Mrs. Vandana W/O Nandkishore ... vs Rastrasant Tukdoji Maharaj ...
2017 Latest Caselaw 4863 Bom

 WP 1152.16.odt                               1
   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

                      WRIT PETITION NO.1152 OF 2016


 Mrs. Vandana w/o Nandkishore Khedikar,
 Aged about 47 years,
 Occupation - Service,
 R/o. 101, Shivaji Nagar,
 Nagpur.                         ..                                 PETITIONER


                               .. VERSUS ..


 1]     Rastrasant Tukdoji Maharaj Nagpur
        University Nagpur, Ravindranath
        Tagore Road, Civil Lines, Nagpur,
        Through its Registrar.

 2]     The Hon'ble Chancellor,
        Rastrasant Tukdoji Maharaj,
        Nagpur University, Nagpur,
        Ravindranath Tagore Road,
        Civil Lines, Nagpur.

 3]     Dr. Mrs. Muktadevi w/o Prashant Mohite,
        Aged about 50 years,
        Occupation - Service,
        R/o. Plot No.588, New Nandanvan
        Layout, Behind N.I.T. Complex,
        Nandanvan Nagpur,
        Tahsil and District - Nagpur.    ..     RESPONDENTS



                               ..........
 Mrs. R.S. Sirpurkar, Advocate for Petitioner,
 Shri R.D. Bhuibhar, Advocate for Respondent Nos.1 and 2,
 Shri B.G. Kulkarni, Advocate for Respondent No.3.
                               ..........



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  WP 1152.16.odt                               2

                               CORAM : KUM. INDIRA JAIN, J.

DATED : JULY 21, 2017.

ORAL JUDGMENT

Rule. Rule made returnable forthwith. Heard

finally with the consent of the learned counsel for parties.

2] This petition takes an exception to the

communication/order dated 12.3.2015 issued by respondent

no.2 informing the petitioner that no justification is found to

interfere with the decision taken by University authorities in

the matter of selection and the appointment of respondent

no.3.

3] The facts giving rise to the petition may be stated

in brief as under :

Petitioner challenged the appointment of

respondent no.3 to the post of Associate Professor (Fine

Arts) under Section 76 (7) of the Maharashtra Universities

Act, 1994. Petitioner had applied for the said post pursuant

to an advertisement. Vide impugned communication/order,

it was informed to petitioner that respondent no.2 did not

find any justification to interfere with the decision taken by

the University authorities in the matter of selection and

appointment of respondent no.3 to the post of Associate

Professor (Fine Arts). Being aggrieved, petitioner has

assailed the said order in this writ petition.

4] Mrs. Sirpurkar, learned counsel for petitioner

submits that the order passed by respondent no.2 is against

the principles of natural justice. No hearing has been given

to petitioner nor petitioner was given copies of

report/clarification and the documents which were received

by respondent no.2 from University authorities. Submission

is that such an order is in flagrant violation of principles of

natural justice and deserves to be set aside.

5] The next contention is that respondent no.2 was

exercising quashi-judicial powers and while dismissing the

petition, no reasons have been recorded. According to

learned counsel, order without reasons, can sustain and

needs to be set aside. In support of submissions, learned

counsel placed reliance on the decision of the Hon'ble

Supreme Court in (1) Indian National Congress (I) .vs.

Institute of Social Welfare and others [(2002) 5 SCC

685] and (2) judgment of the learned Single Judge at

Aurangabad Bench in Dr. Shailaja d/o Bhujangrao

Wadikar .vs. The Hon'ble Chancellor and another

[2013 (6) ALL MR 741].

6] Per contra, Shri Bhuibhar, learned counsel for

respondent nos.1 and 2, submitted that personal hearing is

not contemplated u/s 76 (7) of the Maharashtra Universities

Act, 1994 and the Hon'ble Chancellor passed the order

considering the report submitted by the Vice Chancellor in

the matter. It is submitted that appointment of respondent

no.3 was in accordance with the law and having found so

petitioner was informed about the same.

7] Shri Kulkarni, learned counsel for respondent no.3

supports the communication/order dated 12.3.2015 as also

submissions made on behalf of respondent no.2.

