Telangana High Court
Khaja Nizamuddin, vs Union Of India on 1 November, 2022
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 23323 of 2017
Between:
Khaja Nizamuddin
... Petitioner
And
The Union of India and others
... Respondents
JUDGMENT PRONOUNCED ON: 01.11.2022
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
____________________
SUREPALLI NANDA, J
WP_23323_2017
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 23323 of 2017
% 01.11.2022
Between:
# Khaja Nizamuddin
..... Petitioner
And
$ The Union of India and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr K.Rama Subba Rao
^Counsel for the Respondent No.1: Asst. Solicitor General
^ Counsel for the Respondent No.2: Mrs. Megha Rani Agarwal
^ Counsel for the Respondent No.3 : Sri Muddu Vijay
? Cases Referred:
(1998) 8 SCC 194,
(2007) 1 SCC 575,
1991 Supp(1) SCC page 600
(1985) 3 SCC 545,
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 23323 of 2017
ORDER:
Heard Sri K.Rama Subba Rao, learned counsel for the
petitioner, learned Assistant Solicitor General of India
appearing for the 1st respondent, Mrs. Megha Rani Agarwal,
learned Counsel appearing for respondent No.2 and Sri Muddu
Vijay, learned counsel appearing for Respondent No.3.
2. This writ petition is filed to declare the order bearing
No.F.59-2/2010(CU), dated April, 2017 of the 2nd respondent
and proceedings bearing No.MANUU/ER-II/PF.501/2017-
18/193, dated 23.05.2017 of the 3rd respondent as illegal,
arbitrary and consequently direct the 2nd respondent to accord
its approval for creation of posts of Drivers as proposed by
the 3rd respondent by its letter bearing No.
MANUU/PVCO/11/1561, dated 27.11.2014 and redirect the 3rd
respondent to reinstate the petitioner into service as driver
with all consequential benefits.
3. The 2nd and 3rd respondent filed their counter affidavits.
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4. The petitioner also filed reply affidavit reiterating the
contentions raised in the writ affidavit.
5. Main contentions put-forth by the Counsel for the
Petitioner are as follows:
a) That there is no notice issued to the petitioner before
terminating the services of the petitioner as Driver vide the
impugned orders of the 3rd Respondent dated 23.05.2017.
b) That the 2nd Respondent has got nothing to do with the
sanction of the posts except to discharge its functions as
provided under Section 12 of the University Grants
Commission Act, 1956.
c) That Statute 13(iii) of the Statutes of the 3rd
Respondent confers power on the Executive Council of the 3rd
Respondent to create administrative, ministerial and other
necessary force and to make appointment thereto in the
manner prescribed by the Ordinances and accordingly the
Executive Council in its 47th Meeting held on 12.02.2014 had
created 5 posts of Drivers against the requirement of 8 and
accordingly issued Notification for filling up of the same.
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d) That the letters dated 27.11.2014, 16.01.2017 and
14.02.2017 of the 3rd respondent addressed to the 2nd
respondent categorically explained the need for creation of
posts of drivers in the 3rd respondent University, the 2nd
respondent however, did not consider the same.
e) That the 2nd respondent failed to give credence that the
highest authority of the 3rd respondent University i.e.,
Executive Council initiated the creation of the posts and the
2nd respondent simply rejected the proposal of the 3rd
respondent merely saying that the proposal of the University
for creation of 5 posts of drivers is not agreed by the UGC.
Therefore, it is clear non-application of mind by the 2nd
respondent.
f) That the 3rd respondent ought not have notified the
posts without obtaining prior approval from the 2nd
respondent UGC.
g) The impugned order bearing No.F.59-2/2010(CU) of the
2nd respondent dated April, 2017 in rejecting the proposal of
the 3rd respondent University for creating of 5 posts of Drivers
on the pretext that it is not agreed by the UGC and further
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treating the same as unapproved posts and also the
expenditure incurred on the said posts as unapproved
expenditure and further directing the 3rd Respondent to fix the
responsibility and recover from the salary of the person
responsible is highly illegal and is liable to be set aside.
h) That the consequential orders dated 23.05.2017 vide
Proceedings bearing No. MANUU/ER-II/PF.501/2017-18/193,
of the 3rd Respondent referring to the resolution of the
Executive Council at its 61st Meeting held on 23.05.2017 in
compliance to the directions of the 2nd Respondent vide its
Letter bearing No.F.59-2/2010(CU) of the 2nd respondent
dated April 2017 and further terminating the Petitioner with
immediate effect without issuing notice to the Petitioner is
illegal, arbitrary, and in clear violation of principles of natural
justice and therefore that the writ petition should be allowed
as prayed for.
