Gujarat High Court
Girish Jivrambhai Thakkar vs Hemchandracharya North Gujarat ... on 24 March, 2021
Bench: Sangeeta K. Vishen
C/SCA/15213/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15213 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GIRISH JIVRAMBHAI THAKKAR
Versus
HEMCHANDRACHARYA NORTH GUJARAT UNIVERSITY & 2 other(s)
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Appearance:
MR BHARGAV HASURKAR(5640) for the Petitioner(s) No. 1
MR ROHAN SHAH AGP (1) for the Respondent(s) No. 2
MR SIDDHARTH H DAVE(5306) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 24/03/2021
ORAL JUDGMENT
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1. With the consent of the learned advocates for the respective
parties, the matter is taken up for final hearing.
2. Issue Rule, Mr. Siddharth Dave, learned advocate waives service
of Rule on behalf of respondent No.1 and Mr. Rohan Shah, learned
Assistant Government Pleader waives service of Rule on behalf of
respondent Nos.2 and 3.
3. By this petition, inter alia, under Article 226 of the Constitution of
India, the petitioner has prayed for quashing and setting aside the
advertisement dated 27.7.2017 qua the post of Controller of
Examination. The petitioner has also prayed for quashing and setting
aside the order of termination dated 4.7.2015 passed by the
Hemchandracharya North Gujarat University i.e. respondent No.1
(hereinafter referred to as "the University") on the ground that the same
is illegal and bad in law, it having been passed without following due
process of law namely, the University Statute so also, in contravention
of the University Grants Commission Regulations dated 28.06.2010
(herein after referred to as the Regulations of 2010").
4. The facts, discernible from the record, are as under:
4.1. According, to the petitioner, after publication of the advertisement
dated 1.4.2013, the Executive Committee of the University had resolved
to constitute a Selection Committee which, after following the Rules and
Regulations, selected the petitioner for the post of Controller of
Examination, which aspect is duly recorded in the minutes of the
Executive Committee meeting dated 9.7.2013 and accordingly the
petitioner was appointed vide order dated 26.7.2013. The University
thereafter, on 4.7.2015, without issuing any notice or even without
offering an opportunity of hearing, abruptly terminated the service of the
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petitioner therefore, the action of the University was in clear breach of
principles of natural justice.
4.2. The petitioner being aggrieved, had preferred Appeal No.101 of
2015 before the Gujarat Educational Institutions Services Tribunal
(hereinafter referred to as "the Tribunal") under the provisions of
Section 11 of the Gujarat Educational Institutions Services Tribunal Act,
2006 (hereinafter referred to as the "Act of 2006") seeking declaration
that the action of the University in not accepting the appointment of the
petitioner is illegal and against the provisions of the University Act and
Regulations of 2010 and therefore, the same deserves to be quashed
and set aside.
4.3. During the pendency of Appeal No.101 of 2015 before the
Tribunal, the University had issued an advertisement dated 27.7.2017
wherein, various posts were advertised by it, including the post of
Controller of Examination in General category, calling for the
applications from the eligible candidates. The petitioner being
aggrieved, has preferred the captioned writ petition with the
aforementioned prayers.
5. Mr.Bhargav Hasurkar, learned advocate for the petitioner
submitted that though the petitioner was appointed as Controller of
Examination by the duly constituted Committee by issuing an
appointment order dated 25.7.2013, the service came to be abruptly
terminated, without issuing any notice much less, without offering any
opportunity of hearing to the petitioner, which action of the University is
in the breach of principles of natural justice. It is next submitted that the
termination of the petitioner vide order dated 4.7.2015 is against the
guidelines of University Grants Commission (hereinafter referred to as
"the UGC"). While inviting the attention of this Court to the order dated
4.7.2015, it is submitted that the University sought guidance from the
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State Government as regards the pay protection to be extended to the
petitioner and the State Government, in turn, vide its communication
dated 22.12.2014, informed that the earlier ad hoc service of the
petitioner cannot be considered for the purpose of direct recruitment. It
is this letter dated 22.12.2014 which weighed with the University while
passing the order dated 4.7.2015. It is submitted that the question of
probation is not an issue and that, under the guise of seeking guidance
and after receiving the guidance from the State Government, the
appointment of the petitioner has been cancelled by the University,
which is against the U.G.C. guidelines.
