Raviprakash Govindrao Dani vs The Chancellor, Dr. Panjabrao ...
2017 Latest Caselaw 5810 Bom

                                                    1                  J-WP-5114-17.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                       NAGPUR BENCH, NAGPUR

                          WRIT PETITION NO.5114/2017

 Raviprakash Govindrao Dani,
 Aged : 62 year, Occ : Retired
 Scientists, R/o C/o Mr.P.M.Birsiwale,
 Happy Home, Mama Road,
 Dharampeth, Nagpur - 440 010.                               ..... PETITIONER

                               ...V E R S U S...

 1. The Chancellor,
    Dr. Panjabrao Deshmukh Krushi
    Vidhyapeeth, Rajbhawan,
    Malbar Hills, Mumbai.

 2. The State of Maharashtra,
    Through its Secretary,
    Department of Revenue and
    Agriculture, Mantralaya, 
    Mumbai.

 3. Dr. Panjabrao Deshmukh Krushi
    Vidhyapeeth, through its Registrar,
    Akola.                                                   ... RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri A. S. Kilor, Advocate for the petitioner.
 Shri S. P. Dharmadhikari, Senior Counsel with Mrs. K.S. Joshi, Additional Government
 Pleader for respondent Nos.1 and 2.
 Shri A. R. Patil, Advocate for the respondent No.3.
 -------------------------------------------------------------------------------------------
                                CORAM:-    
                                            B.P.DHARMADHIKARI &
                                             ARUN D. UPADHYE, JJ.

DATED :

10/08/2017.

ORAL JUDGMENT : (PER B. P. DHARMADHIKARI, J.)

1. Looking to the nature of controversy, Rule has been

issued and made returnable forthwith by consent of parties.

Accordingly, we have heard Shri Kilor, learned counsel for the

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petitioner, Shri Dharmadhikari, learned Senior counsel with Mrs. Joshi,

learned Additional Government Pleader for respondent Nos. 1 & 2 and

Shri Patil, learned counsel for respondent No.3 - Dr. Panjabrao

Deshmukh Krushi Vidyapeeth, Akola.

2. The order dated 29th July, 2017, issued by the Governor

of Maharashtra as Chancellor of respondent No.3 - University,

terminating the services of petitioner as Vice-Chancellor of respondent

No.3 - Agriculture University, has been questioned in the present

matter.

3. It is not in dispute that the petitioner was appointed on

13th August, 2012 by the Chancellor for a term of 5 years from

14/08/2012 and otherwise his term was to expire on 13/08/2017.

4. Termination is due to the fact that the petitioner is a

Citizen of United States of America and, therefore, not eligible to

occupy the post as Vice-Chancellor.

5. Shri Kilor, learned counsel submits that in the

advertisement published in the Newspaper in April, 2012, inviting

applications for the post of Vice-Chancellor, citizenship of India was not

shown as an essential requirement. The advertisement carries reference

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to Government Orders dated 21st July, 2010 and 5th July, 2011. Neither

these orders nor Section 17 of the Maharashtra Agricultural Universities

(Krishi Vidyapeeths) Act, 1983 (hereinafter mentioned as "Maharashtra

Act") contemplate citizenship of India, as an eligibility condition. He has

invited our attention to the University Grants Commission (Minimum

Qualifications for Appointment of Teachers and Other Academic Staff in

Universities and Colleges and Measures for the Maintenance of

Standards in Higher Education) Regulations, 2010, (hereinafter referred

to as 2010 Regulations) particularly its Clause 7.3.0 dealing with the

Vice-Chancellor, to urge that there also citizenship of India is not

prescribed as an ingredient.

6. Resume given by the petitioner for consideration at the

time of applying for the post is also relied upon by him to reveal that

citizenship of United States of America with overseas citizen of India

status and life long VISA as also permission to stay / work in India, are

disclosed therein and have not been suppressed. Thus, with open eyes,

the appointment order was issued after candidature of the petitioner

was evaluated by a Committee presided over by a retired Judge of

Hon'ble Supreme Court found him fit and eligible. Hence, reason that

the petitioner is not a citizen of India, cannot stand on facts and in law.

