Uttarakhand High Court
Dr. Aneeta Yadav vs Govind Ballabh Pant University Of ... on 22 February, 2019
Equivalent citations: AIRONLINE 2019 UTR 689, (2019) 1 UC 530
Author: Alok Singh
Bench: Ramesh Ranganathan, Alok Singh
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
WRIT PETITION (S/B) NO. 173 of 2018
Dr. Aneeta Yadav ...Petitioner.
Vs.
Govind Ballabh Pant University of Agriculture and
Technology, Pantnagar, Udham Singh Nagar and others.
...Respondents.
Mr. C.D. Bahuguna, learned Senior Advocate assisted by Mr. A.K. Verma, learned counsel for
the petitioner.
Mr. Rajendra Dobhal, learned Senior Advocate assisted by Mr. Devang Dobhal, learned counsel
for respondent nos. 1, 2 and 4.
Mr. Kartikey Hari Gupta, learned counsel for respondent no. 3.
Mr. Vinay Kumar, learned counsel for respondent no. 5.
&
WRIT PETITION (S/B) NO. 153 of 2018
Vineet Kumar ...Petitioner.
Vs.
G.B. Pant University of Agriculture and
Technology, Pantnagar, and others. ...Respondents.
Mr. Vinay Kumar, learned counsel for the petitioner.
Mr. Rajendra Dobhal, learned Senior Advocate assisted by Mr. Devang Dobhal, learned counsel for the
respondents.
Judgment Reserved: 18.12.2018
Judgment Delivered: 22.02.2019
Chronological list of cases referred:
1. AIR 1958 SC 36
2. AIR 1974 SC 2192
3. AIR 1984 SC 636
4. (1984) 3 SCC 384
5. (1991) 1 SCC 691
6. AIR 1964 SC 449
7. AIR 1961 SC 177
8. C.A. No. 590/62 decided on 23.10.1963
9. AIR 1964 SC 1854
10. C.A. No. 1341/66 decided on 13.12.1966
11. AIR 1968 SC 1089
12. AIR 1963 SC 1552
13. AIR 1971 SC 1011
14. (1964) ILLJ 68 SC
15. (1971) 2 SCR 118
16. (2000) 3 SCC 588
17. (1980) ILLJ 137 SC
18. (2008) 3 SCC 310
19. (1960) ILLJ 577 SC
2
20. (1992) 2 SCC 683
21. (2005) 7 SCC 177
22. AIR 2008 SC 578
23. (1988) Supp SCC 795
24. (2008) 11 SCC 314
25. (2016 ) 8 SCC 471
26. (2003) 3 SCC 437
27. (2010 ) 2 SCC 169
28. AIR 1967 SC 1269
29. (1993) 3 SCC 259
30. AIR 1972 SC 1680
31. (1973) 1 SCR 258
32. AIR 1956 P&H 201
33. AIR 1953 Cal 653
34. AIR 1952 Cal 808
35. 2009 (5) ALD 273
36. (1981) 1 SCR 746
37. (2002) 1 SCC 113
Coram: Hon'ble Ramesh Ranganathan, C.J.
Hon'ble Alok Singh, J.
Ramesh Ranganathan, C.J.
Writ Petition (S/B) No. 153 of 2018 is filed by Dr. Vineet Kumar seeking a writ of mandamus to direct the respondents to consider his candidature for appointment to the post of Assistant Professor (Genetics and Plant Breeding) in the College of Agriculture, Govind Ballabh Pant University against Employment Notice No. A-20/2015 dated 05.06.2015 in as much as he stood second in the select / recommendation list, and the appointment of the selected candidate had been found to be in violation of the conditions of the advertisement.