6. Main contentions put-forth by the learned counsel
for the 2nd respondent are as follows:
a) That five posts of drivers created by the Executive
Council of the 3rd respondent University is without the
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approval of the Finance Committee of the 3rd respondent
University i.e., Maulana Azad National Urdu University.
b) That the creation of new posts require the approval of
the UGC and further that MHRD vide its letter dt. 08.04.1998
(F/B) has clearly mentioned that no new posts/pay scales
should be created or upgraded by the Universities themselves
without the prior approval of MHRD/UGC.
c) That UGC vide its letter dt. 05.05.2008 addressed to all
Central Universities, Deemed to be Universities and Delhi
Colleges has informed that University must ensure that the
University may not create any position or upgrade the existing
positions to the higher level without the approval of UGC.
d) That UGC vide the impugned letter dated April 2018
very clearly mentioned that the 5 posts of the drivers created
by the EC of the 3rd respondent University without the
approval of MHRD/UGC will be treated as unapproved posts
and the expenditure incurred on the above posts will be
treated as unapproved expenditure and that therefore the
Writ Petition needs to be dismissed in limini.
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7. Main contentions put-forth by the learned counsel
for the 3rd Respondent are as follows:
a) That the Respondent No.3 vide its letter dt. 16.01.2017
addressed to the 2nd Respondent sought ex post facto
approval of the decision of the Executive Council for creation
of 5 posts of drivers. Subsequently, a reminder letter dated
14.02.2017 was also forwarded to the 2nd Respondent UGC.
b) That the Executive Council of the 3rd respondent
University in its 60th Meeting held on 18.03.2017 extended
the probation of petitioner and 3 other drivers for a period of
one year w.e.f. 09.03.2017 in order to maintain the status-
quo and pending receipt of Ex post facto approval from the
2nd respondent UGC.
c) That respondent No.2 vide its communication dated
04.05.2017 informed the 3rd respondent University that
proposal of the University for creation of five posts of drivers
was not agreed to and therefore, the five posts of the drivers
created by the EC of the 3rd Respondent University without
the approval of MHRD/UGC will be treated as unapproved
posts and the expenditure incurred on the above posts will be
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treated as unapproved expenditure and further the 2nd
Respondent asked the 3rd respondent University to fix the
responsibility and recovery may also be made from the salary
of the person for taking illegal decision inspite of specific
instructions issued by the 2nd Respondent in this regard and in
response to the said communication of UGC dt. April 2017,
the Executive Council of the 3rd respondent University vide
their resolution dt. December 2014 resolved to terminate the
services of the Petitioner herein along with 4 others who are
continuing on probation with immediate effect.
d) That the Petitioner was only a probationer and had not
been confirmed in the service and as such there is no legal or
other infirmity in the decision of the University and therefore
the writ petition needs to be dismissed.
RELEVANT LEGAL PROVISIONS :
8. Section 2(h) of the Maulana Azad National
University Act, 1996 (No.2 of 1997) defines that
employee means any person appointed by the
University and includes teachers and other staff of the
University.
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9. As per Section 20(1) of the Maulana Azad
National University Act, 1996 (No.2 of 1997) the
Executive Council shall be the Principal Executive Body
of the University.
10. Section 25 and relevant clauses of the Maulana
Azad National University Act, 1996 (No.2 of 1997)
reads as under:
Subject to the provisions of the Act the Statutes may
provide for all or any of the following matters namely:-
Clause(d) :
the appointment of teachers and other academic staff
and other employees of the University, their
emoluments and other conditions of service.
Clause (f) :
the condition of service of the employees including
provision for pension, insurance and provident fund,
the manner of termination of service and disciplinary
action.
11. Section 5 (xx) of the Maulana Azad National
University Act, 1996 (No.2 of 1997) reads as under:
"to lay down conditions of service of all categories of
employees including their code of conduct;
12. Statute 13 and relevant clauses of the Statues of
the University reads as under:
Statute 13:
Powers and Functions of the Executive Council.
