Madhya Pradesh High Court
M.P. Bhoj Open University vs Dr. Anushka M. Nayak on 1 April, 2025
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT APPEAL No. 36 of 2019
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
DR. SHAHDEV PRASAD GUPTA AND OTHERS
With
WRIT APPEAL No. 596 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 597 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 602 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 603 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 02-04-2025
2:36:30 PM
2
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 625 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 626 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 627 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 629 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 638 of 2018
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
WRIT APPEAL No. 32 of 2019
THE STATE OF MADHYA PRADESH AND OTHERS
Versus
DR. HEMLATA BAGHEL AND OTHERS
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 02-04-2025
2:36:30 PM
3
WRIT APPEAL No. 34 of 2019
STATE OF MP
Versus
DR. IFFAT KHAN AND OTHERS
WRIT APPEAL No. 38 of 2019
THE STATE OF MADHYA PRADESH
Versus
DR. YASMIN GANI KHAN AND OTHERS
WRIT APPEAL No. 41 of 2019
THE STATE OF MADHYA PRADESH
Versus
DR. MONIKA SINGH AND OTHERS
WRIT APPEAL No. 42 of 2019
THE STATE OF MADHYA PRADESH
Versus
DR. DIWAKAR SINGH AND OTHERS
WRIT APPEAL No. 54 of 2019
THE STATE OF MADHYA PRADESH
Versus
VINOD KUMAR ARGAL AND OTHERS
WRIT APPEAL No. 1991 of 2019
M.P. BHOJ OPEN UNIVERSITY RAJA BHOJ MARG KOLAR ROAD
BHOPAL AND OTHERS
Versus
DR. NAEMA QAMAR AND OTHERS.
WRIT APPEAL No. 1993 of 2019
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 02-04-2025
2:36:30 PM
4
M.P. BHOJ OPEN UNIVERSITY AND OTHERS
Versus
DR. ANUSHKA M. NAYAK AND OTHERS
........................................................................................................
Appearance:
Shri Amit Seth - Additional Advocate General with Shri Anubhav Jain,
Government Advocate on behalf of the Appellant/State.
Smt. Shobha Menon - Senior Advocate with Shri Rahul Choubey -
Advocate and Shri Jagdish Prasad Sharma - Advocate for the Appellant/M.P.
Bhoj University.
Shri R.K. Verma - Senior Advocate with Miss Preeti Khanna, Shri Ashish
Datta and Shri Ram Murti Tiwari - Advocates, Shri Arpan Pawar - Senior
Advocate with Shri Rahul Pathak -Advocate, Shri Manoj Sharma - Senior
Advocate with Qazi Fakhruddin and Shri Asif Ali Khan - Advocates and Shri
Jagdish Prasad Sharma, Shri Anshul Tiwari, Shri Aditya Pachori, Shri Shubham
Manchani, Shri Martand Paliwal, Shri Vasu Waswani and Shri Somesh Rai -
Advocates for the Respondents in their respective cases.
Shri K.C. Ghildiyal - Senior Advocate with Miss Warija Ghildiyal -
Advocate for the Respondent/Intervener in their respective case
..........................................................................................................
JUDGMENT
(Reserved on : 20 / 03 / 2025)
(Pronounced on : 01 / 04 / 2025)
Per: Hon'ble Shri Justice Vivek Jain.
The present batch of writ appeals have been filed by the State of
Madhya Pradesh and by the M.P. Bhoj (Open) University challenging the
common judgment and order passed by the learned Single Judge in WP
No.1910/2017 and batch of connected cases on 02.04.2018. By the aforesaid
order, the learned Single Judge has allowed the writ petitions filed by the
selected candidates against which the State Government and M.P. Bhoj
Open University (for short referred to as 'University') are in appeal before
this Court.
2. As there is similarity of facts and common dispute is involved in the
aforesaid appeals therefore, they are being decided by this common order.
For the sake of convenience facts are being taken from WA No.36/2019.
3. It is argued by Ms. Shohba Menon, Sr. Advocate appearing on behalf
of the University and Shri Amit Seth, learned Additional Advocate General
and Shri Anubhav Jain, Govt. Advocate appearing on behalf the State
Government that the order passed by the learned Single Judge is vulnerable
in as much as learned Single Judge has not taken into account the provisions
of the M.P. Bhoj (Open) University Adhiniyam, 1991 (for short referred to
as 'Adhiniyam 1991') so also not considered in proper prospective that the
initial reply filed by the University before the learned Single Judge was
maliciously filed in view of the peculiar circumstances of the case and the
same was thereafter followed by proper reply but the learned Single Judge
by adopting hyper technical view that the second reply filed by the
University though is on record but there is no application for withdrawal of
the first reply, therefore, allowed the petitions on the basis of averments
contained in the first reply. It is contended that such logic and reasoning
adopted by the learned Single Judge cannot be said to be proper and
therefore, pray for interfering with the order of learned Single Judge and to
allow the present batch of writ appeals.