2. Writ Petition (S/B) No. 173 of 2018 is filed by Dr. Aneeta Yadav seeking a writ of certiorari to quash the orders dated 04.04.2018 and 14.09.2017 passed by respondent nos. 2 & 3 (the Additional Chief Personnel Officer and the Chancellor of Govind Ballabh Pant University) respectively; a writ in the nature of mandamus declaring that the resolution of the Board of Management dated 13.03.2018, contained in the impugned order dated 04.04.2018, stands vitiated for not adhering to the provisions of the 'Act and Statute' of the University, for non-application of mind to the facts and circumstances of the case, and for reproducing the views of the Chancellor, 3 in order to remove the petitioner from service, without initiating disciplinary proceedings / inquiry in this regard; a writ of mandamus declaring Para 7 of the agreement / contract of employment as well as Section 4(e) (2) of Chapter XXV of the Statute of the University as illegal, irrational and arbitrary as it empowered the University to dispense with / terminate the service of any employee including a confirmed employee without any notice and without initiating disciplinary inquiry, even where the allegations of termination are founded on misconduct or commission of any act which, in the opinion of the Board, involved moral turpitude; a writ of mandamus to declare the 'declaration' part of the application form of the petitioner as illogical, irrational, unconscionable, arbitrary, illegal and opposed to public policy under Section 23 of the Indian Contract Act, 1872; for a writ of mandamus directing respondent nos. 1 to 4 not to interfere with the working of the petitioner as an Assistant Professor, Genetics and Plant Breeding, in the College of Agriculture, Govind Ballabh Pant University of Agriculture and Technology, Pantnagar, Udham Singh Nagar, and to permit her to work and continue as an Assistant Professor, Genetics and Plant Breeding in the College of Agriculture, G.B. Pant University, Pantnagar.
3. The petitioner in Writ Petition (S/B) No. 153 of 2018 is arrayed as the 5th respondent in Writ Petition (S/B) No. 173 of 2018. Both these writ petitions are, therefore, now being disposed of by a common order. Parties shall, hereinafter, be referred to as they are arrayed in Writ Petition (S/B) No. 173 of 2018. Both the petitioner and the fifth respondent submitted their applications seeking appointment to the post of Assistant Professors (Genetics and Plant Breeding) in the College of Agriculture of the respondent University. Pursuant to the Employment notice No. A-20/2015, published and advertised in the newspapers in June, 2015, the Govind Ballabh Pant University of Agriculture and Technology, Pantnagar, Udham Singh Nagar (hereinafter referred to as the "respondent-University") invited applications from deserving candidates for several posts including the post of Assistant Professor, Genetics and Plant breeding, (College of Agriculture) which was reserved for candidates belonging to the Other Backward Classes (OBC) category. The petitioner applied for the post of Assistant Professor, 4 Genetics and Plant breeding in the College of Agriculture, in the OBC category, on 18-06-2015. The Advertisement (Employment Notice No. A- 20/2015) stipulated that candidates, who had applied earlier in response to the advertisement dated A-18/2011 dated 07.01.2012 for the posts included in the advertisement, need not pay the required application fee; however, they should submit a fresh application for their candidature to be considered. Since the petitioner had applied earlier, in response to the advertisement dated 07.01.2012, this condition enabled her not to pay the required application fee. She was, however, required to submit a fresh application in terms of the employment notice dated A-20/2015.
4. The said notice dated 05.06.2015 required certain particulars to be furnished in the application form annexed thereto. Clause 10(a) required the applicant to state whether he had ever been arrested or prosecuted. Clause 10(b) required the candidate to state whether he / she had been punished by the University; and Clause (10)(c) required the candidate to state whether he / she had ever been dismissed / discharged from any Government Department / Public Sector Organisation / Quasi-Government Organisation. If the answer was in the affirmative, the candidate was required to give details. Clause 14 of the application form required the applicant to furnish his employment record with the employer's address, the post held, the pay-scale, the period of service (from-to), the description of work done, and the reason for leaving. Clause (15) required the application to be forwarded by the present employer.
5. Clause (a) of the declaration part of the application form, which was required to be signed by the applicant, required him / her to declare that the entries in the form were true to the best of his / her knowledge and belief, and also that he / she had not concealed any fact or withheld any information regarding his / her past service and record; and if any entry was found to be false or incorrect, or if anything was found to have been concealed, he / she will be disqualified for selection or if appointed would be liable to termination without any notice or compensation. Clause (b) of the declaration required the applicant to certify that he / she had read the Employment Notice carefully.
56. In the application form submitted by her, the petitioner, in relation to Clause 10 (b), which required her to state whether she had ever been punished by the University, answered as "No". With respect to Column (14) i.e. the employment record with the employer's address, post held, pay- scale, period of service (from-to), description of work done, and the reason of leaving, she wrote "Not Applicable". The petitioner signed the declaration form, as referred to hereinabove, on 18.06.2015. The 5th respondent also submitted his application on 13.09.2015.
