Bombay High Court
Mrs. Vandana W/O Nandkishore ... vs Rastrasant Tukdoji Maharaj ... on 31 March, 2017
Bench: B.P. Dharmadhikari
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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, Occ - Service,
resident of 101, Shivaji Nagar,
Nagpur. ....PETITIONER.
VERSUS
1. Rashtrasant Tukdoji Maharaj Nagpur
University, Nagpur Ravindranath
Tagore Road, Civil Lines, Nagpur
through its Registrar.
2. The Hon'ble Chancellor,
Rashtrasant Tukdoji Maharaj Nagpur
University, Nagpur Ravindranath
Tagore Road, Civil Lines, Nagpur.
3. Dr. Mrs. Muktadevi w/o Prashant Mohite,
Aged about 50 years, Occ - Service,
resident of Plot no.588, New Nandanwan
Layout, Behind N.I.T. Complex,
Nandanwan Nagpur, Tahsil and
District Nagpur. ....RESPONDENTS
.
-----------------------------------
Mrs. R.S. Sirpurkar, Advocate for Petitioner.
Mr. R.Bhuibar, Advocate for Respondent Nos.1 & 2.
Mr. B.G. Kulkarni, Advocate for Respondent No.3.
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CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
Date of Reserving the Judgment : 20.03.2017
Date of Pronouncement : 31.03.2017
JUDGMENT (ON REFERENCE). (Per B.P. Dharmadhikari, J)
By this petition under Article 226 of the Constitution of India,
petitioner questions order/communication dated 12.03.2015, issued by the
Hon'ble Chancellor, Rashtrasant Tukdoji Maharaj Nagpur University
(Respondent no.2) refusing to intervene and entertain her complaint /
petition under Section 76[7] of the Maharashtra Universities Act, 1994
(hereinafter referred to as "the 1994 Act" for short) against the
appointment of respondent no.3. The Deputy Secretary to government has
communicated the decision stating that there was no justification found to
interfere with the decision taken by the University Authorities in the matter
of said selection and appointment.
2. Petition was listed before Division Bench of this Court on
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02.03.2016, and came to be adjourned to 11.03.2016. On 11.03.2016, it
came up before other Bench and the Bench directed Registry to verify
whether petition needed to be placed before the learned Single Judge. On
16.03.2016, Registry pointed out that challenge was covered under Rule
18[3] of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960
(hereinafter referred to as "the 1960 Rules" for short) and therefore,
needed to be placed before the learned Single Judge. On 01.04.2016, the
learned Single Judge issued notice. On 23.01.2017, the matter came up
before the other Single Judge who directed the Registry to place the matter
before Division Bench to find out whether the impugned order was a quasi
judicial in nature or not ?
The order of learned Single Judge dated 23.01.2017, reads as
under :
" By the order passed on 11.03.2016, the
Division Bench directed the office to verify whether the
petition would lie before the Single Judge. Accordingly,
the office has endorsed that the impugned order is quasi-
judicial order and the petition is placed before the Single
Judge.
In my view, considering the controversy in the
petition, it would be appropriate that the Division Bench
considers whether the impugned order/ decision is quasi-
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judicial for the purpose of Chapter XVII Rule 18 of the
Bombay High Court Appellate Side Rules, 1960.
Office to place the matter before the Division
Bench for appropriate orders."
Registry has therefore placed the matter before this Bench.
3. Accordingly we have heard learned counsel for the parties.
Pleadings and prayers are perused with their assistance. They have taken us
through provisions of Section 76 of the 1994 Act, as also the 1960 Rules.
They have also relied upon the judgment of Hon'ble Supreme Court reported
at (2015) 5 SCC 423 (Radhey Shyam and another .vrs. Chhabi Nath and
others), a Division Bench order dated 03.08.2011 in Writ Petition No. 4065
of 2010 (Shri Shivaji Education Society, Amravati and another .vrs.
Maharashtra University of Health Sciences and others) and a reported
judgment of learned Single Judge of this Court reported at 2013 (6) All MR
741 ( Dr. Shailaja Bhujangrao Wadikar .vrs. The Hon'ble Chancellor and
another).