7. Shri Kilor, learned counsel has pointed out that on

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21/12/2015, there was a complaint made to the Chancellor as also to

the Pro-Chancellor by the Citizen Forum and in it, the fact that the

petitioner is not a citizen of India was pointed out. On 22/02/2016,

comments of the petitioner upon it were called for. The petitioner gave

his reply on 09/03/2016 and made clean breast of the matter. He also

pointed out that previously in Rahuri and Parbhani Universities, similar

appointments of persons with same status were made. The Pro-

Chancellor himself, thereafter, made some complaint on 5 th April, 2016.

Another explanation of the petitioner was called for, however, in said

notice, it was expressly stipulated that no reply about citizenship was

needed. The petitioner replied to it on 20/04/2016.

8. Thereafter, there was no further development and

suddenly, the petitioner received the impugned communication. Shri

Kilor, learned counsel points out that the impugned communication

mostly places reliance upon the advice / opinions tendered by the State

Ministry for Law and Judiciary, Advocate General and Ministry of

External Affairs of Government of India. He has taken us through the

same. These documents / opinions are filed on record by respondent

Nos.1 and 2 as a part of their reply. He submits that the authorities

expressing their opinions, expressly pointed out absence of material

and, therefore, the office of the Chancellor ought to have conducted a

proper enquiry without relying upon it. He also submits that the office

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of the Chancellor, while relying upon these opinions, has selected some

part of it while other part has been conveniently ignored.

9. Inviting attention to the provisions of Section 17 of

Maharashtra Act, he argues that under sub-Section (6)(a), the

Chancellor may remove the Vice-Chancellor at any time on the charges

of neglect or for failure to carry out responsibilities. Under sub-Section

(6)(b), the Chancellor has to reach an opinion that Vice-Chancellor

omits or refuses to carry out provisions of the Maharashtra Act or

abuses the powers or that his continuation in office is detrimental to the

office of University. After reaching such satisfaction, Chancellor has to

consult the Executive Council and then by order, direct removal of Vice-

Chancellor. He submits that these ingredients and application of mind

are lacking in present matter and hence, recourse to Section 17 (6) (a)

& (b) is not possible. Even otherwise under sub-Section (6)(c), order of

removal cannot be passed unless such Vice-Chancellor is given a

reasonable opportunity of being heard in respect of the action proposed

to be taken. He submits that there was no such opportunity of hearing

extended to the petitioner.

10. Learned counsel has invited our attention to the Statute

133 to urge that the requirement of applicant being a Citizen of India is

prescribed only for the posts in University service and Vice-Chancellor is

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not included in it. The definition of "Appointing Authority of University"

in Statute 2(c) is relied upon to contend that "Vice-Chancellor" is

envisaged as "Appointing Authority" and hence, Vice-Chancellor cannot

be subjected to said Statute 133. Statute 41 dealing with classification

and method of appointment is also relied upon to show that the

appendix stipulated in clause (1) of Statute 41 does not include Vice-

Chancellor at all. The provisions contained in Statute 43, dealing with

reservation of posts in University services, is also relied upon with

similar contention. Statute 73 prescribing "Classification of Academic

Staff Members" is relied upon to urge that it is in relation to any post in

the University services and still it does not deal with Vice-Chancellor.

He contends that thus, this entire material reveals that Statute 133,

which mandates Citizenship of India, does not extend to the post of

Vice-Chancellor. Accordingly, after valid and proper advertisement, the

petitioner came to be selected and was appointed on contract. He could

not, therefore, have been discontinued under wrong and erroneous

impression.

11. Shri Kilor, learned counsel has also invited our

attention to the provisions contained in The Citizenship Act, 1955,

particularly Section 7-B (2)(a) to urge that impliedly, it shows

availability of employment to Overseas Citizen of India (OCI) like the

petitioner. He further states that in this situation, Section 7(2)(i), of

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this Act is not attracted. He submits that the petitioner was not given

opportunity on the rights made available to him by the Union of India.