7. In the month of July 2015, the Screening committee of the University recommended the petitioner's candidature for interview pursuant to which the petitioner appeared before the Selection Committee for interview. Interviews, for appointment to the post of Assistant Professors, were held on 30.09.2015 and, while the petitioner was awarded 85.75 marks, the 5th respondent was awarded 82.25 marks. The petitioner was placed at Serial No. 1, and the 5th respondent at Serial No. 2, in the recommendation list.
8. The 5th respondent submitted an RTI application on 30.11.2015 to the Public Information Officer, Bihar Agriculture University, Sabour, Bhagalpur. In response to the RTI query, the 5th respondent was informed, by letter dated 15.12.2015, that the petitioner had worked as Assistant Professor (Genetics and Plant Breeding) in the Bihar Agriculture University, Sabour, Bhagalpur from 31.01.2005 to 05.12.2015; acceptance of her resignation was under process; her application form, for appointment in the respondent University, had not been forwarded by the Bihar Agriculture University; and the No Objection Certificate, for appearing in the interviews scheduled to be held on 30.09.2015, had not been given by the University. The petitioner was appointed to the post of Assistant Professor, Genetics and Plant Breeding, in the college of Agriculture, in the OBC category, vide proceedings dated 07.12.2015, in the pay scale of Rs.15,600-39,100+AGP Rs.6000. The petitioner submitted her joining report on 08-12-2015 before the Head, Genetics and Plant breeding, College of Agriculture, G.B. Pant University, Pantnagar.
69. The 5th respondent submitted a representation to the Vice Chancellor on 31.12.2015, regarding appointment of the petitioner, contending that she had concealed the fact of her being employed in the Bihar Agriculture University, Sabour, Bhagalpur when she had submitted her application form seeking appointment to the post of Assistant Professor (Genetics and Plant Breeding); and she had not submitted her NOC from the previous employer. A representation was submitted by the father of the 5th respondent, to the Chancellor of the respondent University, on 05.03.2016 regarding irregularities committed by the University in appointing the petitioner as an Assistant Professor (Genetics and Plant Breeding).
10. In reply to the RTI application dated 05.03.2016, the Public Information Officer of the respondent University, by his letter dated 21.03.2016, provided information regarding the application form, educational certificates, caste certificate, experience certificate and Ph.D. course of the petitioner, as well as the punishment order. The fifth respondent filed Writ Petition (S/B) No. 156 of 2016 which was disposed of by order dated 27.04.2016 holding that the petitioner had the alternative remedy of approaching the Chancellor. This Court made it clear that, in case the petitioner approached the Chancellor, the matter should be decided at the earliest after affording an opportunity of hearing to all the affected parties. The 5th respondent, thereafter, submitted his representation dated 18.05.2016 to the Chancellor questioning the appointment of the petitioner. In his representation the 5th respondent alleged that the petitioner had, in violation of the conditions of the employment notification, concealed her previous employment with the Bihar Agriculture University, Sabour, Bhagalpur, and of her being awarded punishment of conduct probation (CP) as she was found using unfair means when she was pursuing her Ph.D. course from the University.
11. The office of the then Chancellor of the respondent-University called upon the Vice Chancellor of the University, vide letter dated 14th June 2016, to submit its explanation regarding the allegations made in the application of the fifth respondent. The Addl. C.P.O. of the University 7 submitted a reply, vide letter dated 12th July 2016, on behalf of the University. The 5th respondent, thereafter, filed Writ Petition (S/B) No. 112 of 2017 which was disposed of by order dated 22.03.2017 directing the Chancellor to consider and take a decision, on the 5th respondent's representation, in accordance with law within a period of three months after affording an opportunity of hearing to both the petitioner and the 5th respondent.
12. After hearing the petitioner, the 5th respondent, and the representative of the University, and after taking into consideration the report filed by the University and the reply filed by the petitioner to the representation of the 5th respondent, the Chancellor, in his order dated 14.09.2017, observed that the petitioner had concealed the fact of her previous employment as well as her being awarded punishment, and directed the Board of Management of the University to convene a special meeting and take an appropriate decision after taking into account the facts mentioned in the order. In the order dated 14-09-2017, passed by the Chancellor of the University, the allegations levelled by the fifth respondent, are referred to, which are that:-
(a) Dr. Aneeta Yadav has provided her permanent resident address of Mau, Uttar Pradesh in her application; therefore, she is not entitled to get the benefit of reservation under OBC category in the State.