5.1. It is further submitted that, in fact, the Regulations of 2010 and
more particularly Regulation no.10 permits counting of ad hoc or
temporary service which has been rendered for more than one year
duration and therefore, when the Regulation itself provides for counting
of the ad hoc service, for the purpose of promotion or for direct
recruitment, there was no reason available to the State Government to
have refused the sanction on the ground that the ad hoc service
rendered by the petitioner cannot be taken into account for the purpose
of direct recruitment. It is emphatically submitted that it is always that
the Regulations will prevail over and going by the Regulations of 2010,
the action of the State Government so also, the University, is erroneous
in not considering the ad hoc service rendered by the petitioner for the
purpose of direct recruitment. It is further submitted that the Apex Court,
in the case of Praneeth K vs. University Grants Commission (UGC)
reported in 2020 SCC Online SC 688, has held that the regulations
framed by the U.G.C. will prevail and therefore, going by the principles
laid down by the Hon'ble Apex Court, the direction given by the State
Government has to go.
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5.2. While placing reliance on the various orders namely
communications dated 23.07.2019, 10.10.2019 and 04.12.2020
etcetera, (referred to during the course of submission but not forming
part of the captioned writ petition), it is submitted that though the
appointment of the petitioner was discontinued, the University has
continued issuing the orders in favour of the petitioner requiring him to
work as Controller of Examination.
5.3. It is next submitted that not only after the termination, even prior
thereto, the University has issued various orders in favour of the
petitioner assigning various duties to be performed by him. Not only this
the petitioner was always given the additional charge either of the post
of Director of Physical Education or of the Director of Examination etc.
Therefore, the documents clearly suggest that the petitioner was
capable of undertaking all the assignments which he was given by the
University and therefore, the action in question is illegal and bad
inasmuch as, on the one hand, the University itself has given various
assignments and on the other hand, has terminated the service of the
petitioner on the ground that the ad hoc service cannot be considered
for the purpose of direct recruitment.
5.4. While dealing with the preliminary objection, raised by the learned
advocate for the respondent University during the oral hearing, it is
submitted that the appeal, though pending, this Hon'ble Court can very
well entertain the writ petition. It is therefore, urged that the action of the
University was not in the right earnest and by terminating the service of
the petitioner vide order dated 4.7.2015, the University has committed
breach of not only the principles of natural justice but also the breach of
Regulations and guidelines governing the service conditions of the
petitioner.
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5.5. It is further submitted that the Appeal No.101 of 2015 was filed
before the Tribunal challenging the action of the University, putting an
end to the service of the petitioner, however, during the pendency of
appeal, the University only with a view to frustrating the claim of the
petitioner, issued an advertisement dated 27.7.2017 requiring
applications for the post of Controller of Examination. It is submitted that
the said advertisement has been issued only with a view to frustrating
the legitimate claim of the petitioner, creating an irreversible situation by
appointing a third party to the post and in the event the petitioner
succeeds, no post would be left to be offered to the petitioner.
5.6. It is thus, urged that the order dated 4.7.2015 passed by the
University deserves to be quashed and set aside and the captioned writ
petition be allowed.
6. On the other hand, Mr.Siddharth Dave, learned advocate for the
respondent no.1 University, has vehemently opposed the entertainment
of the writ petition. At the outset, Mr. Dave, learned advocate has raised
the preliminary objection as regards maintainability of the writ petition
on the ground of availability of alternative efficacious remedy to the
petitioner by virtue of the provisions of Section 11 of the Act of 2006. It
is submitted that in fact, the petitioner had, in the year 2015, preferred
an appeal. It is submitted that the petitioner had on 12.3.2020, withdrew
the appeal however, the said fact has not been disclosed before this
Hon'ble Court. Once the statutory appeal filed by the petitioner has
been withdrawn, without reserving any liberty to file fresh proceedings,
the petitioner has lost his right and therefore, the present petition may
not be entertained. It is submitted that the conduct of the petitioner does
not inspire confidence inasmuch as, the petitioner though withdrew the
appeal in the month of march, 2020, has not even made a mention in
the further affidavit which was filed as recently as in the month of march,
2021. Therefore, the conduct of the petitioner dis-entitles him from
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seeking any equitable relief from this Court.