12. He points out that under Section 57 of the Maharashtra

Act, contract of employment subsists for a period of five years and if its

period was to be reduced, the hearing, after proper show cause notice,

was must.

13. Shri Dharmadhikari, learned Senior counsel submits

that action against the petitioner is not under Section 17(6) of the

Maharashtra Act, it is not punitive and no stigma has been cast. The

petitioner does not plead any mala fides. As he is a Citizen of United

States of America, as per Section 7-A of the Citizenship Act, only rights

expressly conferred are available. He submits that Section 7-B of the

Citizenship Act speaks about such rights and sub-section (2) thereof

points out restrictions in this connection. Unless there is a positive

direction by Central Government specifically in case of petitioner,

allowing him a right to become Vice-Chancellor, petitioner cannot seek

any writ. In view of Section 7-B (2)(i), such a notification will be illegal

and unconstitutional. He contends that the entire controversy needs to

be viewed in this background.

14. Inviting attention to Section 13 of the Maharashtra Act,

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he points out that there, personnel in University are classified under

three heads. Under clause (a), Executives, Academic Officers and other

Officers are put. Under clause (b), Academic staff members with

academic duties are placed while ministerial staff member is placed in

last category i.e. (c). As per Scheme in Section 14, the Chancellor, the

Pro-Chancellor and the Vice-Chancellor are the Executives and

Academic Officers of University. The petitioner - Vice-Chancellor,

therefore, is in "services of University" in the light of Section 13 read

with Section 14 and, therefore, regulated by Statute 133.

15. Section 17 (3) is relied upon to urge that the Vice-

Chancellor is a whole-time salaried officer of University. Statute 133

and phrase "University Services" needs to be understood with reference

to Section 13 only. Thus, for petitioner, Citizenship of India is essential.

He points out that even for person of Indian origin who has gone out

and migrated again, a certificate of eligibility is envisaged in proviso to

Statute 133.

16. According to him, when Section 7-B of the Citizenship

Act is perused in this backdrop, absence of material mentioned by

authorities giving advice to Hon'ble Chancellor shows that there was no

right conferred on the petitioner to occupy the post of Vice-Chancellor.

Only notification dated 11/04/2005 has been issued and that

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notification by the Ministry of Home Affairs under Section 7-B (1) of the

Citizenship Act prescribes only three rights. Right of parity with Non-

resident Indian does not enable the petitioner to claim employment.

Facilities available in educational field envisaged in clause (c) of this

notification does not cover employment.

17. He, therefore, states that though the requirement of

Citizenship of India was not mentioned in the advertisement, that by

itself does not improve situation for the petitioner. That requirement

needs to be satisfied and when the fact that the petitioner does not hold

the status of Citizen of India became clear, necessary action has been

taken. His selection and appointment is / was void ab initio. No

opportunity of hearing was, therefore, necessary. He places reliance

upon the judgment of the Hon'ble Apex Court in the case of State of

Orissa and another Vrs. Mamata Mohanty, reported at (2011) 3 SCC

436 and in the case of Government of Andhra Pradesh and others

Vrs. K. Brahmanandam and others, reported at (2008) 5 SCC 241.

18. Shri Dharmadhikari, learned Senior Counsel adds that

though present petition has been filed, the petitioner has not placed

before this Court any right conferred upon him in terms of Section 7-B

of the Citizenship Act, enabling him to hold the post of Vice-Chancellor.

He, therefore, submits that in this situation, grant of an opportunity of

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hearing would have been nothing but empty formality. As the petitioner

has not pointed out any prejudice, the petition is liable to be dismissed.

He is relying upon the judgment of the Hon'ble Apex Court in the case

of Ashok Kumar Sonkar Vrs. Union of India and others, reported at

(2007) 4 SCC 54, in support of his contention.

19. Lastly, he adds that though the petitioner has

mentioned instances at Rahuri and Parbhani Universities in his reply,

details of incumbent are not furnished and hence, the same cannot be

looked into at all. As the law does not permit an OCI to occupy the post

of the Vice-Chancellor, the petition is liable to be dismissed.