4. It is argued that it was contended by the University in the subsequent
reply filed on 28.6.2017 (Document No.7635/2017) before the learned
Single Judge, in the above selection process for selection of most of the
post, no subjects experts have been included in the selection committee and
for the selection of some of the subjects, the subjects experts were called
from other disciplines, which is illegal and on the basis of the
recommendation of the aforesaid committee, appointment order cannot be
issued. It is also contended that the selection committee of the subject post
concerned has not followed the norms prescribed by the U.G.C. Regulations
and API-statement have not been filled in the prescribed form and not
properly disclosed. From the perusal of the summary of score of the
selection committee of the concerned posts clearly demonstrate that the
committee has not examined and scrutinized the academic records of each
applicant minutely and the statement of summary of marks awarded by the
committee are also in typed manner and some of the columns of marks are
blank, without any explanation. It is also important to mention here that
from the perusal of the above statement of the summary of marks it is
clearly depicted therefrom that the proposed candidates have been favoured
out of the way by awarding highest marks in interview by ignoring other
deserving candidates having better academic record, and in this view it is
clear that the selection committees have not-considered the merits of the
candidates and the statement of the summary of score suffered from
favoritism and cannot be accepted as fair selection therefore the whole
selection process is liable to be cancelled and on the basis of defective
selection process no appointment order can be issued to the writ petitioners.
5. It is contended that inspite of various complaints and State Govt.
directions the matter was placed before the Board of Management and the
Board of Management in its 66th meeting dated 27.10.2016 without
examining the complaints itself has constituted a five members committee in
which the name of Shri P.S. Chouhan has been introduced as a retired High
Court Judge though he had never been a High Court Judge, similarly the
other four members have also been included by pick & choose, who were all
the retired persons.
6. It is further argued that the University had published two
advertisements dated 09.02.2015 and dated 11.02.2015 for inviting
applications for Professor/Associate Professor and Assistant Professors for
the different departments of the University. In the above advertisement some
posts have been sanctioned by the Higher Education Department Govt. of
M.P. and some posts created by the Board of management for which no
prior approval has been taken from the Government. It is further submitted
that before the above two advertisement, the Government of M.P. Higher
Education Department vide its order dated11.12.2014 has directed that for
the sanctioned teaching posts in the University the roster should be
according to the University Grants Commission roster preparation rules and
Madhya Pradesh Lok Seva (Anusuchi Jatiyon, Anusuchit Jan Jatiyon Aur
Anya Pichhade Vergon Ke Liye Arakshan) Ashiniyam 1994. The roster
should be prepared by ascertaining reservation according to the model form
prepared by the Rani Durgavati University Jabalpur.
7. It is also argued that in the above two advertisements there is no
reservation for the women and physically handicapped persons (PwD) and
the reservation roster has also not been prepared in accordance with the
direction given by the Higher Education Department Govt. of M.P. The
roster prepared by the committee of the respondent University does not
show the name of the person presently working on the post and similarly the
roster included the posts sanction by the Government and posts created by
the Board of management for which the Higher Education Department has
taken objection. Thus it is clear that the reservation roster suffer from
illegalities and the above two advertisement have become illegal and
therefore further procedure of selection has become illegal and on that basis
no appointment can be made in accordance with Law.
8. It is further contended by learned senior counsel appearing for the
respondents that the learned Single Judge has erred in not considering the
provisions of Section 8 of the Adhiniyam 1991 whereby powers have been
given to the Chancellor of the University (referred to in Hindi as
'Kuladhipati') and further that the impugned order which was under
challenge in the writ petition directing to put the recruitment process on hold
has been erroneously considered to be an order passed by the State
Government, whereas it was the order passed by the Chancellor who is
having plenary powers in the University in view of Section 8 and is father
figure of the University and this aspect has been totally glossed over by the
learned Single Judge.
9. It is further argued that the writ petition has been allowed on the basis
of 65th and 66th meetings of Board of Management of University whereas the
said meetings were virtually set at naught by the 67th meeting of the Board
of Management which is dated 06.12.2016 and was annexed even to the
disputed first reply of the university in as much as in the 67th meeting it was
decided that the further directions to be received in the matter from the
Rajbhawan (Chancellor/Governor's House) will be followed and the matter
be put on hold. Incidentally, His Excellency the Governor of M.P. is Ex-
Officio Chancellor of the University.
10. Per Contra, it was contended by learned counsel for the
respondents/writ petitioners that the order passed by the learned Single
Judge is well justified because the earlier reply filed was not a collusive
reply and in fact there was a prayer in last paragraph of the reply to dismiss
the writ petition and therefore, it could not be said to be collusive reply. It is
further contended that the matter was enquired into by a Committee
appointed under the Chairmanship of retired District Judge, though
erroneously mentioned as retired Judge of the High Court, so also various
academicians and it was found that there has been no error or mistake or
irregularity in the selection process and therefore, learned Single Judge has
rightly ordered to give effect to the select list.
