State Of Chhattisgarh vs Dr. Rohini Prasad
2022 Latest Caselaw 4234 Chatt

                                   1


                                                                    AFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                      Writ Appeal No. 318 of 2022


1.   State of Chhattisgarh Through - The Secretary, Department of
     Higher Education, Mantralaya, Mahanadi Bhawan, Atal Nagar,
     District : Raipur, Chhattisgarh

2.   The Commissioner, Surguja Division, Surguja, Ambikapur, School
     Road, Guru Nanak Chowk, Ambikapur

                                                          ---- Appellants

                                Versus

Dr. Rohini Prasad S/o Late Shri Raghuveer Prasad, aged about 60 years,
Professor, R/o FCI Colony, New Changorabhata, Raipur, District : Raipur,
Chhattisgarh

                                                        ---- Respondent

and

Writ Appeal No. 319 of 2022

1. State of Chhattisgarh Through The Secretary, Department of Higher Education, Mantralaya, Mahanadi Bhawan, Atal Nagar, District : Raipur, Chhattisgarh

2. The Commissioner, Surguja Division, Surguja, Ambikapur, School Road, Guru Nanak Chowk, Ambikapur, District Surguja, Chhattisgarh [email protected]

---- Appellants

Versus

1. Dr. Rohini Prasad S/o Late Shri Raghuveer Prasad, aged about 60 years, R/o FCI Colony, New Changorabhatha, Raipur, Chhattisgarh.

2. The Chancellor, Sant Gahira Guru Vishwavidyalaya, Address-

Chancellor Office at Raj Bhawan, Civil Line, Raipur, Chhattisgarh. Fax No.- 91-7712331108 Email- [email protected]

3. The Vice-Chancellor Cum Commissioner, Sant Gahira Guru Vishwavidyalaya, Ambikapur, Surguja, Chhattisgarh, Email- [email protected]

---- Respondents

(Cause-title taken from Case Information System)

For Appellants : Mr. Jitendra Pali, Deputy Advocate General.

For Respondent No. 1 : Mr. Dharmnarayan Dubey, Advocate along with Mr. Hemant Gupta, Advocate.

Hon'ble Shri Arup Kumar Goswami, Chief Justice

Hon'ble Shri Justice Parth Prateem Sahu, Judge

Judgment on Board

Per Arup Kumar Goswami, Chief Justice

06.07.2022

Heard Mr. Jitendra Pali, learned Deputy Advocate General for the

appellants. Also heard Mr. Dharmnarayan Dubey, learned counsel,

appearing for respondent No. 1 along with Mr. Hemant Gupta in both the

appeals.

2. In Writ Appeal No.318 of 2022, the appellants seek to assail the

common judgment dated 13.06.2022 passed by the learned Single

Judge in Writ Petition (S) No. 180 of 2020 and in Writ Appeal No. 319 of

2022, challenge is made to the same very order passed in Writ Petition

(S) No. 973 of 2020. Both the writ petitions were filed by the respondent

No.1 in these appeals.

3. The date of superannuation of the respondent No. 1 herein, in

terms of his appointment, is 10.07.2022.

4. On 24.06.2022, on the basis of submissions made by Mr. Pali on

specific instructions received from Mr. A.R. Chourey, Deputy Registrar,

Sant Gahira Guru Vishwavidyalaya, Ambikapur, for short, "the University",

that Dr. Ashok Singh and not the writ petitioner was discharging the

functions of the Vice-Chancellor of the University, status quo was

directed to be maintained till 06.07.2022, when the case was directed to

be listed. Accordingly, these two writ appeals and Writ Appeal Nos. 317

of 2022 and 321 of 2022, filed by Dr. Ashok Singh are listed together. The

appeals filed by Dr. Ashok Singh were accompanied by applications

seeking leave to appeal. Today, it is contended by Mr. Dubey that the writ

petitioner, who was removed as Vice-Chancellor had joined as Vice-

Chancellor and that submission of Mr. Pali on 24.06.2022 was not

correct.