8] The limited controversy revolves round Section 76

(7) of the Maharashtra Universities Act, 1994. For the sake

of convenience, it is reproduced as under :

Section 76 : Selection and appointment of university teachers :

(7) If, on a petition by any person directly affected, or suo motu, the Chancellor, after making or having made such inquiries or

obtaining or having obtained such explanations, including explanations from the teachers whose appointments are likely to be affected, as may be or may have been necessary, is satisfied that the appointment of a teacher of the university, made by any authority or officer of the university at any time was not in accordance with the law at that time in force, the Chancellor may, by order notwithstanding anything contained in the contract relating to the conditions of service of such teacher, direct the Vice- Chancellor to terminate his appointment after giving him one month's notice or one month's salary in lieu of such notice, and the Vice- Chancellor shall forthwith comply and take steps for a fresh selection to be made. The person whose appointment has been so terminated shall be eligible to apply again for the same post.

9] In identical set of facts, the learned Single Judge of

this court at Aurangabad Bench in case of Dr. Shailaja d/o

Bhujangrao Wadikar (supra) observed in paragraphs 19

to 34 as follows :

19. Bare reading of Section 76(7) it is manifest that the Chancellor has to act judicially. The Chancellor has to arrive at a conclusion that the appointment of the teacher made is in "accordance with the law", at that time in force. If the Chancellor comes to the conclusion that the appointment of the teacher was not in "accordance with law", at that time in force, the Chancellor has to direct the Vice Chancellor to terminate the appointment of such teacher and the Vice Chancellor is not left with any discretion but has to forthwith comply the said direction of the Chancellor and has to take steps for fresh selection. Section 76(8)

further mandates that the order made by the Chancellor under Section 76(7) shall be final. The provisions of Section 76(7) of the Act has been invoked by the petitioner by filing a petition before the Chancellor.

20. The order passed U/s 76(7) by the Vice Chancellor prejudicially affects a party. If the Chancellor is satisfied that the appointment of the teacher was not in accordance with the law, it can direct the Vice Chancellor to terminate the appointment of such teacher. In such an event fresh selection process has to be undertaken and in said selection process petitioner and Respondent No.4 can participate. Naturally, such an order would be prejudicially affecting a party. The decision of the Chancellor can prejudicially affect the party.

21. Much emphasis was laid by the learned Senior counsel for Respondent No.1 while contending that the proceedings are administrative on the fact that the Chancellor while exercising powers U/s 76(7) "directs" the Vice Chancellor and does not pass any "order" or a decision.

22. The said distinction sought to be drawn is illusory. An order is more general term which would embrace within its fold the words direction or direct. To direct may mean an order issued to a particular individual or a precept which is to be followed. It may be a specific or a general order. Direction is in the nature of command. An "Order" as per Black Law Dictionary is defined as a mandate, precept, a command or direction authoritatively given. As such it is no gainsay that the phraseology used in the provision is direction and not "Order". The same would not make any difference. Moreover, sub-section 8 of Section 76 further clarifies that direction given by Chancellor is in the nature of order. It states that an "Order" made by the Chancellor under the past preceding sub-section shall be final.

23. In light of the same, I have no hesitation to hold that the term "direct" as appearing in Section 76(7) is in the nature of "order".

24. The aim of both a quasi judicial function as well as administrative function is to arrive at a just decision. The principles of natural justice hold good irrespective of whether the power conferred on a statutory body, tribunal or an authority is administrative or quasi judicial. The idea of natural justice is fair-play in action. It has to apply to both quasi judicial and administrative function and from that point of view the distinction between the two loses its significance.

25. In the present case, the petitioner is not given any opportunity of hearing nor any explanation has been called from the petitioner after the Chancellor received the report and the documents from the Respondent No.3.

26. The Chancellor in his order has observed that after going through the issues raised by the present petitioner in her petition and the factual report/clarification as also the documents received from the Vice Chancellor, the Chancellor does not find any justification to interfere with the decision taken by the University authorities in the matter of selection and appointment of Dr. D.S.Jadhav, to the post of Associate Professor in English in the Swami Ramanand Teerth Marathwada University. This would show that the Chancellor formed his opinion on the basis of the petition filed and the report/clarification and the documents received from the Vice Chancellor. Section 76(7) requires an inquiry and obtaining explanations. The petition was filed by the petitioner - an aggrieved person raising various issues. The Chancellor formed his opinion after receiving the report and the documents from the Vice Chancellor. The petitioner was never given the copy of the report and the documents which were relied on while passing the impugned order by the Chancellor. The petitioner ought to have been given an

opportunity to explain or put forth his case to the report and the documents submitted by the Vice Chancellor, more particularly, when the Chancellor was deciding against the petitioner. That would have suggested fair-play in action. It was duty of the Chancellor to act fairly, more particularly, when the finality is attached to the order of the Chancellor by virtue of sub-section (8) of Section 76 of the Act.

