Dr. Rajesh Kumar Singh vs State Of U.P. And Others
2011 Latest Caselaw 3611 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 29
 

 
Civil Misc. Writ Petition No. 43232 of 2011
 

 
Dr. Rajesh Kumar Singh
 
Vs. 
 
State of U.P. & Others
 

 
Hon'ble Vineet Saran, J.

Hon'ble Ran Vijai Singh, J.

Heard Sri Shailendra, learned counsel appearing for the petitioner as well as learned Standing Counsel appearing for the State respondent no.1, Sri B.D. Pandey, learned counsel for the respondents no. 2 and 3 and Sri Ashok Khare, learned Senior Counsel along with Sri Salil Kumar Rai, learned counsel appearing for the respondent no. 4-Smt. Vinita Pathak and have perused the record.

Learned counsel for the respondents have categorically stated that this writ petition may be disposed of finally at the admission stage without calling for a counter affidavit. As such, with consent of learned counsel for the parties, this writ petition is being disposed of finally at the admission stage.

The brief facts of this case are that the petitioner-Dr. Rajesh Kumar Singh as well as respondent no. 4-Dr. Smt. Vinita Pathak were given substantive appointment in the Political Science department of the University by the decision of the Executive Council dated 1.12.1996. Besides other appointments, there were three appointments made in the Political Science department and in the list of appointees, the name of the respondent no. 4 was shown at serial no. 1 and that of the petitioner at serial no. 3. Thereafter, in the year 1997, as per the supplementary seniority list published on 31.12.1997, the name of the petitioner was shown at serial no. 49 and that of the respondent no. 4 at serial no. 52 on the ground that though both of them had joined their services on the same day but since the petitioner was senior in age than the respondent no. 4, the petitioner would be treated senior to the respondent no. 4. Sri Salil Kumar Rai, learned counsel appearing for the respondents however states that no such seniority list was ever published or circulated by the Registrar of the University.

It is not disputed that a tentative seniority list was thereafter published on 23.7.2007, on which objections were invited. In the said tentative seniority list, the name of the petitioner finds place at serial no. 62 and that of the respondent no. 4 at serial no. 65. Then again on 6.10.2010, another tentative seniority list was published, in which again the petitioner was shown senior to the respondent no. 4. His name being placed at serial no. 26 and that of the respondent no. 4 at serial no. 29. Objections were again invited on the said tentative seniority list. It is stated that the respondent no. 4 filed objections to both the tentative seniority list. By means of the order dated 16.1.20011 passed by the Seniority Committee comprising of Vice Chancellor, Dean of Faculty of Law and Dean of Faculty of Commerce, the matter was decided in favour of the petitioner and considering the provisions of Statute 18.07 of the statutes of the University and the fact that the petitioner as well as the respondent no. 4 having been appointed on the same day and the petitioner being the senior in age, the petitioner was treated as senior to the respondent no. 4. Challenging the said order, the respondent no. 4 filed an appeal before the Executive Council under Clause 18.09 of the statutes of the University. The appeal of the respondent no. 4 was decided by the Executive Council in its meeting held on 12.6.2011, and the Executive Council vide resolution no. 39 maintained the list determined in its meeting dated 1.12.1996 and the respondent no. 4 was treated as senior to the petitioner. Pursuant to the said order of the Executive Council, the Registrar has passed the order dated 1.7.2011 treating the respondent no. 4 as senior to the petitioner. Aggrieved by the resolution no. 39 of the Executive Council dated 12.6.2011 and the order of the Registrar of the University dated 1.7.2011, this writ petition has been filed.

We have heard learned counsel for the parties and perused the record.

Though it has been argued by the learned counsel for the petitioner that the resolution of the Executive Council dated 1.12.96 did not fix any inter se seniority of the petitioner and respondent no. 4, we are not inclined to go into this question, in view of the order which we propose to pass.

The tentative seniority list was issued by the University lastly on 16.10.2011, in which the name of the petitioner was admittedly placed as senior to the respondent no. 4, objections were filed, which were decided by the Seniority Committee on 16.1.2011. Clause 18.09 of the statues of the University, which relates to constitution of Seniority Committee and filing of appeal against decision of Seniority Committee, reads as under:

"18.09 (1) The Vice-Chancellor shall from time to tile constitute one or more seniority committees consisting of himself as Chairman and two Deans of Faculties to be nominated by the Chancellor.

Provided that the Dean of the Faculty to which the teachers, (whose seniority is in dispute) belong shall not be a member of the relative Seniority Committee.