5. Dr. Ashok Singh was appointed as Vice-Chancellor of the University

on 02.08.2021 pursuant to an advertisement dated 30.12.2020. In the

order of appointment, it was categorically mentioned that his appointment

was subject to the final outcome of Writ Petition (S) No.180 of 2020 and

Writ Petition (S) No.973 of 2020. Dr. Ashok Singh had not taken any

steps for impleading himself in the writ petitions.

6. By an order passed today, applications seeking leave to appeal are

dismissed and resultantly, Writ Appeal Nos. 317 of 2022 and 321 of 2022

were dismissed.

7. As agreed upon by learned counsel for the parties, Writ Appeal

Nos. 318 and 319 of 2022 are taken up for consideration for final

disposal.

8. In Writ Petition (S) No. 180 of 2020, challenge is made to a

notification dated 03.01.2020 and in Writ Petition (S) No. 973 of 2020,

challenge is made to a notification dated 06.01.2020 and an enquiry

report dated 24.12.2019.

9. Certain complaints were received against the writ petitioner as well

as some others by the Hon'ble Governor, who is also the Chancellor of

the University and by a letter dated 29.08.2018, the same were forwarded

to the Secretary, Department of Higher Education by the Under Secretary

to the Hon'ble Governor. It appears that pursuant to letters of the State

Government, the Divisional Commissioner, Sarguja constituted a three

member committee on 14.02.2019. Subsequently, the said committee

was dissolved and a fresh committee was constituted by the Divisional

Commissioner on 19.12.2019 with himself as the Chairman of the

committee. The Chairman of the earlier committee constituted on

14.02.2019 was the Additional Collector. The committee submitted a

report on 24.12.2019. In the said report, 11 allegations were considered.

10. The State Government being satisfied that a situation had arisen in

which the administration of the University cannot be carried out in

accordance with the provisions of Chhattisgarh Vishwavidyalaya

Adhiniyam, 1973 (for short, 'the Adhiniyam, 1973'), without detriment to

the interest of the University and that it was expedient in the interest of

the University so to do, in exercise of powers conferred by sub-section (1)

of Section 52 of the the Adhiniyam, 1973, had directed by notification

dated 03.01.2020 that the provisions of Sections 13, 14, 23 to 25, 40, 47,

48, 54 and 68 of the Adhiniyam, 1973 shall, subject to the modifications

specified in the Third Schedule, apply from the date of publication of the

notification with immediate effect to the University.

11. Subsequently, in exercise of powers conferred under modified

Sections 13 and 14 read with Section 52(3) of the Adhiniyam, 1973, the

Chancellor of the University, in consultation with the State Government,

issued a Notification dated 06.01.2020, whereby, the incumbent Vice-

Chancellor, namely, Dr. Rohini Prasad, the writ petitioner, was removed

from the office of the Vice-Chancellor with immediate effect.

12. By another Notification dated 06.01.2020, the Chancellor had

appointed Commissioner, Sarguja Division as the Vice-Chancellor of the

University with immediate effect until further orders.

13. It appears that an advertisement dated 30.12.2020 was issued for

filling up of the post of Vice-Chancellor of the University and pursuant

thereto, Dr. Ashok Singh had come to be appointed as the Vice-

Chancellor by an order dated 02.08.2021.

14. The learned Single Judge, by the Judgment dated 13.06.2022, had

allowed both the writ petitions by quashing the Notifications dated

03.01.2020 and 06.01.2020 and the enquiry report dated 24.12.2019.

However, without granting back-wages, the petitioner was held to be

entitled to all other benefits notionally.