11. It is further contended that though it is true that mere selection does
not give any vested right of appointment but that discretion to appoint or not
to appoint must be for valid and cogent reasons and in the present case, it
was a case of State Government jumping into the matter without any just
cause and putting the selection process on hold and therefore, the learned
Single Judge has correctly and rightly passed the impugned order by
directing to operate the select list.
12. Heard the learned counsel for the parties and perused the record.
13. In the present case, a selection process was put into motion for
appointment on various teaching posts in the appellant University which is a
State-run open university. The said university has been established under the
provisions of Adhiniyam 1991 and a subject to the provisions of the said
Adhiniyam and statutes framed there under.
14. The University issued notification for appointment on various
teaching posts vide employment notice dated 11.02.2015 calling for
applications on various teaching posts in various departments. The said
notice is stated to be published in various newspapers printed from Bhopal.
It is interesting to note here that though the selection process was not
restricted to residents of Madhya Pradesh, but most of the candidates who
were selected either belonged to Bhopal or at the most, from other cities of
M.P. There was no written examination laid down for the purpose of
selection and the selection was only on the basis of receipt of applications
and interviews of short listed applicants.
15. The call letters for interview were issued and therefore, select list was
prepared by the University and in the intervening process a number of
complaints were received in the matter that most of the selected candidates
either are close relatives of the seniors officers and office-bearers of the
University, or of other universities or are otherwise having good
connections. When the complaints in the matter were received, the
University placed the matter in its 65th and 66th meetings conducted on
01.08.2016 and 27.10.2016 respectively placed on record as Annexure P-5
and P-6.
16. In the 65th meeting of the Board of Management of University, the
decision was taken to open sealed cover of selected candidates to take
consequential action.
17. In the 66th meeting held on 27.10.2016, the Board of Management
took a further decision to constitute a 5 members committee headed by
retired District Judge though mentioned in the said proceedings as a retired
Judge of the High Court. The enquiry committee who enquired into the
complaints in the matter of irregularities in the selection process comprised
of 5 other members most of whom were academicians or former Registrars
or officers of the Higher Education Department of the State.
18. It is evident from the perusal of the documents placed on record that
various complaints in the matter of irregularities in selection also reached
H.E. the Governor of the State who is the Chancellor of the University and
the office of Governor being the Chancellor, issued a letter dated 10.11.2016
which is immediately after the 66th meeting of Board of Management to put
the process on hold. This letter is issued by Principal Secretary to Governor
of Madhya Pradesh and is not issued by any authority of the State
Government but is issued by the office of H.E. the Governor of the State
who was Chancellor of the University. This letter was put to challenge
before the learned Single Judge on the ground that the State Government has
unnecessarily interfered in the selection process and it is the University
which is to take a final decision or final call in the matter of selection to
academic post in the university and unauthorizedly the State Government
has put the process on hold. The learned Single Judge considered it to be
interference in the selection process by the State Government, though it was
not so in view of provisions of the Adhiniyam 1991 which we proceed to
discuss infra.
19. As per Section 8 of Adhiniyam 1991 the office of Chancellor
(Kuladhipati) has been provided which reads as under:-
8. The Kuladhipati- (1) The Governor of Madhya Pradesh shall be the
Kuladhipati of the University.
(2) Subject to the provisions of sub-sections (3) and (4), the Kuladhipati
shall have the right to cause an inspection to be made, by such person or
persons as he may direct, of the University, its buildings, laboratories and
equipment, and of any Regional Centre, a Study Centre and also of the
examination, instruction and other work conducted or done by the
University, and to cause an inquiry to be made in like manner in respect of
any matter connected with the administration and finances of the
University.
(3) Where an inspection or inquiry has been caused to be made by the
Kuladhipati, the University shall be entitled to appoint a representative
who shall have the right to appear in person and to be heard on such
inspection or inquiry.
(4) The Kuladhipati may address the Kulpati with reference to the results
of such inspection or inquiry together with views and advice with regard to
the action to be taken thereon as the Kuladhipati may be pleased to offer
and on receipt of the address made by the Kuladhipati, the Kulpati shall
communicate forthwith to the Board of Management the results of the
inspection or inquiry and the views of the Kuladhipati and the advice
tendered by him upon the action to be taken thereon.
(5) The Board of Management shall communicate through the Kulpati to
the Kuladhipati such action, if any, as it proposes to take or has been taken
by it upon the results of such inspection or inquiry.
(6) Whereas the Board of Management does not within a reasonable time,
take action to the satisfaction of the Kuladhipati, the Kuladhipati may, after
considering any explanation furnished or representation made by the Board
of Management, issue such directions as he may think fit and the Board of
Management shall be bound to comply with such directions.
(7) Without prejudice to the foregoing provisions of his section the
Kuladhipati may, by an order in writing, annual any proceedings of the
University, which is not in conformity with this Act, the Statutes or the
Ordinances:
Provided that before making any such order, he shall call upon the
University to show cause why such an order should not be made and, if any
cause is shown within a reasonable time, he shall consider the same.
