Dr.Radhakrishna Pillai vs The Union Of India
2021 Latest Caselaw 11603 Ker

W.P.(C).No.8615/2021
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              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

  FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                       WP(C).No.8615 OF 2021(B)


PETITIONER:-

                DR.RADHAKRISHNA PILLAI
                AGED 57 YEARS
                S/O.N. GOPALA PILLAI, ASSISTANT PROFESSOR,
                DEPARTMENT OF LIFE SCIENCE, UNIVERSITY OF
                CALICUT, CALICUT UNIVERSITY P.O. THENJIPALAM,
                MALAPPURAM DISTRICT.

                BY ADVS.
                SRI.GEORGE POONTHOTTAM (SR.)
                SMT.NISHA GEORGE
                SRI.A.L.NAVANEETH KRISHNAN

RESPONDENTS:

        1       THE UNION OF INDIA
                REPRESENTED BY THE SECRETARY TO GOVERNMENT,
                MINISTRY OF HOME AFFAIRS, JAI SINGH MARG,
                HANUMAN ROAD, AREA, CONNAUGTT PLACE, NEW DELHI
                110 001.

        2       THE UNION OF INDIA,
                REPRESENTED BY THE SECRETARY TO GOVERNMENT,
                MINISTRY OF EXTERNAL AFFAIRS, JAI SINGH MARG,
                HANUMAN ROAD, ARE, CONNAUGHT, PLACE, NEW DELHI
                110001.

        3       THE UNIVERSITY OF CALICUT,
                CALICUT UNIVERSITY P.O. THENJIPALAM, MALAPPURAM
                DISTRICT, 673 635.
 W.P.(C).No.8615/2021
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        4       THE CHANCELLOR,
                THE UNIVERSITY OF CALICUT, KERALA RAJ BHAVAN
                KERALA GOVERNORS CAMP P.O. THIRUVANANTHAPURAM
                695 009,
                E-MAIL, [email protected] COM.

        5       THE VICE CHANCELLOR,
                UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.
                THENJIPALAM, MALAPPURAM DISTRICT 673 635.

        6       THE SYNDICATE
                UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O.
                THENJIPALAM, MALAPPURAM DISTRICT 673 635.
                REPRESENTED BY ITS CHAIRMAN.

        7       THE UNIVERSITY GRANTS COMMISSION (UGC),
                BAHADUR SHAH ZAFAR MARG, NEW DELHI 110 002,
                REPRESENTED BY ITS CHAIRMAN.

                R1-2 BY SRI.ANISH JAIN, CGC
                R7 BY SRI.S.KRISHNAMOORTHY, CGC

OTHER PRESENT:

                SRI. P C. SASIDHARAN-SC- SMT.NISHA BOSE -GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
07-04-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.8615/2021
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                                  JUDGMENT

Dated this the 9th day of April 2021

1. The writ petition is filed seeking the following reliefs:-

"i) Issue a writ of certiorari to call for the records leading to Exhibit-P15 & P17 and set aside the same;

ii) Issue a writ declaring that the petitioner is entitled to be continued in service of the University and that there is no legal bar for an OCI to work in India;

iii) Issue a writ declaring that a person registered as an Overseas Citizen of India can work as a teaching faculty in the 3rd respondent University in view of Exhibits-P24 & P25;

iv) Issue a writ declaring that Section 7B(2) (a) & (i) is not applicable in the case of the petitioner;

v) Issue a writ declaring that action of the University to terminate the service of the petitioner is arbitrary, unjust and illegal;

vi) Issue a Writ of Mandamus directing the University to take expeditious steps grant promotion as Associate Professor;"

2. Heard the learned Senior Counsel appearing for the petitioner

and the learned Standing Counsel appearing for the

respondent University.

3. The learned Senior Counsel appearing for the petitioner

submits that the petitioner is admittedly an OCI card holder W.P.(C).No.8615/2021

and has been continuously engaged by the respondent

University. It is submitted that a false complaint under

fictitious identity had been submitted before the Chancellor of

the University that the petitioner's continuance as staff in the

University is illegal. It is submitted that there was no

complainant as stated and person in whose name the

complaint was sent had specifically stated that he did not

possess the e.mail id from which the complaint was sent and

that he had not submitted any such complaint. However, on

the basis of Exhibit P10, it is submitted that Exhibit P13

communication had been issued requiring the petitioner to

submit a reply with regard to the fictitious complaint. The

petitioner submitted Exhibit P14 reply.

