Allahabad High Court
C/M Bappa Shri Narain Vocational Post ... vs State Of U.P. Thru. Its Addl. Chief Secy. ... on 29 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:40830
AFR
Court No. - 20
Case :- WRIT - A No. - 4314 of 2024
Petitioner :- C/M Bappa Shri Narain Vocational Post Graduate College Thru. Manager Sri Sanjeev Sharma And Another
Respondent :- State Of U.P. Thru. Its Addl. Chief Secy. Deptt. Of Higher Edu. U.P. Civil Sectt. Lko. And 5 Others
Counsel for Petitioner :- Lalta Prasad Misra,Prafulla Tiwari
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Meenakshi Singh Parihar
Hon'ble Shree Prakash Singh,J.
1. Heard Dr. L.P. Mishra, learned Counsel assisted by Shri Prafulla Tiwari, learned Counsel for the petitioner, Shri H.G.S Parihar, learned Senior Counsel assisted by Mrs. Meenakshi Singh Parihar, learned Counsel for the respondent University, Shri Ashutosh Mishra, learned Standing Counsel for the State and Shri Anurag Kumar Singh, learned Counsel for the opposite party no. 6.
2. Under challenge is the order dated 15.05.2024 passed by the opposite party no. 3, as well as, the order dated 21.05.2024 passed by the opposite party no. 5.
3. The contention of learned Counsel for the petitioner is that the impugned order dated 15.05.2024 has been passed by the Vice Chancellor of the respondent University without affording opportunity of hearing to the petitioner and that is only on the basis of a report of an enquiry Committee constituted by the Vice Chancellor, which is the very basis of revocation of the order of suspension. He added that the provision of Section 35(4) of the U.P. State Universities Act, 1973 (herein after referred to as 'Act, 1973') clearly provides that an order of suspension, pending enquiry can be revoked, stayed or modified by the Vice Chancellor and there is provision regarding delegation of powers to any authority. Section 35(4) of the Act, 1973 is reproduced hereunder:-
"35. Conditions of service of teachers of affiliated or associated colleges other than those maintained by Government or local authority.--.....................
............(2) Every decision of the Management of such college to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner shall before it is communicated to him, be reported to the Vice-Chancellor and shall not take effect unless it has been approved by the Vice-Chancellor:
Provided that in the case of colleges established and administered by a minority referred lo in clause (1) of Article 30 of the Constitution of India, the decision of the management dismissing removing or reducing in rank or punishing in any other manner any teacher shall not require the approval of the Vice- Chancellor, but, shall be reported to him and unless he is satisfied that the procedure prescribed in this behalf has been followed, the decision shall not be given effect to.
..................(4) Nothing in sub-section (2) shall be deemed to apply to an order of suspension pending inquiry, but any such order may be stayed, revoked or modified by the Vice-chancellor:
Provided that in the case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, such order may be stayed, revoked or modified by the Vice-Chancellor only if the conditions prescribed for such suspension are not satisfied."
4. He submitted that it is so long settled that if an authority is empowered to take decision, the decision will be taken by the said authority, not anyone else but in the present matter, the enquiry Committee appointed by the Vice Chancellor, submitted a report and only referring the report of the Committee, the Vice Chancellor has passed the impugned order dated 15.05.2024 which clearly indicates that there is no application of mind by the Vice Chancellor.
5. Adding to his submissions, he stated that though liberty of hearing was afforded by the Committee but so far as the Vice Chancellor, who is empowered under Section 35(4) of the Act, 1973, did not afford any opportunity of hearing to the petitioner and therefore, the order dated 15.05.2024 is also in contravention of the settled proposition of law. He has also submitted that in fact, the germaine of the ground for revocation of the suspension order has also not been discussed and taken care of by the Vice Chancellor while passing the impugned order, therefore, the order is unsustainable.
6. On the other hand, Shri H.G.S. Parihar, learned Senior Counsel opposed the contentions aforesaid and submitted that the opportunity of hearing was afforded by the enquiry Committee, constituted by the Vice Chancellor and from the order impugned, it is apparent that the report of the Committee has thorougly been considered by the Vice Chancellor and then the order of suspension is revoked and thus, there is no ambiguity or erroneousness in the order passed by the Vice Chancellor.
7. He argued that the Committee has worked as fact finding Committee but, ultimately, the decision is taken by the Vice Chancellor, therefore, the order dated 15.05.2024 is in consonance with the provisions of Section 35(4) of the Act, 1973.
8. Considering upon the submissions advanced by learned Counsel for the parties and after perusal of the material placed on record, it transpires that the order passed by the Vice Chancellor dated 15.05.2024 is under challenge, on the premises that the Vice Chancellor without affording any opportunity to the Committee of Management has passed the order and the Vice Chancellor has delegated the power to the Committee appointed by him, though, the provision of Section 35(4) empowers the Vice Chancellor to pass order.
9. When this Court examines the aforesaid matter in facts and law, it transpires that after an application was received by the Vice Chancellor, he constituted three member enquiry Committee, who after affording the opportunity of hearing to the Committee of Management, submitted its report to the Vice Chancellor and the Vice Chancellor has taken a decision while revoking the suspension order. From the perusal of the provision under Section 35(4) of the Act, 1973, it is amply clear that the provision provides the power / authority to the Vice Chancellor for modification, revocation and stay of suspension order and as per the settled proposition of law, if the provision prescribes to do a thing in a particular manner that has to be done in a manner itself, not otherwise, and therefore, delegating the power to the Committee, is against the provision of Section 35(4) of the Act, 1973. It is so long settled law in Nazir Ahmad's case.
10. The law enunciated by Privy Council in Nazir Ahmad Vs. King Emperor reported in 1936 SCC Online PC 41 wherein it was held that "there where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
11. Further, a three judge Bench of this Court in a judgment reported in (1999) 8 SCC 266; Chandra Kishore Jha Vs. Mahavir Prasad & Ors., has held as follows:-
"17... .It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage: Nazir Ahmad v. King Emperor [(1935- 36) 63 IA 372 AIR 1936 PC 253 (II)], Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322 1954 SCR 1098], State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57].) An election petition under the rules could only have been presented in the open court up to 16-5- 1995 till 4.15 p.m. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done.........."
12. The above said principle has also been followed in Cherukuri Mani Vs. Chief Secretary, Government of Andhra Pradesh & Ors., reported in (2015) 13 SCC 722, wherein the Court held as under:-
"14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure........."
13. Further, from perusal of the impugned order dated 15.05.2024, it also transpires that the Vice Chancellor while revoking the suspension order did not mention any reason and therefore, it seems that only on the basis of the report of the enquiry Committee constituted by the Vice Chancellor, the order has been passed, and therefore, the same is not only against the provision prescribed under the Act, 1973 but that is also in contravention to the settled provisions of law.
14. It's so long settled that every order either administrative or judicial must stand on its own legs. The constitutional Bench of Hon'ble Apex Court in the case of Mohindhr Singh Gill and another Vs. Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405, has very categorically held as under:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older."
15. In view of the aforesaid submissions and discussion, the order dated 15.05.2024, as well as, the consequential order dated 21.05.2024, are hereby quashed.
16. The writ petition is allowed accordingly, at the admission stage.
17. The matter is relegated back to the opposite party no. 3 to proceed a fresh while adhering to the provisions of Section 35(4) of the Act, 1973 and take decision afresh, within a period of eight weeks.
18. Needless to say that the opposite party no. 6 shall also cooperate with the proceedings as noted above.
Order Date :- 29.5.2024
Anurag