15. By the judgment under assailment in these two appeals, the

learned Single Judge held that the impugned notifications dated

03.01.2020 and 06.01.2020, as also the enquiry were vitiated because of

violation of principles of natural justice inasmuch as no show-cause

notice was issued to the petitioner and enquiry also was conducted

without participation of the petitioner. At paragraphs 28 and 29, it was

held as follows:

"28. Taking into consideration the series of judicial

pronouncements made in the recent past some of which

referred to in the preceding paragraphs and applying the

aforesaid principle to the facts of the present case it is

apparently evident that before issuance of the notification

of the removal of the petitioner as the Chancellor of Sant

Gahira Guru Vishwavidyalaya by the respondent No.2 vide

Annexure P/2 dated 06.01.2020, there was total denial of

an opportunity of hearing. That even a show cause notice

was not issued at any point of time either during the

alleged inquiry conducted or before the order of removal

was passed. Thus, the action on the part of the

respondents both in the issuance of the notification dated

03.01.2020 as also the notification dated 06.01.2020 is hit

by the doctrine of 'audi alteram partem' in its entirety. The

petitioner stands condemned unheard coupled with the fact

that the impugned Annexure P/1 the inquiry report casts

serious stigma upon the petitioner as also of his character,

in addition the impugned notifications also shall visit him

with serious adverse civil consequences.

29. For the aforesaid reasons this Court has no hesitation

in reaching to the conclusion that the two notifications

dated 03.01.2020 and 06.01.2020 are per-se illegal, bad in

law and is also unfair and arbitrary. Thus, the same

deserves to be and is accordingly set-aside/quashed with

consequences to follow. As a consequence, both the writ

petitions stands allowed, the three impugned orders i.e. the

notification dated 03.01.2020 in WPS No. 180/2020 and

the inquiry report Annexure P/1 and the notification dated

06.01.2020 in WPS No. 973/2020 stands quashed.

However, it is made clear that since the petitioner has been

out of the said post from 06.01.2020 onwards applying the

principles of "No Work No Pay" it is ordered that the

petitioner shall not be entitled for any monetary benefits

during the intervening period, however since the order has

been held to be per se illegal, the petitioner would be

entitled for all other benefits notionally and the actual

benefits to be started from the date of this judgment in the

present two writ petitions."

16. Mr. Pali submits that Section 52(1) of the Adhiniyam, 1973 came up

consideration before the Hon'ble Supreme Court in the case of Dr.

Umrao Singh Choudhary v. State of M.P. & Another , reported in (1994)

4 SCC 328, wherein, the Hon'ble Supreme Court, in categorical terms,

had observed that the principles of natural justice stand excluded while

exercising power under Section 52(1) of the Adhiniyam, 1973.

17. It is also submitted that the State Government did not act on the

complaints straightway, but had directed to conduct a fact finding enquiry

through the Commissioner, Sarguja Division and only pursuant to such

report, on being satisfied that condition precedent for invoking Section

52(1) of the Adhiniyam, 1973 had been satisfied, recourse was taken to

exercise power under Section 52 (1) of the Adhiniyam, 1973. He has

submitted that in an enquiry of the kind that was undertaken, there was

no requirement of associating the writ petitioner. It is further submitted

that the State Government can invoke powers under Section 52 (1), on

receipt of a report or otherwise.

18. Per contra, Mr. Dubey submits that the very constitution of the

committee by the Commissioner is illegal, as under Section 14(3) of the

Adhiniyam, 1973, it is only the Chancellor, who is competent to appoint

an enquiry officer, and when the foundation falls, all subsequent actions

need to be invalidated.

19. We have considered the submissions of the learned counsel for the

parties and have perused the materials on record.

20. Section 52(1) of the Adhiniyam, 1973 reads as follows:

"52. Power of State Government to apply Act in

modified form with a view to provide for better

administration of University in certain circumstances.-

(1) If the State Government on receipt of a report or

otherwise, satisfied that a situation has arisen in which the

administration of the University cannot be carried out in

accordance with the provisions of the Act, without

detriment to the interests of the University, and it is

explained in the interest of the University so to do, it may

by notification, for reasons to be mentioned therein, direct

that the provisions of Sections 13, 14, 20 to 25, 40, 47, 48,

54 and 68 shall, as from the date specified in the

notification (hereinafter in this section referred to as the

appointed date), apply to the University subject to the

modifications specified in the Third Schedule."