Statue 13(1)
the Executive Council shall have the power of
management and administration of the revenue and
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property of the University and the conduct of all
administrative affairs of the University not otherwise
provided for.
Statute 13 (2)
subject to the provisions of this Act, the Statutes and
the Ordinances, the Executive Council shall, in addition
to all other powers vested in it, have the following
powers, namely:-
Statute 13 (2)(i)
to create teaching and academic posts, to
determine the number and emoluments of such
posts and to define the duties and conditions of
service of Professors, Readers, Lecturers and
other academic staff and Principals of
Institutions maintained by the University.
Statute 13(2)(iii)
to create administrative, ministerial and other
necessary posts and to make appointments
thereto in the manner prescribed by the
Ordinances.
13. Statute 26 and relevant clauses reads as under:
Statute 26:
Removal of the Employees of the University :
Statute 26(2)
Notwithstanding anything contained in the terms of
the contract of appointment or of any other terms and
conditions of service of the employees, the Executive
Council in respect of teachers and other academic
staff, and the appointing authority, in respect of other
employees, shall have the power to remove a teacher
or a member of the academic staff or as the case may
be, other employee on ground of misconduct.
Statute 26 (3)
Save as a foresaid, the Executive Council or as the case
may be, the appointing authority, shall not be entitled
to remove any teacher, member of the academic staff
or other employee except for a good cause and after
giving three months notice or on payment of three
months salary in lieu thereof.
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Statute 26 (4)
No teacher, member of the academic staff or other
employee shall be removed under clause (2) or clause
(3) unless he has been given a reasonable opportunity
of showing cause against the action proposed to be
taken in regard to him.
DISCUSSION & CONCLUSION :
14. A bare perusal of Statutes 26(3) and 26(4) of the
Maulana Azad National University Act, 1996 (No.2 of
1997) (extracted above) clearly indicates that no
employee can be removed unless he has been given a
reasonable opportunity of showing cause against the
action proposed to be taken in regard to him.
Employee is defined under the Act under 2(h) and
Employee means any person appointed by the
University and includes teachers and other staff of the
University. Admittedly, in the present case no notice
has been issued to the Petitioner prior to terminating
the services of the petitioner vide the impugned order
dated 23.05.2017 of the 3rd respondent herein.
15. A bare perusal of the Employment Notification
No.33/2014, dated 27.10.2014 issued by the 3rd
Respondent notifying five posts of drivers and a bare
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perusal of the order of appointment dt. 05.03.2015
issued to the Petitioner by the 3rd Respondent vide
No.MANUU/ER.II/F.165/ 2014-15/1819 clearly
indicates that there is no mention nor any reference
that the said appointments sought to be made and the
appointment order issued to the Petitioner herein is
subject to EX-POST FACTO approval of the University
Grants Commission. Admittedly the Petitioner herein
worked from 05.03.2015 to 23.05.2017.
16. A bare perusal of the contents of the 3 letters
addressed by the 3rd Respondent herein dt. 27.11.2014,
16.01.2017 and 14.02.2017 to the Secretary, University
Grants Commission, New Delhi, the 2nd Respondent
herein clearly indicate that the 3rd Respondent
categorically explained the need for creation of posts of
drivers in the 3rd Respondent University and requested
the 3rd Respondent to kindly accord ex-post facto
approval.
17. Insofar as the power of the 3rd Respondent is
concerned in appointing the Petitioner the same can be
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traced to Section 5 Clause (xx), Sec.20(1), Sec. 25(d),
Section 25 (f) of the Maulana Azad National University
Act, 1966 (No.2 of 1997) (extracted above) and also to
Statutes 13(iii) of the Statutes of the 3rd Respondent
university which confers power on the Executive
Council of the 3rd Respondent (extracted above) to
create administrative, ministerial and other necessary
force and to make appointment thereto in the manner
prescribed by the Ordinances and accordingly the
Executive Council in its 47th Meeting held on
12.02.2014 had created 5 posts of Drivers against the
requirement of 8 and accordingly issued Notification for
filling up of the same.
