had further relied upon a judgment of the Honourable Supreme Court in Government of Andhra Pradesh and others v. K. Brahmanandam and others 4, wherein the Honourable Supreme Court has held that once the appointment orders of candidates are set aside on the ground that they are in violation of the mandatory provisions of the statute, the question of examining their cases by the State Government for their ratification would not arise. Learned counsel further contended that admittedly, in the instant case, the appointments of the appellants were set aside by the learned Single Judge of this Court, as referred to supra, on the ground that the Executive Council, which has approved the selections of the appellants, is not having requisite quorum. Therefore, the question of once again examining the appointments by the State Government for ratification would not arise. Therefore, the learned Single Judge was justified in allowing the subject Writ Petition in favour of the unofficial respondents. Hence, there are no merits in the Writ Appeals and the same are liable to be dismissed.
4 (2008) 5 SCC 241 18 AKS,J & LNA,J W.A.No.270 of 2024 & batch
27. This Court, having considered the rival submissions made by the learned counsel for the parties, is of the considered view that the learned Single Judge of this Court in W.P.No.12563 of 2010 and batch, dated 28.02.2011, was dealing with selections made to Assistant Professors in Zoology Department of the respondent- University. Whereas, all the appellants are working as Assistant Professors in various other disciplines other than Zoology Department. The appointments made in Zoology Department were alone dealt with in the said batch of Writ Petitions and the appointments made in Zoology Department to the post of Assistant Professor alone were set aside and the matter was carried in the form of Writ Appeal No.233 of 2011 and batch and a specific pleading was raised by the learned Standing Counsel appearing for the respondent-University before the Division Bench that the appointments in respect of other disciplines may not be set aside on the ground that the Executive Council did not have requisite quorum for approving the selections pursuant to the notification, dated 31.12.2009, and liberty was sought to place the recommendations of the Selection Committee before the Executive Council for fresh approval and to that effect, the 19 AKS,J & LNA,J W.A.No.270 of 2024 & batch Division Bench of this Court in paragraph No.43 of the common judgment, dated 19.03.2015, has observed as under:
"43. We are informed that the selection committee has made appointments of several persons on the basis of the recommendations made by the Executive Council and all those persons who were appointed by the very same Executive Council are working since last about 3 to 4 years and if we hold that the appointments of Dr. Sravanthy and Dr. Gowda are illegal for want of quorum that would seriously jeopardize the interest of all such appointments which were made by the Executive Council with its four members. We, therefore, observe that it would be open to the University, if they so desire and advised, and if the circumstances so demand, to place all such recommendations of the selection committee before the Executive Council afresh, duly constituted as per the provisions of Section 18 of the Act, and seek approval and confirmation of their appointments with effect from the date on which they were appointed."
Thereafter, the matter was further carried to the Honourable Supreme Court by filing S.L.A.(C).No.13827 of 2015 and batch and the Honourable Supreme Court was pleased to dispose of the same vide order, dated 11.05.2015, with the following observations:
"However, we only wish to add that the said direction of the Division Bench should be carried out expeditiously preferably within two months in the interest of the
20 AKS,J & LNA,J W.A.No.270 of 2024 & batch institution and the student community. With the very same view, we also direct the status quo to be maintained pending the above said exercise is carried out by the University. We also direct the respondent University to carry out the exercise as directed by the Division Bench in the above said paragraph and conclude the same within two months from the date of production of a copy of this order. It is needless to state that the order is being passed in respect of the candidates who are parties to these proceedings."
28. Even a perusal of paragraph No.43 of the common judgment, dated 19.03.2015, and also the observations made by the Honourable Supreme Court referred to supra makes it clear that liberty was given to the respondent-University to place the recommendations of the Selection Committee before the Executive Council for fresh approval. Therefore, the Executive Council has examined the cases of the selected candidates, who were appointed in other disciplines like that of the appellants and the Executive Council has rejected their cases vide proceedings, dated 15.11.2019.
29. Here it is apt to refer Section 19(5) of the Act, which reads as under:
"19. The Executive Council shall be the Executive Authority of the University and shall have power, -
21 AKS,J & LNA,J
W.A.No.270 of 2024 & batch
(1) xxx
(2) xxx
(3) xxx
(4) xxx
(5) Subject to such statutes as may be prescribed in this
behalf,-
(i) to appoint the teachers of the University below
the rank of Assistant Professors;
(ii) to appoint the teachers of the University and
above the rank of Assistant Professors on the
recommendations of the Selection Committee
constituted for the purpose:
Provided that the Executive Council may invite any person of high academic distinction and professional attainments to accept a post of Professor in the University and appoint him to that post:
Provided further that if the Executive Council rejects the selections made by the Selection Committee, the matter shall be referred by the University to the State Government whose decision thereon shall be final;
(iii) to fix emoluments of the teachers of the University and define their duties and conditions of service;"
30. A perusal of second proviso to Section 19(5) of the Act makes it clear that whenever the Executive Council rejects the selections made by the Selection Committee, then the respondent-University must invariably refer the matter to the 22 AKS,J & LNA,J W.A.No.270 of 2024 & batch State Government for reconsideration and the decision of the State Government would be final. Accordingly, the respondent- University has referred the matter to the State Government vide proceedings, dated 23.11.2019, and the State Government vide G.O.Rt.No.248, dated 17.12.2022, constituted a committee to take a decision on the resolution of the Executive Council. Even before a decision is taken by the State Government, the learned Single Judge has set aside G.O.Rt.No.248, dated 17.12.2022, with an observation that the question of respondent-University referring the matter to the State Government would not arise, when once the Executive Council has not approved the selections of the selected candidates vide proceedings, dated 15.11.2019. Therefore, the learned Single Judge was not justified in setting aside G.O.Rt.No.248, dated 17.12.2022, with an observation that the respondent-University could not have referred the matter to the State Government.
31. Therefore, this Court is of the considered view that the State Government should constitute a Committee and examine the cases of the appellants, as the State Government has got power under second proviso to Section 19(5) of the Act to take a final call on the selections made by the respondent-University.
23 AKS,J & LNA,J W.A.No.270 of 2024 & batch Therefore, in exercise of the said powers, the State Government shall examine the matter, be it in the form of a Committee or some other means and consider the cases of the candidates and pass appropriate orders in accordance with law. As admittedly, the appellants, whose appointments were to be considered by the State Government, were not heard and their cases were adjudicated by the learned Single Judge, without impleading them as party respondents, the impugned order, dated 24.08.2023, passed by the learned Single Judge in W.P.No.46785 of 2022 is liable to be set aside and accordingly, the same is set aside.
32. In view of the above, the State Government shall consider the cases of all the appellants and other selected candidates, whose appointments were not approved by the respondent- University, and pass appropriate orders, in accordance with law, after giving them an opportunity. The above exercise shall be completed by the State Government as expeditiously as possible, preferably, within a period of six (6) months from the date of receipt of a copy of this judgment. It is needless to state that till the State Government takes a decision, the respondent-University shall continue the services of all the candidates, who were 24 AKS,J & LNA,J W.A.No.270 of 2024 & batch selected pursuant to the notification, dated 31.12.2009, except the Assistant Professors in Zoology Department.
33. With the above observations/directions, the Writ Appeals are disposed of. There shall be no order as to costs.
Miscellaneous Applications, if any, pending in these Writ Appeals, shall stand closed.
_________________________ ABHINAND KUMAR SHAVILI, J __________________________ LAXMI NARAYANA ALISHETTY, J Date: 06.08.2024.
MD