6.1. While adverting to the aspect of suppression of material fact, it is
submitted that the averments made in the writ petition give the
impression that the petitioner was a permanent employee and his
service has been terminated without following the principles of natural
justice and without adhering to the University Statute; however, the
petitioner has suppressed the factum that he was appointed on
probation basis. The said aspect of suppression of material fact is
strengthened by the averments made by the petitioner in the writ
petition. It is submitted that it was expected of the petitioner to have
narrated the fact that his appointment was on probation for two years
and also that, prior to his appointment as Controller of Examination, he
was working on ad hoc and contractual basis; however, there is not a
whisper about the same. Further, the original appointment letter was
not produced at the threshold but, the same was produced after the
reply was filed by the University. It is therefore, submitted that if the
petitioner is praying for equitable relief, he should have disclosed each
and every aspect, relatable and connected to the issue in question even
if the fact goes against the petitioner.
6.2. It is submitted that the petition is filed only with a view to seeing
that the petitioner gets some order. Non-disclosure of full and correct
facts had led to the passing of the order dated 21.8.2017 by this Hon'ble
Court. It is submitted that the impression was given before this Court
that though the petitioner has been appointed on a permanent basis, his
service has been terminated without following the principles of natural
justice and though the appeal filed by the petitioner is pending
consideration before the Tribunal, the University, only with a view to
frustrating the claim of the petitioner, has issued an advertisement.
Considering the said fact, this Court was led to believe that the action of
the University was in breach of the principles of natural justice and
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therefore, this Court, though permitted the University to proceed further
with the recruitment process, restrained it from issuing any appointment
order.
6.3. It is further submitted that even otherwise, the petitioner has no
right whatsoever considering the fact that the petitioner was appointed
in the year 2002 on the post of Assistant Professor and that too, on ad
hoc post on contractual basis. The appointment of the petitioner in the
year 2013 was also on the probation basis and therefore, as per the
settled position of law the petitioner being a probationer has no right
over the post.
6.4. Reliance is placed on the judgment of the Apex Court in the case
of K.D. Sharma vs. Steel Authority of India Ltd . reported in (2008)12
SCC 481. It is submitted that the Hon'ble Supreme Court has held that
the jurisdiction of the Supreme Court under Article 32 and of the High
Court under Article 226 of the Constitution of India is extraordinary,
equitable and discretionary. Prerogative writs mentioned therein are
issued for doing substantial justice. It is, therefore, of utmost necessity
that the petitioner approaching the writ court must come with clean
hands, put forward all the facts before the Court without concealing or
suppressing anything and seek an appropriate relief. If there is no
candid disclosure of relevant and material facts or the petitioner is guilty
of misleading the Court, his petition may be dismissed at the threshold
without considering the merits of the claim.
6.5. It is next submitted that though the appeal was filed in the year
2015, no attempt has been put by the petitioner for hearing the appeal
and the same has been withdrawn on 12.3.2020 and therefore, the
petition is required to be dismissed without going into the merits of the
matter. It is submitted that the petitioner may argue that now, after
withdrawal of the appeal, it is permissible to the petitioner to pursue the
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captioned writ petition. However, once the appeal is withdrawn
unconditionally, it would be impermissible for the petitioner to pursue
the present writ petition and it is urged that this Court may not entertain
the writ petition.
6.6. While adverting to the merits and the right of the probationer, it is
submitted that it is well settled position of law that the probationer has
no right on the post. Also, a bare perusal of the order dated 4.7.2015
clearly suggests that no stigma is attached or has been cast upon the
petitioner, and the order is of, termination simpliciter. Reliance is placed
on the judgment of the co-ordinate Bench of this Court in the case of
Hetal Shankarbhai Patel vs. State of Gujarat rendered in Special Civil
Application No.6737of 2020. It is submitted that the co-ordinate Bench,
while considering the numerous judgments of the Apex Court, has
dismissed the petition observing that the University was well within its
right to consider the service record of the petitioner in context of its
suitability to continue the petitioner on probation. This Court upheld the
action of the University in discontinuing the service of the probationer,
more particularly, when the same was not stigmatic. This Court has also
observed that during the probation period, the suitability of an employee
can be ascertained by the employer and it is not for the court to
substitute its view with regard to the suitability of the employee unless
the act of the employer is found to be arbitrary or perverse.