(8) The Kuladhipati shall have such other powers as may be specified by
the Statutes.
(Emphasis supplied)
20. As per Section 8(7) of Adhiniyam, 1991 the Chancellor has been
given an extraordinary jurisdiction to annul any proceedings of the
University which is not in conformity with the Act, Statutes or the
Ordinances. Therefore, it is clear that the letter dated 10.11.2016 which has
been issued by the office of Chancellor was in fact authorized in terms of
Section 8 (6) & (7) of Adhiniyam 1991 and cannot be said to be
unauthorized interference in functioning of the University by the State
Government because this letter which was impugned before the learned
Single Judge was not issued by the State Government but by the office of the
Chancellor of the university.
21. The learned Single Judge while allowing the writ petition held that
two replies are filed by the universities at different points of time. The first
reply is filed by document No.3924/2017 which was filed on 22.03.2017 and
affidavit of the same has been executed on 19.03.2017. In this reply all the
contentions of the writ petitioners were accepted and it was admitted by the
University that the selection process is not polluted with any irregularity and
it is fully in consonance with law and in fact in tacit manner, the State
Government and Chancellor were criticized in this reply in para-17 by
submitting that though the selection is as per law but since the State
Government and Chancellor have intervened in the matter therefore, the
University is unable to finalize the selection process. In para-17 of the reply
vide document No.3924/2017 following pleadings were made :-
That, it is respectfully submitted that the entire selection is as
per law, however in view of the intervention of the State
Government and the Secretariat of the Hon'ble Chancellor, no
further action has been taken yet. However, there is no violation
of any constitutional rights of the petitioners which they desire
to be adjudicated before this Hon'ble Court.
22. It is really surprising that the State University which is established
and funded by the State and H.E. the Governor of the State is heading the
said University as Chancellor, in reply filed before this Court is tacitly
criticizing the State Government and the Chancellor.
23. A very relevant fact to mention here that as per Section 33 (B) of the
Adhiniyam, 1991 there are special provisions carved out in the manner that
if there is emergent situation in the University, then the State Government by
notification apply the provisions of Section 33(B)(2)(3)(4)(5) of Adhiniyam
1991 to the University which are nothing but emergency provisions
empowering the State Government to remove the Vice Chancellor and other
officers of the University and to dissolve Planning Board, Board of
Management, Academic Council etc. of the University and to replace the
Vice Chancellor of the University.
24. The State Government had duly issued a notification dated
18.03.2017 exercising emergency powers under Section 33(B) of
Adhiniyam, 1991 whereby the Vice Chancellor of the University was
removed and replaced by some other person. The notification under Section
33(B) is as under:-
"No. F-52-02-2016-XXXVIII-3.-WHEREAS, on the basis of a report and
material which has been made available regarding management of affairs
of the Madhya Pradesh Bhoj (Open) University, Bhopal, the State
Government is satisfied that a situation has arisen in which the
administration of the said University cannot be carried out in accordance
with the provisions of the Madhya Pradesh Bhoj (Open) University
Adhiniyam, 1991 (No. 20 of 1991) without detriment to the interests of the
University, and it is therefore, expedient to do so that the provisions of
subsection (1) of Section 33-B of the said Act, be enforced so that the
administration can be carried out without detriment to the interest of the
University;
NOW, THEREFORE, in exercise of the powers conferred by sub-
section (1) of Section 33-B of the Madhya Pradesh Bhoj (Open) University
Adhiniyam, 1991 (No. 20 of 1991), the State Government, hereby, directs
that the Provisions of sub-section (2), (3), (4) and (5) of Section 33-B of the
said Act shall apply to the said University from 18th March, 2017 subject to
the modifications specified in the said Act."
The relevant Section 33 (B) is as under :-
"33B. Special Provision for better administration of University in certain
circumstances.-(1) If the State Government, on receipt of a report or
otherwise, is 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 expedient in the interest of the University so to do, it may by
notification, for reasons to be mentioned therein, direct that the provisions
of sub-sections (2), (3), (4) and (5) shall, as from the date specified in the
notification (hereinafter in this section referred to as the appointed date),
apply to the University.
(2) The notification issued under sub-section (1) (hereinafter referred to as
the notification) shall remain in operation for a period of one year from the
appointed date and the State Government may, from time to time, extend the
period by such further period as it may think fit so, however that the total
period of operation of the notification does not exceed three years.
(3) As from the appointed date the Kulpati, holding office immediately
before the appointed date, shall notwithstanding that his term of office has
not expired, vacate his office, and the Kuladhipati shall simultaneously with
the issue of the notification appoint the Kulpati and the Kulpati so
appointed shall hold office during the period of operation of the
notification:
Provided that the Kulpati shall be appointed by the Kuladhipati in
consultation with the State Government and may be removed by the
Kuladhipati in the like manner:
Provided further that the Kulpati may notwithstanding the expiration of the
period of operation of the notification continue to hold office thereafter
until his successor enters upon office but this period shall not exceed six
months.