(b) The OBC certificate submitted by Dr. Aneeta Yadav at the time of interview was not legally correct as it was time barred.
(c) Dr. Aneeta Yadav has concealed the fact that she was punished by the University for the use of unfair means in the year 2012.
(d) Dr. Aneeta Yadav has concealed the fact of her previous employment in the application form. Dr. Aneeta Yadav was an employee of Bihar Agriculture University, Sabour, Bhagalpur, Bihar at the time of applying in G.B. Pant University. She has neither applied through proper channel nor granted NOC by the Bihar Agriculture University.
(e) The experience claimed by Dr. Aneeta Yadav is not correct.
13. Thereafter the Board of Management passed a resolution to remove the petitioner from service, and consequently the Addl. C.P.O. issued the order dated 04-04-2018 whereby the petitioner was removed from service.
814. At the 5th respondent's request, the Public Information Officer of the respondent University, vide proceedings dated 23.01.2018, furnished information regarding the list of candidates, whose candidature was rejected for appointment to the post of Assistant Professor against Employment Notice No. A-20/2015 on the ground that their application was not routed through the employer or because their OBC certificate was not valid. On receipt of the RTI application of the 5th respondent dated 09.01.2018, the Public Information Officer, vide proceedings dated 05.02.2018, provided information regarding the report submitted by the University and the statement of the petitioner which was submitted before the Chancellor against the representation of the 5th respondent.
15. By proceedings dated 04.04.2018, the Additional Chief Personnel Officer of the University informed the petitioner of the decision taken by the Board of Management to cancel her appointment to the post of Assistant Professor (Genetic and Plant Breeding) as she had contravened the conditions of the advertisement having concealed her previous employment and her having been awarded punishment. Aggrieved thereby, the petitioner filed Writ Petition (S/B) No. 173 of 2018. In the meanwhile the 5th respondent filed Writ Petition (S/B) No. 153 of 2018 seeking appointment in place of the petitioner.
16. In the office order dated 04.04.2018, reference is made to the 5th respondent having challenged the appointment of the petitioner, and to have complained that, in her application, the petitioner did not mention the following facts and had supplied incomplete information; and, therefore, her appointment should be cancelled:
"1. Dr. Anita Yadav had provided her permanent residence address of Mau,Uttar Pradesh in her application. Therefore, she is not entitled to get the benefit of reservation under the OBC category in the State.
2. The OBC certificate submitted by Dr. Anita Yadav at the time of interview was not legally correct as it was time barred.9
3. Dr. Anita Yadav has concealed the fact that she was punished by the University for the use of unfair means in the year 2012.
4. Dr. Anita Yadav has concealed the fact of her previous employment in the application form. Dr. Anita Yadav was an employee of Bihar Agriculture University, Sabour, Bhagalpur, Bihar at the time of applying in G.B. Pant University. She had neither applied through proper channel nor was she granted NOC by the Bihar Agriculture University.
5. The experience claimed by Dr. Anita Yadav is not correct."
17. Thereafter, the Chief Personnel Officer stated that the fifth respondent had submitted representations to several officers of the University such as the Vice Chancellor, the Board of Management, and the Hon'ble Chancellor etc, and had also filed Writ Petitions (i.e. WPSB Nos. 156 of 2016 and 112 of 2017); the High Court had referred the matter to the Chancellor to decide the 5th respondent's representation; and the Chancellor, after due consideration, had directed as under:
".....During the hearing given to Dr. Anita Yadav, it came out that the factum of her previous employment in Bihar was not revealed by the candidate while submitting the application. The application was also not routed through proper channel and did not have the NOC from the employer. The other issue is of a matter of use of unfair means by her in an exam. This point has also not found mention anywhere and the Selection Committee was unaware of this background. Even though the possible currency of the punishment or reprimand for the misconduct has been over, this does not morally absolve the candidate.