27. In view of the above premise, I hold that while entertaining and deciding the proceedings under sub-section (7) of Section 76, the Chancellor is required to adhere to the principles of natural justice.

28. After having held that the principles of natural justice are required to be adhered to, the next question would be the manner and extent, the principles of natural justice are required to be observed. Section does not speak about affording opportunity of personal hearing. The provision speaks about calling for an explanation from the parties. It is no doubt a principle of natural justice that an authority can not make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. The opportunity to meet out the averments, comments and the report submitted by the Vice Chancellor can be by written representation also. Whether the said opportunity should be by a written representation or by personal hearing depends upon the facts of each case as has been held by the Apex Court in a case of "Madhya Pradesh Industries Vs. Union of India" reported in AIR 1966 Supreme Court 671 and in a case of "J.A. Naiksatam .Vs. Prothonotary and Senior Master, High Court of Bombay and others" reported in (2004) 8 SCC 653 : [2005 (5) ALL MR 140 (S.C.).

29. In the present case also the provision lays down of obtaining such 'explanations'. The

principles of natural justice would be satisfied if after the report and clarification is received by the Chancellor, opportunity is given to the petitioner to put forth his case by written explanation to the said report and the clarifications received by the Chancellor. To that extent the principles of natural justice are required to be adhered to. Personal hearing to the petitioner would not be necessary nor is contemplated under the said provision. However, in the present case, the opportunity to give explanation to the report/clarification and the documents is not extended to the petitioner. On this count, the order of the Chancellor impugned can not be sustained.

30. There is another facet to the case. The order does not spell out any reasons or the basis on which the Chancellor arrived at the satisfaction regarding legality of the appointment of Respondent No.4.

31. Proper reasoning is an imperative necessity. The statement of reasons not only makes the decision easier for the parties to understand and many a time such decision would be accepted with respect. The requirement of providing reasons obliges the authority to satisfy the points that justify the decision and make it lawful. Every order must contain reasons in support of it. Reasons are link between materials on which certain conclusions are based and the actual conclusion. They disclose how the mind is applied to the subject matter for a decision. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. The Courts insist upon disclosure of reasons in support of the order on three (3) grounds:

(i) The party aggrieved has an opportunity to demonstrate before the Court that the reasons which persuaded the authority to reject his case were erroneous.

(ii) The obligation to record reasons operates as deterrent against the possible arbitrary action.

(iii) It gives satisfaction to the party against whom the order is made.

32. The rule requiring recording of reasons must be observed in letter and spirit. Mere pretence of compliance by vague and general words is not enough. Though reasons need not be elaborate and extensive, all the same, they must be clear, explicit and intelligible. Reasons are the life line of any order. The order should reflect the application of mind of the authority while passing the said order and it is the reasons which would depict the same.

33. The impugned order is sans any reasons. If natural justice is not followed and while dismissing the petition reasons are not given then the right given to an aggrieved persons to approach the Chancellor U/s 76(7) would be rendered illusory.

34. As the order is passed without adhering to principles of natural justice and is bereft of any reason the same can not be sustained and deserves to be set aside.

10] From the above and on careful reading of

provisions of Section 76 (7) of the Maharashtra Universities

Act, it is crystal clear that the provisions speak about

calling for an explanation from the parties. It means an

authority cannot make any decision adverse to a party

without giving him/her an opportunity of meeting relevant

allegations against him/her. The opportunity to meet out

the averments, comments and the report submitted by the

Vice Chancellor can be by written representation also. It is

now a settled position that an opportunity of personal

hearing is to be given or not depends upon the facts of each

case.

11] In the above background and as impugned

communication/order is sans reasons and principles of

natural justice have been violated while dismissing the

petition, this court is of the view that the order is not

sustainable and needs to be interfered in writ jurisdiction.

Hence, the following order :

(i) Writ Petition No.1152 of 2016 is allowed.

(ii) Communication/order dated 12.3.2015 is quashed and set aside.

(iii) Matter is remitted to respondent no.2 for decision a fresh in the light of the observations made hereinabove.

(iv) Rule is accordingly made absolute in the above terms.

 (v)            No order to costs.



                                        (Kum. Indira Jain, J.)
 Gulande, PA