(4) As from the appointed date, the following consequences shall ensue,
namely:-
(1) every person holding office as a member of the Planning Board,
the Board of Management or the Academic Council, as the case may
be, immediately before the appointed date shall cease to hold that
office;
(II) the Kulpati appointed under sub-section (3) shall exercise the
powers and perform the duties conferred or imposed by or under
this Act, on the Planning Board, the Board of Management the
Board of Management or Academic Council:
Provided that the Kuladhipati may, if he considers it necessary so to do,
appoint a committee consisting of an educationist, an administrative expert
and a financial expert to assist the Kulpati so appointed in exercise of such
powers and performance of such duties:
Provided further that such committee shall be appointed in consultation
with the State Government.
(5) Before the expiration of the period of operation of the notification or
immediately as early as practicable, thereafter, the Kulpati Kulpati shall
take steps to constitute the Planning Board, the Board of Management and
Academic Council in accordance with the provisions of the Act, and the
Planning Board, the Board of Management and Academic Council as so
constituted shall begin to function on the date immediately following the
date of expiry of the period of operation of the notification or the date on
which the respective bodies are so constituted whichever is later:
Provided that if the Planning Board, the Board of Management and
Academic Council are not constituted before the expiration of the period of
operation of the notification, the Kulpati shall on such expiration exercise
the powers of each of these authorities subject to prior approval of the
Kuladhipati till the Planning Board, the Board of Management or
Academic Council, as the case may be, is so constituted.]"
25. Interestingly, the first reply vide document Noo.3924/2017 was sworn
before the notary public on 19.03.2017 at Bhopal by Director (CS) of the
University. When during the course of argument of these appeals we posed a
query to counsel for the respondents that who had appointed the said person
as Officer In-charge of the case, then it was admitted by the counsel for the
respondents that he must have been appointed by the outgoing Board of
Management or the Vice Chancellor as Officer In-charge of case.
26. We are really surprised in the manner that once the State Government
by exercising its emergency powers under Section 33(B) of Adhiniyam 1991
of the university had removed the Vice Chancellor of the University on
18.03.2017, then what was the urgency with the Officer In-charge appointed
by outgoing Board of Management and Vice-Chancellor to have sworn
affidavit of reply on 19.03.2017.
27. The counsel for the respondents had vehemently argued that the
Board of Management of University is having plenary powers under Section
15 of Adhiniyam 1991 and that university can frame statues under Section
25. However, we are not apprised of any enabling provisions under which
the Board of Management or any other authority of the University would be
superior to the Chancellor who is father figure of the university. The
Supreme Court in the case of Hitendra Singh Vs. P.D. Krishi Vidyapeeth,
(2014) 8 SCC 369, while considering the analogous provisions of Punjabrao
Deshmukh Krishi Vidyapeeth, has held as under :-
21. A plain reading of the above shows that apart from being
the ex officio Head of the University, the statute specifically
confers upon the Chancellor the power to call for his
information any paper relating to the administration of the
affairs of the University and upon such request the University is
bound to comply with the same. Sub-section (5) vests the
Chancellor with the power to annul any proceeding of any
officer or authority if the same is not in conformity with the
provisions of the Act, the statutes or the Regulations or which is
prejudicial to the interest of the University. A conjoint reading
of Sections 11 and 15, in our opinion, leaves no manner of
doubt that the Chancellor exercises ample powers in regard to
the affairs of the University and in particular in regard to the
affairs of the administration of the University. The power to
direct an inquiry into any matter concerning the administration
of the University is only one of the facets of power vested in the
Chancellor. The exercise of any such power is not subject to
any limitation or impediment understandably because the
power is vested in a high constitutional functionary who is
expected to exercise the same only when such exercise becomes
necessary to correct aberrations and streamline administration
so as to maintain the purity of the procedures and process
undertaken by the University in all spheres dealt with by it. The
power to direct an inquiry is meant to kick-start corrective and
remedial measures and steps needed to improve the functioning
of the University as much as to correct any illegal or improper
activity in the smooth running of the administration of the
University. As a father figure holding a high constitutional
office, the Chancellor is to be the guiding spirit for the
Universities to follow a path of rectitude in every matter
whether it concerns the administration or the finances of the
University or touches the teaching and other activities that are
undertaken by it. The legislature, it is obvious, has considered
the conferment of such powers to be essential to prevent
indiscipline, root out corruption, prevent chaos or deadlock in
the administration of the University or any office or
establishment under it that may tend to shake its credibility
among those who deal with the institution.