18. The Apex Court in its judgment reported in (1998)
8 SCC 194 in Basudeo Tiwary v. Sido Kanhu University
and Others at paras 7, 9, 12 observed as follows :
Para 7 : Shri Akhilesh Kumar Pandey, learned counsel
for the respondent submitted that the appointment
made by the University was not at all proper inasmuch
as the appellant should have been appointed to a post
in the service of the University purely on temporary
basis not exceeding a period of 6 months. Since the
appellant had been appointed for a period longer than
that it was not open to the University to do so without
the express sanction of the Government. In this
situation it was certainly open to the Vice Chancellor to
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treat the appointment made as contrary to the
provisions of the Act or statutes or rules or regulations
or in any other manner irregular. If that was so, it was
certainly not necessary for the University to have
afforded an opportunity of being heard to the
appellant. He relied upon Section 35(3) of the Act
which was introduced into the enactment by an
amendment made by Bihar Act 17 of 1993 which came
into effect from 22.8.93.
Para 9 : The law is settled that non-arbitrariness is an
essential facet of Article 14 pervading the entire realm
of State action governed by Article 14. It has come to
be established, as a further corollary, that the audi
alteram partem facet of natural justice is the antithesis
of arbitrariness. In the sphere of public employment, it
is well settled that any action taken by the employer
against an employee must be fair, just and reasonable
which are components of fair treatment. The
conferment of absolute power to terminate the
services of an employee is antithesis to fair, just and
reasonable treatment. This aspect was exhaustively
considered by a Constitution Bench of this Court
in Delhi Transport Corporation vs. D.T.C. Mazdoor
Congress reported in 1991 SUPP (1) SCC 600.
Para 12 : The said provision provides that an
appointment could be terminated at any time without
notice if the same had been made contrary to the
provisions of the Act, statutes, rules or regulations or
in any irregular or unauthorised manner. The condition
precedent for exercise of this power is that an
appointment had been made contrary to Act, Rules,
Statutes and Regulations or otherwise. In order to
arrive at a conclusion that an appointment is contrary
to the provisions of the Act, statutes, rules or
regulations etc. a finding has to be recorded and
unless such a finding is recorded, the termination
cannot be made but to arrive at such a conclusion
necessarily an enquiry will have to be made as to
whether such appointment was contrary to the
provisions of the Act etc. If in a given case such
exercise is absent, the condition precedent stands
unfulfilled. To arrive at such a finding necessarily
enquiry will have to be held and in holding such an
enquiry the person whose appointment is under
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enquiry will have to be issued a notice. If notice is not
given to him then it is like playing Hamlet without the
Prince of Denmark, that is, if the employee concerned
whose rights are affected, is not given notice of such a
proceeding and a conclusion is drawn in his absence,
such a conclusion would not be just, fair or reasonable
as noticed by this Court in D.T.C. Mazdoor Sabha's
case. In such an event, we have to hold that in the
provision there is an implied requirement of hearing
for the purpose of arriving at a conclusion that an
appointment had been made contrary to the Act,
statute, rule or regulation etc. and it is only on such a
conclusion being drawn, the services of the person
could be terminated without further notice. That is
how Section 35(3) in this case will have to be read.
19. In State of Madhya Pradesh & Others v. Lalit
Kumar Verma (2007) 1 SCC 575 - the Apex Court
observed as follows :
"12. The question which, thus, arises for
consideration, would be : is there any distinction
between 'irregular appointment' and 'illegal
appointment'? The distinction between the two terms
is apparent. In the event the appointment is made in
total disregard of the constitutional scheme as also the
recruitment rules framed by the employer, which is
'State' within the meaning of Article 12 of the
Constitution of India, the recruitment would be an
illegal one; whereas there may be cases where,
although, substantial compliance with the
constitutional scheme as also the rules have been
made, the appointment may be irregular in the sense
that some provisions of some rules might not have
been strictly adhered to."
20. The Apex Court in its judgment reported in Olga
Tellis & Others v. Bombay Municipal Corporation
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reported in (1985) 3 SCC 545 at para 32 observed as
under :
"32..... The sweep of the right to life conferred by
Article 21 is wide and far reaching. It does not mean
merely that life cannot be extinguished or taken away
as, for example, by the imposition and execution of the
death sentence, except according to procedure
established by law. That is but one aspect of the right
to life. An equally important facet of that right is the
right to livelihood because, no person can live without
the means of living, that is, the means of livelihood. If
the right to livelihood is not treated as a part of the
constitutional right to life, the easiest way of depriving
a person his right to life would be to deprive him of his
means of livelihood to the point of abrogation. Such
deprivation would not only denude the life of its
effective content and meaningfulness but it would
make life impossible to live. And yet, such deprivation
would not have to be in accordance with the procedure
established by law. If the right to livelihood is not
regarded as a part of the right to life. That, which
alone makes its possible to live, leave aside what
makes life liveable, must be deemed to be an integral
component of the right to life. Deprive a person of his
right to livelihood and you shall have deprived him of
his life...".