4. Provisions of Chapter XVII Rule 18 of the 1960 Rules deals with
powers of Single Judge to finally dispose of applications under Article 226 or
227. Orders passed under various enactments which can be thus looked into
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by the learned Single Judge, are specified therein. At Sr.No.41, orders
passed under 1994 Act find mention. Expression "Order" employed in Rule
18 as per explanation thereto means any order passed by any judicial or
quasi-judicial authority empowered to adjudicate under various enactments
mentioned in that Rule. Thus, any order passed by any judicial or quasi-
judicial authority empowered to adjudicate under 1994 Act needs to be
assailed by filing a petition before the learned Single Judge of this Court.
5. Judgment of Hon'ble Supreme Court in case of (Radhey Shyam
and another .vrs. Chhabi Nath and others (supra), particularly discussion
therein in paragraph no.10[7] shows that whenever any body of persons
having legal authority in law to determine questions affecting the rights of
subjects, and having the duty to act judicially, acts in excess of that
authority, it is subject to the controlling jurisdiction in writ. In paragraph
no.11 the Hon'ble Supreme Court states that the expression "judicial acts"
does not refer to judicial orders of civil courts as the matter before the
Hon'ble Supreme Court in which said expression was used arose out of
orders of Election Tribunal. The Hon'ble Supreme Court also points out that
except its judgment in case of Surya Dev Rai .vrs. Ram Chander Rai reported
at (2003) 6 SCC 675, when the question as to scope of jurisdiction arose, it
was clarified that orders of judicial courts stood on different footing from
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quasi-judicial orders of the Authorities or Tribunals.
6. In Writ Petition No. 4065 of 2010 (supra), the employer had
questioned report submitted by the Grievance Committee to Management
Council under the provisions of Maharashtra University of Health Sciences
Act, 1998. Question was - Whether matter should be considered by the
learned Single Judge ? After considering various judgments, on 03.08.2011
this Court held that the controversy needed to be placed before learned
Single Judge. One of us (B.P. Dharmadhikari, J) is party to that judgment.
Discussion in paragraph no.6 onwards upto to paragraph no.10 is applicable
and attracted even in present matter.
7. Section 76[7] of the 1994 Act reads as under :
"76 (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
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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 company 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."
8. Thus, when the power is used, it affects civil right of a person
already appointed or employed. When this sub-section [7] is read with sub-
sections [8] and [9], consequences are such person against whom power is
used is, therefore thrown out of service, though there is no stigma cast upon
him. Not casting stigma by itself would not mean that there are no civil
consequences. The Hon'ble Chancellor may exercise the powers on receipt
of representation/complaint or even suo motu. Opportunity needs to be
given to such person who is likely to be affected and for that purpose,
inquiry is also contemplated. Obtaining of explanation is also expressly
provided for. Such proceedings result into civil consequences, and therefore,
expect compliance with principles of natural justice, by giving affected
person an opportunity to submit explanation. Opportunity to explain and an
inquiry, therefore, shows inbuilt mechanism with principles of natural justice
inherent in it. Merely because the office of Hon'ble Chancellor rejects the
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prayer and upholds the selection, nature of power and jurisdiction does not
undergo any change.
9. We need not comment more on this sub-section [7] of Section 76
of the 1994 Act, as precisely very same provision and very same issue arose
before the learned Single Judge at Aurangabad in case of (Dr. Shailaja
Bhujangrao Wadikar .vrs. The Hon'ble Chancellor and another (supra). There,
the learned Single Judge has interpreted the provisions and after looking
into various judgments, in paragraph nos. 33 and 34 found that principles of
natural justice were not followed and there were no reasons recorded. The
impugned order of refusing to intervene was therefore, in that matter
quashed and set aside and matter was placed back before the Hon'ble Vice-
Chancellor. Discussion therein is squarely attracted here.
10. In the light of this discussion, we find that the matter has been
rightly placed before the learned Single Judge of this Court.
11. Registry to proceed further accordingly.
JUDGE JUDGE
Rgd.