(emphasis supplied)
28. In the second reply filed before the learned Single Judge the
University had come out with very detailed pleading in the matter of exact
irregularities that have taken place in the selection process and the
complaints received by the authorities of the State and the office of
Chancellor were narrated in detail and it was narrated in detail that what are
the exact irregularities in the selection process on account of which the
Chancellor has intervened into the matter and directed to put the selection
process on hold. Indeed, the learned Single Judge in its order under
challenge has considered the subsequent reply and even considered the
averments in the subsequent reply that the earlier reply filed on 21.03.2017
should not be considered. The learned Single Judge in the impugned order
considered the pleadings in the second reply in the following manner:-
"6. Respondent No.2 has again filed reply on 28/06/2017 contending that
earlier reply filed on behalf of respondent No.3 may not be considered and
separate reply has been filed on behalf of respondent No.3. In the said
reply, respondent No.3 has stated that two advertisements i.e. dated
09/02/2015 and 11/02/2015 have been published for inviting applications
for Professor, Associate Professor and Assistant Professor for the different
department of the university. In the above advertisements, some posts have
been sanctioned by the Higher Education Department, Govt. of Madhya
Pradesh and some posts have been created by the Board of Management
for which no prior approval has been taken from the Government. Before
the above two advertisements, the Government of Madhya Pradesh, Higher
Education Department vide its order dated 11/12/2014 has directed that for
the sanctioned teaching posts in the universities, roster should be according
to the University-Grant-Commission, roster preparation rules and M.P. Lok
Seva (Anusuchit Jatiyon, Anusuchit Jan Jatiyon Aur Anya Pichhade Vergon
Ke Liye Arakshan) Adhiniyam, 1994 amended 2002. It has also directed
that roster should be prepared by ascertaining reservation according to the
model form prepared by the Rani Durgawati Uniersity, Jabalpur.
7. The respondents have also stated that in above two advertisements, there
is no reservation for the women and physically handicapped persons and
the reservation roster has also not been prepared in accordance with the
direction given by the Higher Education Department, Govt. of Madhya
Pradesh in the format of the Rani Durgawati University, Jabalpur. In the
reservation roster, two posts of professors and six posts of Assistant
Professor have been sanctioned by the State Government vide letter dated
08/10/1997 which were to be filled up on deputation and not by regular
appointment but these posts have also been included in the reservation
roster prepared by the committee. The qualifications which prescribed in
the said advertisement for the teaching posts are as per the UGC
Regulation, 2010. In UGC Regulation, in addition to other qualifications
"good academic record" has to be defined by the university concerned, but
the university has not specified the same in the advertisement. Thus, the
advertisement suffers from initial illegalities. As per amended UGC
Regulation, for category-I, the minimum API score required for teacher is
75 based on the self- assessment. 300 points API is required to be
considered by the selection committee. It is pertinent to mention here that
the selection committees have been constituted by the Kuladhipati under
Section 49(2) of the M.P. Vishwavidyalaya Adhiniyam, 1973.
8. Statute No.9 of the respondent-university provides constitution of
selection committee for the appointment of the head of the department, Vice
President, Course Writer/Coordinator for which the committee includes
four subject experts nominated by Kuladhipati. One of the expert out of the
four will be from Open University, but, in the above direct recruitment
process the aforesaid provisions have not been followed and due to this, the
whole process has become defective and illegal and on that basis the
selection for all the appointments cannot be permitted legally and liable to
be cancelled with liberty/direction to re-advertise for fresh appointment.
The selection committee of the subject post concerned, has not followed the
norms prescribed by the UGC Regulation and API statement have not been
filled in the prescribed form. The committee has not examined and
scrutinized the academic records of each applicant minutely and the
statement of summary of marks awarded by the committee are also in typed
manner and some of the columns of marks are blank, without any
explanation. It has further been submitted that from perusal of the above
statement of the summary marks, it is clearly depict therefrom that the
proposed candidates have been favoured out of the way by awarding
highest marks in interview. The respondents have further submitted that
complaints were made against the said selection to the Higher Education
Department. The Higher Education Department vide its letter dated
19/09/2016 asked Registrar of the University to submit point-wise facts
with documents, report. Accordingly, the Registrar of the university has
submitted detailed factual report to the State Government vide report dated
04/10/2016. Thereafter His Excellency the Governor's office vide order
dated 10/11/2016 has directed the university that the matter of the selection
of 14 teaching posts should not be placed before the Board of Management
till further orders of His Excellency the Governor's Secretariat. In spite of
various complaints and State Government direction, the matter has been
placed before the Board of Management. The Board of Management in its
66th meeting dated 27/10/2016 without examining the complaints, itself,
has constituted a five members committee. The meeting of the said
committee was held on 04/11/2016 and on the same day, the said committee
has submitted its report. The respondents have further submitted that the
committee has not examined the subject matter in question properly and
thoroughly and in the said report no reasoned findings have been given by
the committee. Thus, in light of the aforesaid, learned counsel for the
respondents submit that the selection process from beginning suffers from
legal defect as well as illegal and, therefore, the same cannot be permitted
to be implemented and on that basis, the petitioners are not entitled to be
appointed on the said post. Learned counsel for the respondents relied
upon the judgments delivered by the Apex Court in the cases of Director,
SCTI for Medical Science & Technology and another Vs. M. Pushkaran
reported in (2008) 1 SCC 448, East Coast Railway and another Vs.