6.7. It is submitted that as is clear, the petitioner is seeking the
mandamus to continue him on probation. However, in view of the
principles laid down by this Court, the petitioner has no right over the
post and the order is a simple order, discontinuing the petitioner from
the service, the same does not deserve to be interfered with by this
Court as this Hon'ble Court may not like to substitute its view with
regard to the suitability of the employee except in the exceptional
C/SCA/15213/2017 JUDGMENT
circumstances, that is, the action of the employer being arbitrary or
perverse.
6.8. Further reliance is placed on the judgment of the Apex Court in
the case of State of Punjab vs. Sukhwinder Singh reported in (2005) 5
SCC 569. It is submitted that the Hon'ble Supreme Court has held that
a probationer is on test and a temporary employee has no right to the
post. While referring to the judgment in the Case of Ajit Singh vs. State
of Punjab reported in (1983) 2 SCC 217, it is submitted that it has been
observed and held that period of probation gives time an opportunity to
the employer to watch the work, ability, efficiency, sincerity and
competence of the servant and if he is found not suitable for the post,
the master reserves a right to dispense with the service without
anything more during or at the end of the prescribed period which is
styled as a period of probation.
6.9. Reliance is also placed on the judgment of the Apex Court in the
case of Om Prakash Mann vs. Director of Education reported in (2006)
7 SCC 558. It is submitted that the Apex Court has reiterated the
principle that if the probationer is dismissed/terminated during the
period of probation, no opportunity is required to be given and therefore,
the question of violation of principles of natural justice does not arise. It
is therefore, submitted that the petitioner was appointed on probation for
a period of two years and upon completion of the probation period, the
service of the petitioner was discontinued and therefore, the petitioner
having no right over the post, cannot make any grievance of violation of
principles of natural justice considering the fact that the order dated
4.7.2015 was of termination simpliciter.
6.10. While adverting to the aspect of eligibility, it is submitted that the
learned advocate for the petitioner has misread the provisions of
Regulation no.10 of the Regulations of 2010 of the U.G.C. It is
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submitted that so far as the Regulation no.10.1 is concerned, the same
would not apply to the petitioner inasmuch as, the previous regular
service is to be counted for direct recruitment and promotion under
Career Advancement Scheme of a teacher as Assistant Professor or
Associate Professor or as the case may be. Therefore, the Regulation
No.10.1, has no application to the post of Controller of Examination
because, the same would apply for the purpose of promotion to the post
of either Assistant Registrar or Associate Professor or the Professor as
the case may be. It is submitted that the said Regulation is meant for
the purpose of promotion and direct recruitment as Assistant Professor
and not for the post of Controller of Examination. It is submitted that it is
true that sub-clause (ii) of Clause-(f) provides for consideration of the ad
hoc or temporary service if the incumbent is appointed on the
recommendation of a duly constituted Selection Committee. However,
the same would be for the post of Assistant Professor or Associate
Professor or Professor as the case may be and definitely not for the
post of Controller of Examination.
6.11. While referring to the advertisement and the qualification, it is
submitted that the experience required is of Assistant Registrar,
meaning thereby, the candidate must have 5 years of administrative
experience as Assistant Registrar or in an equivalent post. However,
the post of Controller of Examination cannot be said to be an equivalent
to the post of Assistant Registrar and also, the petitioner was
possessing experience on teaching side as he was appointed as
Assistant Professor on ad hoc post on contractual basis. Therefore, it
cannot be said that the petitioner was possessing five years of
administrative experience either as Assistant Registrar or in an
equivalent post of the Assistant Registrar.
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6.12. It is, therefore, urged that on all counts, the present writ petition
deserves to be dismissed with exemplary cost.