(2) Every dispute about the seniority of a teacher of the University shall be referred to the Seniority Committee which shall decide the same giving reasons for the decision.

(3) Any teacher aggrieved with the decision of the Seniority Committee may prefer an appeal to the Executive Council within sixty days from the date of communication of such decision to the teacher concerned. If the Executive council disagrees with the Committee, it shall give reasons for such disagreement."

Sub-clause (3) of Clause 18.09 of the statues speaks about that reasons are to be recorded by the Executive Council in case if the Executive Council disagrees with the decision of the Seniority Committee, which is also to be a reasoned order as per sub-clause (2).

In the present case, the Seniority Committee had given its detailed reasons for fixing the seniority and placing the petitioner as senior to the respondent no. 4 and has also referred Clause 18.07 of the statutes of the University, which reads as under:-

"18.07. Where more than one teachers are entitled to count the same length of continuous service and their relative seniority cannot be determined in accordance with any of the foregoing provisions, then the seniority of such teachers shall be determined on the basis of seniority in age.

A perusal of resolution no. 39 would go to show that the only reason given by the Executive Council in its order passed on 12.6.2011 was that the representation (appeal) of the respondent no. 4 was considered and it was decided that the seniority as determined by the Executive Council in its meeting held on 1.12.1996 shall be applicable. It clearly does not meet the reasons given by the Seniority Committee for placing the petitioner as senior to the respondent no. 4. It also does not take note of the fact that in all tentative seniority list, which were published by the University, the petitioner had always been placed senior to the respondent no. 4, nor does it take into consideration Clause 18.07 of the statutes of the University.

Learned counsel for the petitioner thus submits that the order of the Executive Council, being without any valid reason and without considering the grounds/reasons given by the Seniority Committee, would be illegal and liable to the set aside. It is also submitted that as the appeal is provided under the statutes, it would be obligatory on the part of the appellate authority to give an opportunity to the aggrieved party before taking a final decision.

The said submission of the learned counsel for the petitioner has force. When an appellate authority is obliged in law to give reasons for disagreeing with the decision taken, which is appealed against, opportunity should be given to the party in whose favour the order has been passed. This would be necessary so as to ensure that the ingredients of natural justice are satisfied. In case if the appellate authority decides the matter and upsets the order appealed against, the interest of the party (which is the petitioner in the present case) would be adversely affected without even having a chance to present his case before the appellate authority.

It is well settled that an order which involves civil consequences must be just, fair, reasonable, unarbitrary and impartial and should be in compliance with the principles of natural justice. The main aim of the principle of natural justice is to secure justice or to put it negatively to prevent miscarriage of the justice vide State of W.B. vs. Anwar Ali Sarkar, 1952 SCR 284; Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248; Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405 and D.K.Yadav vs. J.M.A. Industries Ltd. reported in 1993 SCC 259;

These decisions have been followed in numerous cases decided thereafter which need not be detailed as this is the established principle of law that even an administrative order which leads to civil consequences must be passed in conformity with the rules of natural justice.

In the present case, if the decision of the Seniority Committee was to be reversed by the Executive Council, some opportunity (which need not of personal hearing) ought to have been given by the Executive Council to the petitioner. The least that could have been done was that the copy of the representation/appeal filed by the respondent no. 4 should have been provided to the petitioner giving him opportunity to file his written objection and the Executive Council could have then decide the matter after considering the grounds taken in the reply. In case if the Executive Council disagrees with the decision of the Seniority Committee, it ought to give reasons for such disagreement. In the present case, nothing of this kind has been done. Neither has an opportunity been given to the petitioner before the Executive Council in its meeting held on 12.6.2011 nor any reasons have been given for disagreeing with the order of the Seniority Committee. As such, the order/resolution no. 39 of the Executive Council passed on 12.6.2011 deserves to be quashed.

Accordingly, this writ petition succeeds and is allowed. The impugned order/resolution no. 39 of the Executive Council passed on 12.6.2011 as well as the consequential order dated 1.7.2011 passed by the Registrar of the University are hereby quashed. The Executive Council shall decide the appeal of the respondent no. 4, in accordance with law and in the light of the observations made hereinabove. The Registrar of the University shall make every endeavour to ensure that the appeal of the respondent no. 4 is placed and decided in light of the observation made hereinabove in the next meeting of the Executive Council and in case if the same is not possible, then in the subsequent meeting held thereafter.

There shall be no order as to costs.

08.08.2011

abhiShek

(Vineet Saran, J.)

(Ran Vijai Singh, J.)