21. A bare perusal of the material on record clearly
indicates that the Petitioner faced the selection process
and appeared before the Selection Committee Meeting
held on 25.02.2015 and further based on the
recommendations of the Selection Committee, the
Executive Council of the 3rd Respondent University at
its 51st meeting held on 28.02.2015 has accorded
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approval for the appointment of the Petitioner as driver
under unreserved category and the same even had the
approval of the Vice-Chancellor on 05.03.2015 and
accordingly an order of appointment dt. 05.03.2015
was issued by the 3rd Respondent to the Petitioner vide
Proc.No.MANUU/ER.II/F.165/2014-15/1819. This
Court opines that there is no dispute in so far as the
power of the 3rd Respondent is concerned in appointing
the Petitioner though the said appointment did not
have the approval of the 2nd Respondent, the
appointment of the Petitioner cannot be termed an
illegal appointment in view of the simple fact that the
Petitioner underwent the process of selection as per
the recruitment rules framed by the 3rd Respondent
University. Admittedly in this case notice has not been
given to the petitioner before holding that the
petitioner's post of driver would be treated as
unapproved post and further ordering termination of
his service. Hence the impugned order terminating the
services of the petitioner cannot be sustained.
Therefore, this Court is of the firm view that the 3rd
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respondent ought not have terminated the services of
the Petitioner without issuing notice to the Petitioner
though the Petitioner is a probationer contrary to 26(3)
and 26(4) of the Maulana Azad National University Act,
1966 (No.2 of 1997) (extracted above) and contrary to
the law laid down by the Apex Court in the judgment
reported in (1998) 8 SCC 194 in Basudeo Tiwary v. Sido
Kanhu University and Others since the Petitioner is
entitled to fair, just and reasonable treatment and
though the Petitioner is a probationer yet he is still
entitled to be afforded the minimum protection which is
contemplated under Article 311(2) of the Constitution
of India. The protection is very limited to inform the
Petitioner about the proposed action and to give him a
reasonable opportunity of being heard.
22. Taking into consideration the aforesaid
circumstances and the law laid down by the Apex Court
in the judgments referred to and discussed above in
Basudeo Tiwary v. Sido Kanhu University and Others,
reported in (1998) 8 SCC 194, State of Madhya Pradesh
& Others v. Lalit Kumar Verma reported in (2007) 1 SCC
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575, Delhi Transport Corporation v D.T.C. Mazdoor
Congress reported in 1991 Supp(1) SCC page 600 and
Olga Tellis & Others v. Bombay Municipal Corporation
reported in (1985) 3 SCC 545, this Court opines that
defect and procedural irregularity attributable to the
methodology followed in making the petitioner's
appointment needs to be condoned and the petitioner
cannot be penalized for the same since making the
petitioner to suffer adversely for the default or lapse on
the part of the 3rd respondent would be unjust,
unreasonable and arbitrary, and hence, the writ
petition is liable to be allowed.
23. Accordingly, the writ petition is allowed setting
aside the order No.F.59-2/2010(CU) of the 2nd
respondent dated April 2017 and the consequential
proceedings bearing No. MANUU/ER-II/PF.501/2017-
18/193 of the 3rd Respondent dated 23.05.2017 and
the 2nd and 3rd respondents are directed to reconsider
the subject issue of according its approval for creation
of posts of Drivers as proposed by the 3rd respondent
by its letter bearing No.MANUU/PVCO/11/1561, dated
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27.11.2014 within a period of three weeks from the
date of receipt of the copy of the order duly taking into
consideration the principle laid down by the Apex Court
and also the observations of the Apex Court in the
judgments referred to and extracted above and pass
appropriate orders in accordance with law and
communicate the said decision to the Petitioner.
There shall be no order as to costs.
Miscellaneous petitions, if any, shall stand dismissed.
_________________
SUREPALLI NANDA, J
Date: 01.11.2022
Note: L.R copy to be marked
b/o
kvrm