7. Heard learned advocate Mr. Bhargav Hasurkar for the petitioner,
Mr. Siddharth Dave for the respondent No.1 and Mr. Rohan Shah,
learned Assistant Government Pleader. for respondent Nos.2 and 3.
8. The petitioner has challenged the employment notice no.20/2017
dated 27.7.2017, whereby, the University had invited applications from
the eligible candidates for being appointed to the posts of librarian,
Controller of Examination etcetera. The grievance of the petitioner is
also to the effect that the petitioner was serving on the post of Controller
of Examination from 25.7.2013, as the petitioner was appointed on a
clear substantive post after following due procedure of selection. The
service of the petitioner came to be terminated by the University on
4.7.2015 and the said order was passed without offering any
opportunity of hearing to the petitioner and in contravention of the
University Statute, which, requires that "a permanent employee will not
be terminated" or reduced in rank except after an enquiry in which he
has been informed of the charges against him or reasons for the same
and is given a reasonable opportunity of being heard in respect of those
charges for reasons, as the case may be.
9. Pertinently, an impression has sought to be created in the
captioned writ petition as if the petitioner was a permanent employee,
who was appointed by the duly constituted committee; however, the
University without issuing any notice and in violation of principles of
natural justice, terminated the service of the petitioner. The said
decision was challenged by the petitioner before the tribunal by way of
statutory appeal provided under the Act of 2006. It is further the case of
the petitioner that during the pendency of the appeal, the University had
issued the employment notice no.20/2017 dated 27.7.2017 inviting the
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applications from the eligible candidates for being appointed to the post
of Controller of Examination and if the University is allowed to fill up the
post, the appeal filed by the petitioner before the Tribunal would be
rendered infructuous. At the outset it is required to be noted that the
edifice on which, the petition has been filed is tainted with falsity, for, the
petitioner was never appointed on a permanent basis, as his initial
appointment was on contractual basis and it continued as such till
9.7.2013 and thereafter on probation.
10. The petitioner at the threshold, did not produce any orders
whereby, he was appointed on contract basis, however, the same was
produced as recently as in the month of March 2021. Perceptibly, the
petitioner's initial appointment was on contractual basis for a period of
239 days and he continued on the said post, on contract basis, till he
was appointed vide order dated 9.7.2013 on the post of Controller of
Examination, on probation for a period of two years. The University,
while appointing the petitioner on the post of Controller Examination,
considered the ad hoc service of the petitioner, rendered as Assistant
Professor and thereafter vide communication dated 26.7.2013, resolved
to extend the pay protection to the petitioner. The University appears to
have sought permission of the State Government vide letter dated
26.11.2014 and the State Government, in turn, addressed
a communication dated 22.12.2014, inter alia, informing the University
that the ad hoc service of the petitioner cannot be considered for the
purpose of effecting appointment to the post of Controller of
Examination. The letter further states that no permission has been
obtained from the State Government before taking the decision, which
is likely to incur financial burden on the State Government. Apropos the
communication dated 22.12.2014, the University issued the order dated
4.7.2015 informing the petitioner that ad hoc service of the petitioner
cannot be considered and therefore, the service of the petitioner stands
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terminated inasmuch as, the petitioner does not possess the requisite
qualification for being appointed to the post. Therefore, the question
which arises for the consideration of this Court is as to whether by virtue
of order dated 9.7.2013 appointing the petitioner on probation, can any
right, said to have been conferred upon the petitioner? The answer to
the said question is in negative for, by now, it is well settled that the
probationer has no right over the post.
11. Profitable is to refer the judgment of the Apex Court in the case of
State of Punjab vs. Sukhwinder Singh (supra) wherein it has been held
that the period of probation gives time and opportunity to the employer
to watch the work, ability, efficiency, sincerity and competence of the
servant and if he is found not suitable for the post, the master reserves
the right to dispense with his service without anything more during or at
the end of the prescribed period, which is styled as period of probation.
The Apex Court, in the case of Om Prakash Mann (supra), has held that
if the probationer is dismissed, terminated during the period of
probation, no opportunity is required to be given and therefore, the
question of violation of principles of natural justice does not arise.