20. In reply, Shri Kilor, learned counsel invites attention to

Section 37 (b), (c) and (g) of the Maharashtra Act, and submits that

Section 37 itself does not support a statute on eligibility conditions of

the Vice-Chancellor.

21. He submits that advices received by the Chancellor,

provisions relied upon by him and instances at Rahuri and Parbhani,

bring on record disputed questions of facts and law. Hence, an

opportunity of hearing ought to have been provided. Lastly, he adds

that in affidavit-in-reply filed by respondent Nos.1 and 2, they have not

expressly taken a plea that the impugned order is not issued under

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Section 17 of the Maharashtra Act. He contends that the Chancellor has

got no other source of power. Fairly, he accepted that the plea of power

with "Appointing Authority" to recall such an appointment is appearing

in the reply.

22. After hearing respective counsel, we are satisfied that

there is no dispute about the status of the petitioner as OCI. A perusal

of advertisements in response to which he participated in selection

process reveals that the petitioner was not warned of requirement of

that status. In his Bio-Data, he pointed out his USA citizenship with

status as OCI and other privileges. Thus, he did not suppress anything.

The respondents, therefore, have selected him as their Vice-Chancellor

with open eyes.

23. The Section 13 of the Maharashtra Act appear in

Chapter IV which deals with the Officers of the Universities. Section 13

classifies entire personnel into three categories. As per Section 14 (iii),

the Vice-Chancellor is a part of the Executive. Section 17 enables the

Chancellor to appoint the Vice-Chancellor. Under Section 14 (i), the

Chancellor is also a part of the Executive.

24. Statute 133 is framed in exercise of powers under

Section 38 of the Maharashtra Act. Section 38 prescribes procedure for

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making of Statute. Section 37 is on matters on which Statute can be

made. Sub-Clause (b) therein reads as under :-

Sub-Clause (b) : The (****) other conditions of service of the Vice-Chancellor and his powers and duties.

25. Shri Kilor, learned counsel relied upon clause (c) also

along with clause (g) of the Section 37 in Maharashtra Act and hence,

we find it appropriate to reproduce those clauses also.

Clause (c) : The designations, qualifications, method of recruitment, pay, allowances and other conditions of service of various categories of employees of the University, and their powers and duties.

Clause (g) : The designations, qualifications, method of recruitment, pay, allowances and other conditions of service of Professors, Associate Professors, Assistant Professors, Lecturers, Demonstrators and other categories of employees of affiliated colleges and recognised institutions, and their powers and duties.

26. Reading of these three clauses in contradistinction,

according to Shri Kilor, learned counsel shows that Statute cannot be

made on subject of classification, method of recruitment, etc. of the

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Vice-Chancellor. We find it difficult to accept the same as the portion

deleted (by Mah. 12 / 1988) from above clause (b) read "emoluments

and". Thus, before removal of these words "emoluments and", Clause (b)

empowered making of a Statute on the emoluments and other

conditions of service of the Vice-Chancellor and his powers and duties.

This clause when read with clause (c) and clause (d) (supra), cannot be

construed to mean that the Statute cannot be made prescribing

qualifications, method of recruitment, etc. of the Vice-Chancellor.

Words "other conditions of service" in clause (b) (supra) cannot be

understood to exclude facets stipulated in clause (c) and clause (g).

27. In the Statute "Maharashtra Agricultural Universities

(Krishi Vidyapeeths) Statutes, 1990, the "Appointing Authority"

prescribed is the "Vice-Chancellor". This by itself does not mean that a

post of the Vice-Chancellor is not subjected to said 1990 Statutes.

Statute 133 occurs in its Chapter XV is on Pay, Allowances, Pension,

Leave and General Conditions of Service of Employees of the

University / Affiliated Colleges / Recognized Institutions. Statute 133 is

the first provision in this Chapter which deals with "Disqualifications for

appointment". It stipulates various disqualification for appointment in

University Service. Thus, as per clause (a) (i), a person who is not

citizen of India, cannot be appointed to any post in University Service.

