Mohan Lal Sukhadiya University vs Bheem Raj Patel
2021 Latest Caselaw 12711 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 447/2021

1. Mohan Lal Sukhadiya University, Through Its Registrar, Udaipur, Rajasthan.

2. The Registrar, Mohan Lal Sukhadia University, Udaipur, Rajasthan.

----Appellants Versus Bheem Raj Patel S/o Shri Kanna Ji Patel, Aged About 46 Years, R/o Warden Quarter, Rajasthan Patel Hostel, Shobhagpura, Udaipur, Rajasthan.

----Respondent AND D.B. Spl. Appl. Writ No. 458/2021

1. Mohan Lal Sukhadiya University, Through Its Registrar, Udaipur, Rajasthan.

2. The Registrar, Mohan Lal Sukhadia University, Udaipur, Rajasthan.

----Appellants Versus Hemraj Singh Choudhary S/o Shri Digmber Singh Chaudhary, Aged About 41 Years, R/o 231, Jyoti Colony, Glass Factory, Udaipur, Rajasthan.

----Respondent

For Appellant(s) : Mr. M.S. Singhvi, Sr. Advocate Mr. Kuldeep Mathur.

Mr. Ankur Mathur.

HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE VINIT KUMAR MATHUR

Order

13/08/2021

Challenge has been made in the present special appeals to

the orders dated 15.07.2021 passed by the Hon'ble Single Judge

in S.B. Civil Writ Petition No. 7673/2021 and 7671/2021, which

are reasoned interim orders, by which the Hon'ble Single Judge

admitted the writ petitions filed by the private respondents-writ

(2 of 4) [SAW-447/2021 & SAW-458/2021]

petitioners and directed the stay of the operation of the orders

dated 02.06.2021(Annexure 34&35) i.e. orders of discharge.

(since the private respondents-writ petitioners were under

probation)

The issue involved in the present case has been dealt with by

the Hon'ble Single Judge in paragraphs 13 and 14 of the impugned

orders, which are quoted herein below:-

"13. Be that as it may. In the prima facie opinion of this court upon perusal of minutes of the meeting dated 16.03.2017 and 01.12.2016, it cannot be said with certitude that the Academic Council had adopted requisite qualification in relation to Assistant Director (Physical Education) as were applicable in the University of Rajasthan.

14. The argument of the University that the resolution adopted by the Academic Council was to prescribe qualification similar to Rajasthan University or at least 50% marks in graduation even for the Assistant Director (Physical Education) thus, does not appear to be correct, if the record is seen. Even if it is accepted that there was manipulation, the fault lies at the end of the University or its Administration. The petitioner cannot be made a scapegoat and scooped out of the job, after four years of the selection/appointment."

Mr. Singhvi, learned Senior Counsel appearing for the

appellants University contended that no interim order ought to

have been passed against the order of discharge and the learned

Single Judge erred in passing the interim direction. In this respect,

he has placed reliance on the judgment of the Hon'ble Supreme

Court in the case of State of UP and Ors. v/s Sandeep Kumar

Balmiki and ors. (2009 (17) SCC 555) in order to support his

contention that the High Court ought not to have granted interim

order because if such a relief is granted at interim stage, writ

petition shall stand automatically allowed without permitting the

parties to place their respective cases at the time of final hearing

of writ petition.

(3 of 4) [SAW-447/2021 & SAW-458/2021]

After hearing the learned counsel for the appellants and

perusing the order impugned as well as the documents appended

to the writ appeal, we are of the considered view that admittedly

the order impugned before us was passed after filing of counter

affidavit by the appellant University. So on the factual basis the

Hon'ble Single Judge passed the order purportedly after perusing

the stand taken by the appellant University in the proceedings

before him. Even apart from this, we are prima facie in agreement

with the views expressed by the Hon'ble Single Judge in the order

impugned to the extent that the advertisement issued by the

appellant University stipulated at least second division in

graduation. Sub-para (1) of para VI of Rules of 2017 prescribes

the following educational qualification for the post of Assistant

Director:-

"VI. Physical Education & Sports

1. Assistant Director

(i) XXXXXX "Good academic record, wherever occurring in these provisions means an average of at least 55% marks in these examinations preceding to Masters' Degree with at least second division* in graduation and any one of Secondary/High School, Higher Secondary/Senior Secondary or equivalent grades in the point scale wherever grading system is followed without including any grace marks and/or rounding off to make it 55% or 50% as the case may be."

Admittedly, the writ petitioners possess the necessary

qualifications as found by the learned Single Judge although

disputed by Mr. Singhvi on behalf of the appellant University.

We are of the considered view that the learned Single Judge

not only considered the stand taken by the University but also

came to the prima facie finding that the stand of the University or

the resolution adopted by the Academic Council requiring the

prescribed qualification similar to Rajasthan University or at least

(4 of 4) [SAW-447/2021 & SAW-458/2021]

50% marks in graduation even for the post of Assistant Director

(Physical Education) does not appear to be correct. On perusal of

the Academic Council Resolution at Annexure-R/4 dated

01.12.2016 at running page 274, the following is found:-

"It was therefore, resolved that a committee of the following may be constitute to examine the proposal of the University of Rajasthan for Good Academic Record for Assistant Director of Physical Education and the same will be decided on consideration of the recommendation of the committee by the Academic Council in its next meeting."

(underlined for emphasis) In other words, from the above, it is apparent that no

decision had yet been taken by the Academic Council on the

issues regarding fixation of any percentage and we do not find

anywhere in the record produced in this appeal that any

conclusion has been reached by the Committee, purportedly to be

created by the University for adjudicating regarding what should

be requisite minimum qualification for the post of Assistant

Director (Physical Education).

In view of the above, we are of the considered view that

there is no merit in the present appeals. The appeals are

accordingly dismissed.

However, keeping in view the nature of the challenge made

and keeping in view the fact that counter affidavit has already

been filed by the University, we request the Hon'ble Single Judge

to take up the matter pending before him and dispose of the same

expeditiously, preferably within a period of three months.

(VINIT KUMAR MATHUR),J (INDRAJIT MAHANTY),CJ

171&172-jayesh/-

Powered by TCPDF (www.tcpdf.org)