12. As discussed hereinabove, the petitioner was appointed on
probation vide appointment letter dated 9.7.2013 and since the
petitioner was to be extended pay protection, necessary permission was
sought for from the State Government vide letter dated 26.11.2014 and
the State Government, in turn, vide letter dated 22.12.2014, refused the
permission on the ground that the ad hoc service of the petitioner
rendered as Assistant Professor cannot be considered for the purpose
of appointing the petitioner on the post of Controller of Examination
therefore, before there could be confirmation, during the period of
probation, the service of petitioner came to be terminated. The said
order is an order of termination simpliciter with no stigma attached.
Therefore, it cannot be said that there was any right accrued in favour of
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the petitioner for continuance on the post of Controller of Examination
more particularly when the petitioner was not possessing the requisite
qualification for being appointed to the said post. In absence of any
right, the prayer of the petitioner for quashing and setting aside the
order dated 4.7.2015, is misconceived and deserves to be rejected.
13. As has been observed hereinabove, the petitioner has no right
over the post however, since the contention is raised as regards the
eligibility, for the sake of completeness, let me deal with the said
argument as well. It is contended by the learned advocate for the
petitioner that Regulations of 2010, provides for counting of the ad hoc
service for direct recruitment and promotion under the Career
Advancement Scheme of a teacher as Assistant Professor, Associate
Professor etc. It is also submitted that Regulations of 2010 prevails over
the direction of the State Government. The Regulation no.10.1 of the
Regulations of 2010 reads thus:-
"10.0. Counting of Past Services for Direct Recruitment and
Promotion under CAS
10.1. Previous regular service, whether national or international, as
Assistant Professor, Associate Professor or a Professor or
equivalent in a University, College, National Laboratories or other
scientific/professional Organisations such as the CSIR, ICAR,
DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc, should be counted for
direct recruitment and promotion under CAS of a teacher as
Assistant Professor, Associate Professor, Professor or any other
nomenclature these posts are described as per Appendix III - Table
No.II provided that:
(a) .....
(b) .....
(c) .....
(d) .....
(e) .....
(f) The previous appointment was not as guest lecturer for any
duration, or an ad hoc or in a leave vacancy of less than one year
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duration. Ad hoc or temporary service of more than one year
duration can be counted provided that:
(i) the period of service was of more than one year duration.
(ii) The incumbent was appointed on the recommendation of duly
constituted selection committee; and
(iii) the incumbent was selected to the permanent post in
continuation to the ad hoc or temporary service, without any break.
(g) ....."
14. There lies a fallacy in the argument of the petitioner considering
the fact that clearly, Regulation no.10.1 would apply to the promotion for
direct recruitment and promotion under Career Advancement Scheme of
a teacher as Assistant Professor, Associate Professor and Professor.
When the issue is of promotion and direct recruitment from the post of
Assistant Professor to the post of Associate Professor or for that matter
to the post of Professor, then in that case, the previous service shall be
counted including the service rendered as ad hoc or temporary. Hence,
the ad hoc service of the petitioner rendered as Assistant Professor
could not have been counted for the purpose of appointment to the post
of Controller of Examination, which is a non-teaching post.
15. Besides, the qualifications for appointment to the post of
Controller of Examination are (i) Master's degree with at least 55% of
the marks or its equivalent grade of "B" in the U.G.C. seven point scale
and (ii) 5 years of administrative experience as Assistant Registrar or in
an equivalent post. Therefore, the petitioner having worked as ad hoc
Assistant Professor, cannot be said to have possessing five years of
administrative experience as Assistant Registrar or in an equivalent post
because, the post of Assistant Professor is not equivalent to the post of
Assistant Registrar. Therefore, both the arguments namely counting of
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ad hoc service as well as petitioner possessing the requisite
qualifications for being appointed to the post of Controller of
Examination, of the learned advocate for the petitioner are misplaced
and devoid of any merits and thus are rejected.
16. Therefore, in view of the aforementioned discussion, the petitioner
was not eligible and qualified for being appointed to the post of
Controller of Examination and has no right over the post in question.