4. However, in a completely mala fide exercise of power, it is

submitted that Exhibit P15 notice had been issued to the

petitioner.. It is stated in Exhibit P15 that it has come to the

notice of the Standing Committee on Staff and Finance that as

per clause 7B (2) (a) and (I) of the Indian Citizenship Act an

Overseas Citizen of India shall not be entitled to the rights W.P.(C).No.8615/2021

conferred under Article 16 of the Constitution except in posts

as the Central Government may specify. The petitioner was

therefore required to produce an affidavit attested by an

officer not below the rank of a First Class Judicial Magistrate

proving that no action has been taken on his part against the

above provision as a University employee. It is submitted that

though Exhibit P16 reply was submitted, a further notice was

issued as Exhibit P17 show cause notice was issued to him and

threatening disciplinary action against him. It is submitted

that since persons with OCI status are permitted to be

appointed in the University and since Exhibit P24 scheme

specifically provides for employment of such persons, the

allegations raised are completely vitiated and the entire

exercise is mala fide and vitiated by extraneous

considerations. It is further submitted by the learned Senior

Counsel that Exhibit P10 complaint had been received in the

office of the Chancellor and that the enquiry, if any on the

same, is to be conducted by the Chancellor and not by the

University. It is submitted that in view of Exhibit P11 and P12

communications issued by the alleged author of Exhibit P10, W.P.(C).No.8615/2021

no further steps are liable to be taken on the basis of Exhibit

P10, which is evidently a fictitious complaint.

5. The learned Standing Counsel appearing for the University

would submit that Exhibits P15 and P17 are only show cause

notices issued to the petitioner and if the petitioner is, as a

matter of fact, an OCI card holder, who has not relinquished

his Indian citizenship, he only needs to state so on an affidavit

duly attested by a competent officer. It is stated that it is in

the absence of any such statement forthcoming from the

petitioner that the further show cause notice has been issued

to the petitioner. It is submitted that the writ petition is not

maintainable as against such a show cause notice and if the

petitioner has not acted in violation of the provision of Section

7-B (2)(a) and (i) of the Citizenship Act , then the petitioner

need only state the fact before the respondents and no further

action would be taken against him. It is further submitted that

even if the petitioner's reply is found to be not satisfactory,

appropriate action will be taken against the petitioner only in

accordance with law.

W.P.(C).No.8615/2021

6. I have considered the contentions advanced. A reading of

Exhibits P15 and P17 would clearly show that the same are

only show cause notices issued to the petitioner by the

Registrar of the University. The notices state that it has come

to the notice of the University, presumably by the forwarding

of Exhibit P10 complaint by the Chancellor, that there is a

complaint that the petitioner has voluntarily relinquished his

Indian citizenship. That is the ground on which Exhibit P17

has been issued to the petitioner. If the petitioner has a case

that he has not relinquished his Indian citizenship, then he

only requires to states so on an affidavit before the

respondents and to submit his explanation along with any

document which he may wish to rely on including copies of his

current registration as an Overseas Citizen of India. If such a

reply is submitted by the petitioner it will be considered taking

specific note of the provisions applicable and an appropriate

decision shall be taken by the respondents. The contentions

raised by the learned Senior Counsel for the petitioner that

Exhibit P10 complaint was submitted before the Chancellor W.P.(C).No.8615/2021

and that the University cannot take any steps based on the

same in the light of Exhibits P11 and P12 cannot be accepted

since the question whether the petitioner has relinquished his

Indian citizenship is a question of fact and the University,

being the employer, on being informed that the petitioner has

relinquished his citizenship cannot be said to be acting in

excess of its jurisdiction by requiring the petitioner to state

whether the fact is true or not.

7. In the above factual situation, I am of the opinion that the writ

petition filed against Exhibit P15 and P17 show cause notices

is premature. However, in view of the averments raised by

the learned Senior Counsel appearing for the petitioner the

petitioner will be granted 15 days further time for submitting

his explanation to Exhibit P15 and P17 show cause notices.

The affidavit, as required can be duly attested by an Advocate

or notorised and the attestation by a Judical Magistrate shall

not be insisted upon. Once the explanation is preferred by the

petitioner, the same shall be considered and if it is found to be

unsatisfactory, the petitioner shall be put on notice and heard W.P.(C).No.8615/2021

before any further steps are taken pursuant to the show cause

notices. The material relied on by the petitioner shall also be

duly considered. In case the respondents decide to proceed

further in the matter, all due procedure as contemplated by

law shall be complied with. The petitioner shall be free to

challenge any orders passed in the matter, in accordance with

law.

Writ petition is ordered accordingly.

Sd/-

Anu Sivaraman, Judge

sj W.P.(C).No.8615/2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REFERENCE LETTER DATED 01.05.2013 ISSUED TO THE PETITIONER FORM IMPERIAL COLLEGE LONDON.

EXHIBIT P2 TRUE COPY OF THE LETTER DATED 19.09.2014 ISSUED TO THE PETITIONER FROM BRUNEL UNIVERSITY, LONDON.

EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE UNIVERSITY OF CALIFORNIA SANDIEGO DATED 15.11.2012.