Mahadev Appa Rao and others, reported in (2010) 7 SCC 678 and State of
U.P. and others Vs. Rajkumar Sharma and others reported in (2006) 3
SCC 330."
29. Despite noting the serious irregularities in the selection process as
brought out by the appellants in their subsequent reply as also mentioned by
us in earlier part of this order i.e. in paragraphs 4 to 7 above, the learned
Single Judge simply discarded the aforesaid pleadings only on the ground
that there is no application on record to withdraw the earlier reply and relied
on the pleadings made in the first reply which, as discussed above, was filed
under suspicious circumstances.
30. The counsel for the respondents have tried to justify swearing of
affidavit of first reply on 19.03.2017 and its filing on 22.03.2017 on the
ground that the notification under Section 33 (B) of Adhiniyam, 1991 was
published in the official Gazette on 20.03.2021. Be that as it may, but it
cannot be inferred that the University Management Committee came to
know about removal of Vice Chancellor and Board of Management etc. only
after publication of notification in official Gazette. Subsequent publication is
for information of all concerned including third parties, but it cannot be
inferred that the person to whom it is addressed, that it also did not have any
information of the same. Nothing has been brought on record to show that
the University office did not receive the said order prior to 22.3.2017.
31. It appears to this Court that indeed it was a case where the outgoing
Management of the University wanted to place a reply on record in any
manner supporting the averments of the petition. The learned Single Judge
has relied on various provisions of Adhiniyam 1991 like Section 25 which
relates to framing of statutes of university and Section 15 whereunder Board
of Management has been constituted. However, all these authorities are
under supervision of Chancellor under Section 8 of Adhiniyam which has
not been gone into by the learned Single Judge, while erroneously holding
that the University being a autonomous body, decision of its Board of
Management, would prevail.
32. During the course of arguments, the learned counsel for the
respondents were unable to satisfy the query of the Court that how the
illegalities mentioned in detail in subsequent reply are not met out. They
only relied upon the report of enquiry committee constituted by earlier
management of University which had given a clean chit to the appointments
to the selection process. There is a clear averment in the subsequent reply of
the University that the women's reservation provision was not given effect
to. This issue has not been replied by the respondents in any manner and
indeed we have gone through the reservation roaster prepared and we have
seen ourselves that no reservation for women has been provided in the roster
duly placed on record by the University in its subsequent reply. All these
issues have been simply glossed over by the learned Single Judge by holding
that whatever decision has been taken by the Board of Management in its
65th and 66th meeting has to be given effect to. The learned Single Judge has
not considered the effect of 67th meeting of Board of Management whereby
Board of Management has decided to follow the instructions of the
Chancellor and therefore, the recommendations and decisions in the 65th and
66th meetings were automatically put to hold and now it was for the
Chancellor to take a call in the matter. However, the learned Single Judge
has set aside the directions of the Chancellor vide (Annexure P-7) treating it
to be an undue and unauthorized interference in the University by the State
Government, which is not so because the letter (Annexure P-7) has been
issued by Chancellor and the powers are traceable to Section 8 of
Adhiniyam 1991.
33. The State had removed the Board of Management and the Vice
Chancellor by exercising powers conferred on the State during pendency of
the writ petition i.e. on 18.03.2017. In the said notification that we have
quoted above, it is duly recorded by the State Government that on the basis
of report and material made available regarding management of affairs of
university the State Government deems it fit to exercise extraordinary
powers under Section 33(B) of the Adhiniyam 1991.