Therefore, the consequential prayer, as prayed for by the petitioner, for
setting aside the employment notice no.20/2017 dated 27.07.2017, also
does not deserve to be granted and is hereby rejected.
17. Quite apart, the petitioner had initially challenged the order dated
4.7.2015 by way of a statutory appeal under section 11 of the Act of
2006 before the Tribunal and during the pendency of the appeal, the
petitioner preferred the captioned writ petition in the year 2017. Apart
from challenge to the employment notice no.20/2017 dated 27.7.2017,
the petitioner also challenged the order dated 4.7.2015. Therefore, the
order dated 4.7.2015 was challenged before the Tribunal as well as
before this Court. On 12.3.2020, the petitioner, for the reasons best
known to him, filed a pursis Exh.18 seeking withdrawal of the Appeal no.
101 of 2015 and the Tribunal vide its order dated 12.3.2020, allowed the
petitioner to withdraw the appeal unconditionally. Therefore, the
petitioner has consciously abandoned the appellate proceeding without
reserving any liberty to institute the proceedings afresh or pursue the
present petition.
18. The Apex Court in the case of Sarguja Transport Service vs.
State Transport Appellate Tribunal, M.P, Gwalior reported in (1987) 1
SCC 5, has held that the law confers upon a man no rights or benefits which
he does not desire. Whoever waves/abandons or disclaims a right will lose it.
Therefore, when the statutory appeal was withdrawn by the petitioner
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unconditionally without reserving liberty, the petitioner cannot maintain
the writ petition for the very same cause of action, that is, challenge to
the order dated 4.7.2015. Therefore, on this count as well, the petition
deserves to be dismissed.
19. The petition also deserves to be dismissed on the ground of non-
disclosure of material facts. The petitioner had, while challenging the
employment notice no.20/2017 dated 27.7.2017, in paragraph 3.4 of the
petition has averred as follows:
"3.4. It is the case of the petitioner that on 04.07.2015, the
petitioner's services came to be terminated vide office order
without issuance of any notice or even affording the petitioner
an opportunity of hearing which is not only in stark violation of
principles of natural justice but also is in violation of University
Statute which requires that "a permanent employee will not be
terminated or reduced in rank except after an enquiry in which
he has been informed of the charges against him or reasons
for the same and is given a reasonable opportunity of being
heard in respect of those charges or reasons, as the case
may be".
20. Pertinently, the petitioner was not a permanent employee and
therefore there was no question of applicability of the said statute to the
petitioner which, was meant for permanent employee. Further the
appointment of the petitioner was on probation and even before his
appointment as Controller of Examination, he was working as Assistant
Professor on contract basis. Mr. Dave the learned advocate appearing
for the respondent University is right in pointing out that in the whole
memorandum of petition, there is not a whisper that the petitioner was
on probation and on the contrary, an impression is sought to be created
that the petitioner is a permanent employee and could not have been
removed without holding any enquiry. The Apex Court in the case of
K.D. Sharma (supra), has held that if a party comes for equitable relief,
it is incumbent upon him or her to disclose all the relevant facts even if
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the facts are against him. The relevant paragraphs 34 to 39 are
reproduced hereinbelow for ready reference:
"34. The jurisdiction of the Supreme Court under Article 32
and of the High Court under Article 226 of the Constitution
is extraordinary, equitable and discretionary. Prerogative
writs mentioned therein are issued for doing substantial
justice. It is, therefore, of utmost necessity that the
petitioner approaching the Writ Court must come with clean
hands, put forward all the facts before the Court without
concealing or suppressing anything and seek an
appropriate relief. If there is no candid disclosure of
relevant and material facts or the petitioner is guilty of
misleading the Court, his petition may be dismissed at the
threshold without considering the merits of the claim.
35. The underlying object has been succinctly stated by
Scrutton, L.J., in the leading case of R. v. Kensington
Income Tax Commissioners in the following words:
"... it has been for many years the rule of the Court, and
one which it is of the greatest importance to maintain, that
when an applicant comes to the Court to obtain relief on an
ex parte statement he should make a full and fair
disclosure of all the material facts- it says facts, not law. He
must not misstate the law if he can help it; the Court is
supposed to know the law. But it knows nothing about the
facts, and the applicant must state fully and fairly the facts;
and the penalty by which the Court enforces that obligation
is that if it finds out that the facts have not been fully and
fairly stated to it the Court will set aside any action which it
has taken on the faith of the imperfect statement".