The emphasis is highlighted by the requirement of possessing a

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"Certificate of Eligibility" for a migrant to India in its proviso. The word

"University Service" takes into its fold all three categories mentioned in

Section 13 and the post of the Vice-Chancellor also. Chapter V is on

Academic Officers, Heads of Departments, Professors and other

equivalent posts. Statute 41 deals with Qualifications and method of

appointments. Non-mention of post of the Vice-Chancellor in this

Statute or Chapter by itself is, therefore, not decisive. Statute 43 is

prescribing percentage of Reservation. Again it does not support the

contention of the petitioner that the post of the Vice-Chancellor is not

dealt with in Statute 133. Statute 73 is on Qualifications of Academic

Staff Members. For the reasons mentioned supra, again it is of no

assistance to the petitioner in the present matter.

28. The provisions of the Citizenship Act, 1955, are of

paramount importance. Section 7-A of the Citizenship Act, 1955, is

about Registration of overseas citizen of India cardholder. The

petitioner is one such cardholder. As per Section 7-B of the Citizenship

Act, 1955, a overseas citizen of India cardholder is entitled to only such

rights which are not stated in sub-section (2), provided the same are

specified by the Central Government by notification in the Official

Gazette. This provision under sub-section (1) of Section 7-B, therefore,

shows that such rights to be specified by the Central Government,

cannot be those which are excluded under sub-section (2) thereof. Sub-

15 J-WP-5114-17.odt

section (2) points out rights to which such cardholder is not entitled. He

is not entitled to rights available to citizen of India under Article 16 of

the Constitution. He is also not entitled to appointment to public

services and posts in connection with affairs of Union or of any State

except for appointment in such services and posts as Central

Government may by special order in that behalf specify. Thus, sub-

section (2) while denying certain rights to an OCI, carve out limited

exception thereto, if it is backed by a notification of Central

Government. All rights which are available to Citizen of India cannot be

enjoyed by a person like petitioner. This sub-section (2) therefore, does

not imply that rights which are not stipulated in sub-clause (a) to (i)

thereof can be enjoyed by a cardholder like the petitioner. A joint

reading of Section 7-B(1) with sub-section (2) shows that cardholder

like the petitioner can enjoy only few such rights which may be

specified by the Central Government by notification in the Official

Gazette. The petitioner has not pointed out any such notification which

authorizes him to apply for and occupy the post of the Vice-Chancellor

of respondent No.3 - University. The contention of Shri Kilor, learned

counsel that absence of such material mentioned by various advisors to

the Hon'ble Chancellor supports the case of the petitioner is thus

erroneous. On the contrary, it adversely affects the cause of the

petitioner. Section 7-B is a provision which disqualifies cardholder like

the petitioner and an express document specifying the right to be

16 J-WP-5114-17.odt

exercised by him, must be brought on record. The petitioner has failed

to do so.

29. Section 7-B begins with non-obstante clause and it

overrides any other law for the time being in force. It, therefore, also

overrides the provision of the Maharashtra Act, which has received

assent of the Governor of Maharashtra on 22nd August, 1983. Hence,

even if contention of Shri Kilor, learned counsel founded on the absence

of stipulation of Indian Citizenship for a holder of post of the Vice-

Chancellor in advertisement for recruitment or in Statute 133 is

accepted, still because of Section 7-B of the Citizenship Act, the

petitioner cannot aspire for the post of the Vice-Chancellor of

respondent No.3 - University.

30. Shri Dharmadhikari, learned Senior counsel has rightly

submitted that advice furnished by various departments or by the

learned Advocate General to respondent No.1 - Chancellor, need not be

looked into. We are, therefore, avoiding to appreciate it either way. The

discussion above shows that the office of respondent No.1 - Chancellor

has approached the controversy in right perspective. Correctness of

recourse to Section 7-B (i) of Citizenship Act to unsit the petitioner is

not demonstrated to be bad.