34. The complaint received by the State Government which led to taking
action under Section 33(B) is also placed on record and letter dated
30.01.2017 was issued by the Chancellor requesting the State Government
to take appropriate decision in the matter. The letter dated 30.01.2017 is as
under :-
fnukad 30 tuojh] 2017
e/;izns'k Hkkst ¼ eqDr ½ fo'ofo|ky;] Hkksiky esa 'kS{kf.kd inksa ij dh
tk jgh fu;qfDr;ksa esa vfu;ferrk fd, tkus ds dqylfpo ds izfrosnu ds
ifjizs{k; esa vkids i= dzekad 160@ih ,l-,p-bZ @16 fnukad 09-11-16 ds
}kjk izdj.k esa tkap dh vko';drk izfrikfnr dh tkdj izdj.k
dqykf/kifrth ds laKku esa ykdj vko';d funsZ'k tkjh djokus dk vuqjks/k
fd;k x;k FkkA
bl laca/k esa bl dk;kZy; ds i= fnukad 10-11-16 ds }kjk dqyifr
dks funsZf'kr fd;k x;k fd vkxkeh vkns'k rd izc/a k cksMZ ds le{k 'kS{kf.kd
inksa ij p;u laca/kh ekeys dks izLrqr ugha fd;k tk,A
dqyifr ds izdj.k eas izkIr i= fnukad 10-11-2016 esa ;g mYys[k
fd;k x;k gS fd fo'ofo|ky; ds izca/k cksMZ us 66oh cSBd fnukad 27-10-
2016 esas 'k{kSf.kd inksa dh fu;qfDr;ksa ij dqylfpr yxk, x, iz'ufpUg dh
tkap gsrq ,d lfefr xfBr dh Fkh ftlus izfrosnu fnukad 04-11-16 esa ;w-
th-lh ds fu;eksa ds ifjizs{; esa dqylfpo dh vkifRr dks fujk/kkj ik;k gS
,oa 'kS{kf.kd inksa ij fu;qfDr i= tkjh djus dh vuq'kalk dh gSA ¼Nk;kizfr
layXu½
d`i;k dqyifr ls izkIr tkudkjh dk ijh{k.k djokdj rF;kRed Vhi
bl dk;kZy; dks fHktokus dk d"V djsAa
35. Prior to that complaints were being received by the State Government
also which are also placed on record where under it has been mentioned that
corruption has been made in the matter of charging of money for securing
appointment in the University and various selected candidates have been
named who are close relatives of Ex Vice Chancellor, senior officers of
Higher Education Department, Ex Ministers of State Government, Vice
Chancellors of other Universities of the State etc. and it has been mentioned
that though the selection process was open to all the candidates throughout
India but all selected candidates belonged to Bhopal and some of them
belonged to other places of Madhya Pradesh which also indicates that there
was no proper selection process was carried out.
36. The University in the subsequent reply had brought out the aforesaid
irregularities in much detail which though were noted by the learned Single
Judge but were simply ignored by the learned Single Judge by holding that it
was the Board of Management and the Vice Chancellor who is empowered
under the statutes of university to take action, and the learned Single Judge
overlooked the provisions of Section 8 of the Adhiniyam 1991 so also
Section 33(B) of the said Adhiniyam.
37. The aforesaid facts establish that supersession of Board of
Management and Vice Chancellor of the university was in continuation of
the complaints received in the matter of present selection and therefore, the
first reply filed by the university was clearly malicious act carried out by the
OIC appointed by the management of the University who had already been
removed on that date despite which he filed reply on 21.03.2017.
38. So far as the other contentions raised that though selection does not
give a vested right but there should be some reasoning to deny appointment,
the said legal position is not in dispute. It is settled in law that a candidate
does not acquire any vested right for appointment merely on being placed in
the merit list/select list. In the case of State of Haryana Vs. Subash
Chander Marwaha & Others reported in (1974) 3 SCC 220, it has been
held by the Supreme Court that even if the candidate has been selected, then
also, the State has a right either to appoint or not to appoint a candidate. In
the case of Jatinder Kumar and Others Vs. State of Punjab & Others
reported in (1985) 1 SCC 122, again the Supreme Court held that the
process for selection and selection for the purpose of recruitment against
anticipatory vacancies does not create a right to be appointed on the post
which can be enforced by a Writ of mandamus. Similar view was taken by a
constitution bench of the Supreme Court in the case of Shankarshan Das
Vs. Union of India reported in (1991) 3 SCC 47. In the case of S.S. Balu
and Another Vs. State of Kerala and Others reported in (2009) 2 SCC
479, the Supreme Court held that the State as an employer has a right to fill
up or not to fill up the same post. A candidate will not have any legal right
claiming a writ of mandamus unless he shows discrimination or arbitrariness
in regard to filling up of the vacancies. Considering the aforesaid legal
position, a three Judges Bench of the Hon'ble Supreme Court in the case of
Dinesh Kumar Kashyap and Others Vs. South East Central Railway
and Others reported in (2019) 12 SCC 798 has held that after selection,
appointment may be denied on some justifiable, non-arbitrary reason. It
must give some plausible reason for not filling up the posts. The courts
would normally not question the justification but the justification must be
reasonable.
39. In the present case, it is duly brought on record that the selection
process was highly polluted on account of selection being opaque and partial
relating to which various complaints were received in detail. There was
sufficient reasoning placed on record to justify denial of appointment despite
selection. Pleadings were made before the learned Single Judge by the
University which have not been considered by the learned Single Judge who
held that the decision of Board of Management shall prevail over everything
else. We have gone through the material placed on record alongwith the
subsequent reply filed before the Writ Court and it leaves no doubt to
conclude that the selection process was polluted with arbitrariness and
illegalities as narrated in detail above. The selectees on basis of such
selection process would not have any right to claim appointment and denial
of appointment to them cannot be faulted with.
40. In view of the above, the order of the learned Single Judge deserves to
be and is hereby set aside and the writ petitions filed by selected candidates
stand dismissed. The selection process was initiated more than 10 years ago
and is found to be polluted. It would be now open for the University to issue
fresh advertisement and fill the posts in accordance with law by giving
chance to all the eligible candidates to participate in the selection process. In
terms of aforesaid, the writ appeals are allowed.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
nks