(emphasis supplied)
36.A prerogative remedy is not a matter of course. While
exercising extraordinary power a Writ Court would certainly
bear in mind the conduct of the party who invokes the
jurisdiction of the Court. If the applicant makes a false
statement or suppresses material fact or attempts to
mislead the Court, the Court may dismiss the action on that
ground alone and may refuse to enter into the merits of the
case by stating "We will not listen to your application
because of what you have done". The rule has been
evolved in larger public interest to deter unscrupulous
litigants from abusing the process of Court by deceiving it.
37. In Kensington Income Tax Commissioner, Viscount
Reading, C.J. Observed (KB pp.495-96):
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"... Where an ex parte application has been made to this
Court for a rule nisi or other process, if the Court comes to
the conclusion that the affidavit in support of the application
was not candid and did not fairly state the facts, but stated
them in such a way as to mislead the Court as to the true
facts, the Court ought, for its own protection and to prevent
an abuse of its process, to refuse to proceed any further
with the examination of the merits. This is a power inherent
in the Court, but one which should only be used in cases
which bring conviction to the mind of the Court that it has
been deceived. Before coming to this conclusion a careful
examination will be made of the facts as they are and as
they have been stated in the applicant's affidavit, and
everything will be heard that can be urged to influence the
view of the Court when it reads the affidavit and knows the
true facts. But if the result of this examination and hearing
is to leave no doubt that this Court has been deceived,
then it will refuse to hear anything further from the
applicant in a proceeding which has only been set in
motion by means of a misleading affidavit". (emphasis
supplied)
38. The above principles have been accepted in our legal
system also. As per settled law, the party who invokes the
extraordinary jurisdiction of this Court under Article 32 or of
a High Court under Article 226 of the Constitution is
supposed to be truthful, frank and open. He must disclose
all material facts without any reservation even if they are
against him. He cannot be allowed to play `hide and seek'
or to `pick and choose' the facts he likes to disclose and to
suppress (keep back) or not to disclose (conceal) other
facts. The very basis of the writ jurisdiction rests in
disclosure of true and complete (correct) facts. If material
facts are suppressed or distorted, the very functioning of
Writ Courts and exercise would become impossible. The
petitioner must disclose all the facts having a bearing on
the relief sought without any qualification. This is because,
"the Court knows law but not facts".
39. If the primary object as highlighted in Kensington
Income Tax Commissioners is kept in mind, an applicant
who does not come with candid facts and `clean breast'
cannot hold a writ of the Court with `soiled hands'.
Suppression or concealment of material facts is not an
advocacy. It is a jugglery, manipulation, maneuvering or
misrepresentation, which has no place in equitable and
prerogative jurisdiction. If the applicant does not disclose
all the material facts fairly and truly but states them in a
distorted manner and misleads the Court, the Court has
inherent power in order to protect itself and to prevent an
abuse of its process to discharge the rule nisi and refuse to
proceed further with the examination of the case on merits.
If the Court does not reject the petition on that ground, the
Court would be failing in its duty. In fact, such an applicant
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requires to be dealt with for contempt of Court for abusing
the process of the Court."
21. In the present writ petition, not only the petitioner has not
disclosed the correct facts but has sought to create an impression that
the petitioner is an employee working with the University on a
permanent post and the university has sought to remove him without
following the principles of natural justice as well as without adhering to
the University Statute. Therefore, non-disclosure of material facts and
giving a distorted version of the nature of his appointment, these two
factors are fatal to the writ petition and dis-entitles the petitioner from
seeking any equitable reliefs. Therefore, the petition deserves to be
dismissed on this count as well.
22. Under the circumstances, the petition is hereby dismissed. Rule
is discharged. Interim Relief granted earlier in the captioned writ petition
stand vacated. No order as to cost.
(SANGEETA K. VISHEN,J)
Hitesh