21. Section 14(3) of the Adhiniyam, 1973, on which reliance is

placed by Mr. Dubey reads as follows:

14. Emoluments and conditions of service of Kulpati,

term of office of and vacancy in the office of Kulpati. -

XXX XXX XXX

(3) If at any time upon representation made or otherwise

and after making such enquiries as may be deemed

necessary, it appears to the Kuladhipati that the Kulpati-

(i) has made default in performing any duty imposed

on him, by or under this Act; or

(ii) has acted in a manner prejudicial to the interests

of the University; or

(iii) is incapable of managing the affairs of the

University the Kuladhipati may, notwithstanding the

fact that the terms of office of the Kulpati has not

expired by an order in writing stating the reasons

therein, require the Kulpati to relinquish his office as

from such date as may be specified in the order.

XXX XXX XXX

22. Modified Sections 13 and 14 read as follows:

"THE THIRD SCHEDULE [See Section 52]"

1. Sections 13 and 14. - For Sections 13 and 14

substitute:-

"14. The Kulpati. - Kulpati shall be appointed by the

Kuladhipati in consultation with the State Government and

may be removed by the Kuladhipati in the like manner."

23. The argument of Mr. Dubey that in terms of Section 14(3) of the

Adhiniyam, 1973, it is only the Chancellor who is competent to appoint an

enquiry officer, is misplaced. In the first instance, with the invocation of

Section 52(1) of the Adhiniyam, 1973, modified Section 14 would come

into play, which, as noticed earlier, only provides for appointment of Vice-

Chancellor by the Chancellor in consultation with the State Government

and that he may remove Vice-Chancellor in the like manner. That apart,

Section 14(3) only provides that enquiry may be conducted when

deemed necessary.

24. Section 52(1) of the Adhiniyam, 1973 does not envisage holding of

an enquiry, per se. Power under Section 52(1) of the Adhiniyam, 1973

can be exercised by the State Government on receipt of a report or

otherwise and having regard to the language employed, we are unable to

accept the submission of Mr. Dubey that should the State Government

decide to conduct an enquiry of a fact-finding nature into some

allegations, necessarily, the persons against whom allegations are made,

have to be associated in such enquiry. However, it must be said that the

State Government should be satisfied on objective consideration on the

material available on record that a situation had arisen in which the

administration of University could not be carried on in accordance with

the provisions of the Adhiniyam, 1973.

25. In the case of Dr. Umrao Singh Choudhary (supra), Section 52(1)

of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973, which is pari

materia with the Chhattisgarh Vishwavidyalaya Adhiniyam, 1973, had

fallen for consideration. In Dr. Umrao Singh Choudhary (supra), the

Hon'ble Supreme Court observed that by operation thereof the

applicability of Sections 13 and 14 of the Adhiniyam, 1973 stood modified

and the need to conduct a regular enquiry against the petitioner was

obviated. On issuance of the notification under Section 52(1) and on and

with effect from the said date the Vice-Chancellor, by operation of Section

52(4) shall, notwithstanding his term of office had not been expired, is

required to vacate his office.

26. The contention advanced that the petitioner therein was entitled to

be afforded an opportunity of being heard before passing the impugned

notification under Section 52(1) of the Adhiniyam, 1973 and that the order

passed in violation thereof offends the principles of natural justice was

negated by the Hon'ble Supreme Court holding that Section 52 of the

Adhiniyam, 1973 engrafts an exception thereto, and therefore, by

necessary implication, the application of principles of natural justice has

been excluded.

27. The Hon'ble Supreme Court further held that in view of the statutory

animation, the contention that the petitioner is entitled to a notice and an

opportunity before taking action under Section 52(1) of the Adhiniyam,

1973 would be self-defeating. Considering Section 52 in juxtaposition to

Section 14, the Hon'ble Supreme Court observed that the obvious

inference would be that the principle of natural justice stands excluded.

28. Therefore, setting aside the notifications dated 03.01.2020 and

06.01.2020 by the learned Single Judge on the ground that no

opportunity of hearing was given to the petitioner before issuance of the

notifications cannot be sustained.

29. In view of the above discussion, the writ appeals are allowed. The

order of the learned Single Judge is set aside. No costs.

                           Sd/-                                  Sd/-
                  (Arup Kumar Goswami)                  (Parth Prateem Sahu)
                       Chief Justice                           Judge


Brijmohan