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31. The petitioner does not point out any stigma and no

arguments in that regard are advanced. The petitioner has also not

placed on record any Gazette Notification or order issued by the Central

Government enabling / authorizing him to occupy the post of the Vice-

Chancellor. It is, therefore, apparent that no prejudice has been caused

to him by denying opportunity of hearing. Moreover, the petitioner has

claimed such an opportunity, because of Section 17 (6) of the

Maharashtra Act. Sub-section 6(a) or (b) envisage some misconduct or

administrative error on the part of the Vice-Chancellor. Thus, when for

such an error or mistake, bordering on line of "misconduct", action is to

be taken by the Chancellor, the procedure prescribed therein needs to

be adhered to. In that event, reasonable opportunity of being heard

should be granted. Here, there are no aspersions on integrity or ability

of the petitioner. Absence of status or eligibility in him is only used to

point out the disqualification. As held supra, his record is unblemished.

The petitioner also does not allege mala fides against anybody. Section

17, therefore, does not have any role to play. The office of respondent

No.1 has rightly, in impugned order dated 29 th July, 2017, not invoked

Section 17 (6) of the Maharashtra Act.

32. In the case of State of Orissa and another Vrs.

Mamata Mohanty (supra) in para 37, the Hon'ble Apex Court has

pointed out that an order which is bad in its inception, does not get

18 J-WP-5114-17.odt

sanctified at a later stage. The observation in paras 40 and 41 also show

that the absence of essential qualification results in lack of basic

eligibility which cannot be cured later on. The observation of the

Hon'ble Apex Court in the case of Government of Andhra Pradesh and

others Vrs. K. Brahmanandam and others (supra) shows that no writ

can be issued in the matters where appointment is in violation of

mandatory provisions and void. In the case of Ashok Kumar Sonkar

Vrs. Union of India and others (supra), the Hon'ble Apex Court has

reiterated settled law that court of law does not insist on compliance

with useless formality. It has explained that compliance with principle

of audi alteram partem cannot be insisted upon, unless prejudice is

shown. It need not be invoked where grant of hearing would be a futile

exercise.

33. In the present matter, the provisions of Section 7-B of

the Citizenship Act, 1955, did not and do not permit the petitioner to

aspire for the post of the Vice-Chancellor with respondent No.3 -

University. Moreover, even as per Maharashtra Act, the Vice-Chancellor

needs to be a Citizen of India. Admittedly, the petitioner is not a Citizen

of India. In these facts, grant of hearing to the petitioner cannot result

in any relief to him. The contract entered into with him under Section

57 of the Maharashtra Act is itself void and unsustainable. Though, we

cannot blame the petitioner in this situation, no benefit can also be

19 J-WP-5114-17.odt

extended to him. Use of word "termination" at the end of the impugned

order by the office of the Chancellor only means termination of services

i.e. contract. Therefore, it does not vitiate the action. In earlier para of

impugned order, it has been expressly mentioned that the Chancellor

possesses power to appoint the Vice-Chancellor and that power includes

power to remove him also. It is also mentioned that the appointment

has become void ab-initio. The office of the Chancellor did issue

necessary show cause notice, obtained reply from the petitioner. It also

obtained opinion from the Ministry of Law and Judiciary, Ministry of

External Affairs of Union of India and from the learned Advocate

General for the State of Maharashtra. A perusal of impugned order

reveals that after studying the opinions so received, the decision was

reached and action has been taken. Which part of such legal advice,

should be mentioned in the order and how or to what extent it should

be reproduced is the prerogative of that office. No right of the petitioner

is violated thereby. Office of the Chancellor has adopted a fair

procedure and given necessary opportunity to the petitioner in the

matter. Even otherwise, his tenure was to expire on 13 th August, 2017.

So, he has hardly lost service of two weeks in the process. Petitioner,

knowing fully well his status as an OCI and import of Section 7-B of

Citizenship Act, ought to have been more cautious or vigilant in the

matter. However, this observation applies with full vigour to the

Respondent No.3 also. Hence, neither he nor the respondents can be

20 J-WP-5114-17.odt

blamed for the recruitment and its termination.

34. We therefore, find no case made out for warranting

interference. Writ petition is accordingly dismissed. Rule discharged. No

order as to costs.

                JUDGE                                                    JUDGE


 Choulwar