EXHIBIT P4 TRUE COPY OF THE ORDER IN APPEAL BERING NO. GS3-2372/2010 DATED 12.11.2013 ISSUED BY THE CHANCELLOR OF THE RESPONDENT UNIVERSITY.

EXHIBIT P5 TRUE COPY OF THE ORDER BEARING U.O. NO.

5977/2013/CU DATED 25.11.2013 ISSUED BY THE RESPONDENT UNIVERSITY.

EXHIBIT P6 TRUE COPY OF THE REQUEST LETTER DATED 10.01.2008 ISSUED BY THE PETITIONER TO THE REGISTRAR OF THE UNIVERSITY.

EXHIBIT P7 TRUE COPY OF THE CITIZENSHIP BOOK/PASSPORT OF THE PETITIONER ISSUED BY THE GOVERNMENT OF INDIA.

EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 31.07.2008 ISSUED BY THE PETITIONER TO THE REGISTRAR OF THE UNIVERSITY.

EXHIBIT P9 TRUE COPY OF THE LIST OF RECOMMENDATIONS SUBMITTED BY THE PETITIONER BEFORE THE VICE CHANCELLOR F THE UNIVERSITY DATED 08.09.2020.

W.P.(C).No.8615/2021

EXHIBIT P10 TRUE COPY OF THE SCREEN SHORT OF THE EMAIL DATED 18.11.2020 SUBMITTED BEFORE THE HONBLE CHANCELLOR OF THE UNIVERSITY.

EXHIBIT P11 TRUE COPY OF THE SCREEN SHORT OF THE EMAIL COMMUNICATION SENT BY MR. JIJO.K JAMES TO THE CHANCELLOR DATED 19.1.2021

EXHIBIT P12 TRUE COPY OF THE SCREEN SHORT OF THE EMAIL COMMUNICATION SENT BY MR. JIJO.K JAMES TO THE CHANCELLOR DATED 14.03.2021

EXHIBIT P13 TRUE COPY OF THE COMMUNICATION NO.

202986/GA-11-FI/2020/ADMN DATED 15.01.2021 ISSUED BY THE UNIVERSITY.

EXHIBIT P14 TRUE COPY OF THE COMMUNICATION/REPLY NO.8/RGP/21 DATED 08.02.2021 SUBMITTED BY THE PETITIONER.

EXHIBIT P15 TRUE COPY OF THE COMMUNICATION NO.

202986/GA-II-F1/2020/ADMN DATED 03.03.2021 ISEUD BY THE UNIVERSITY.

EXHIBIT P16 TRUE COPY OF THE LETTER NO.19/RGP/21 DATED 08.03.201 ISSUED BY THE PETITIONER.

EXHIBIT P17 TRUE COPY OF THE NOTICE NO. 191339/REG-

ASST-2/2019/ADMN DATED 09.03.201 ISSUED BY THE UNIVERSITY.

EXHIBIT P18 TRUE COPY OF THE LETTER NO. 23/RGP/21 DATED 10.03.2201 ISEUD BY THE PETITIONER.

EXHIBIT P19 TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTE TO THE SYNDICATE DATED 19.03.2021.

EXHIBIT P20 TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTIFICATION ISSUED BY THE MOULANA AZAD NATIONAL INSTITUTE OF TECHNOLOGY, BHOPAL DATED 23.07.2019.

W.P.(C).No.8615/2021

EXHIBIT P21 TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTIFICATION BEARING MEMO NO. F.01- 3/XV(E0/1842-A, DATED 31.07.2019 ISSUED BY THE TEZPUR UNIVERSITY ASSAM.

EXHIBIT P22 TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTIFICATION ISSUED BY THE BANARAS HINDU UNIVERSITY DATED 25.06.2020.

EXHIBIT P23 TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTIFICATION NO. NU/FACULTY/2019-20 DATED NIL ISSUED BY THE NALANDA UNIVERSITY.

EXHIBIT P24 TRUE COPY OF THE COMMUNICATION/BEARING FILE NO. 26011/MISC./47/2019OCI ISSUED BY THE MINISTRY OF HOME AFFAIRS DATED 15.11.2019.

EXHIBIT P25 TRUE COPY OF THE SCREEN SHOT TAKEN FROM THE WEBSITE OF INDIAN EMBASSY TASHKENT, UZBESKISTHAN.

EXHIBIT P26 TRUE COPY OF THE LETTER NO. 31/RGP/21 DATED 23.03.2021 ISSUED BY THE PETITIONER TO THE REGISTRAR OF THE UNIVERSITY.

EXHIBIT P27 TRUE COPY OF THE LETTER NO. 34/RGP/21 DATED 24.03.2201 ISSUED BY THE PETITIONER TO THE REGISTRAR OF THE UNIVERSITY.

True copy

PS to Judge