Now had the Selection Committee been aware of the unfair means case and the concealament of employment and non-application of NOC, would they still have given her preference over the other candidate with clean and unblemished record. A person caught in an exam using unfair means, which went unchallenged by the candidate, can hardly be expected to be a good example for others, as a teacher.
It is also quite obvious that the application scrutiny process which overlooks all these facts completely and in fact conceals and keeps them away from the selection committee is flawed ab-initio.
6. In the circumstances, a special meeting of executive (i.e. Board of Management) be convened and the facts as brought out above be also placed before them for an appropriate decision, as they are the appointing authority.10
7. The representation stands disposed of in the aforesaid circumstances with the directions that a special meeting of Board of Management of the University be convened to take a decision in light of the above observations in the matter within 07 days from issue of this order."
18. It is further stated, in the office order dated 04.04.2018, that the matter of the petitioner's appointment was placed before the Board of Management in its 231st meeting held on 16.10.2017 and, after due consideration, it was resolved as under:
"In continuation of the order dated 2273 (1)/G.S./Ed./D- 214/2017 dated 14 September 2017 of Shri Governor /Chancellor a decision was taken by Hon'ble Board of Management that before taking any further action on the subject, a clear report may be obtained on the facts mentioned in the above described order of Shri Governor / Chancellor no. 2273 (1)/G.S. /Edn. / D-214/2017 dated 14 September 2017, as to what action is provided in the rule / statutes / Government orders, and in this respect a proposal may again be placed before Hon'ble Board of Management compulsorily so that a decision could be taken by the Hon'ble Board of Management on the subject.
The Hon'ble Board of Management also took cognizance of the fact that Dr. Aneeta Yadav who had been appointed in the post of Assistant Professor in the Genetics and Plant Breeding Department of the University, has been ex-student of the University. She has studied in graduation, post graduation and Ph.D. course from this University. During her study in the University in the year 2012, she was found guilty of use of unfair means. Dr. Aneeta yadav remained the student of agricultural college of the University, in that situation, the screening committee of the Agricultural college, who screened application form of Dr. Aneeta Yadav, ought to have been aware about use of unfair means by Dr. Aneeta Yadav in the year 2012. The Hon'ble Board of Management had also directed to obtain clarification from screening committee about use of unfair means by Dr. Aneeta Yadav in the year 2012 and about having no knowledge of use of unfair means by Dr. Aneeta Yadav and for placing the same before the Board of Management in its next meeting."
19. The said order dated 04.04.2018 also records that, after obtaining clarification from the members of the screening committee, the proposal, relating to the appointment of the petitioner, was placed before the Board of Management in its meeting dated 13.03.2018; and, after 11 consideration of the matter, the Board of Management had recorded the following facts which came to its knowledge:
"1. In the application form dated 18.06.2015 made by Dr. Aneeta Yadav for appointment on the post of Assistant Professor, Genetics and Plant Breeding in the University, she concealed the facts on the point no. 10(b)-Have you ever been punished by this University, in this respect she wrote 'No' whereas Dr. Aneeta Yadav was charged for punishment in the past by an office order of the Registrar no. REG/SO/DC/2012/ 854 dated 04.06.2012. In this way Dr. Aneeta Yadav concealed the fact on point no. 10 of application form dated 18.06.2015 for appointment on the post of Assistant Professor, Genetics and Plant Breeding which is concealment of facts.
2. In the application form dated 18.06.2015 made by Dr. Aneeta Yadav for appointment on the post of Assistant Professor and Plant Breeding in the University, she concealed the facts on the point no. 14-Employment record, she wrote in this respect 'Not applicable' whereas Dr. Aneeta Yadav was earlier working in Bihar Agriculture University, Sabour, Bhagalpur and in the application form for appointment on the post of Assistant Professor, Genetics and Plant Breeding in the University she mentioned the place of transmitting her application at Sabour dated 18-06-2015. In this way Dr. Aneeta Yadav concealed the fact on point no. 14 of the application form dated 18-06-2015, for appointment on the post of Assistant Professor, Genetics and Plant Breeding which is concealment of facts.
3. In the published advertisement no. A-20/2015 for appointment in the University on the post of Assistant Professor Genetics and Plant Breeding, it is clearly mentioned that 'In- service candidates should send their application through proper channel' whereas Dr. Aneeta Yadav has not sent her application form dated 18-06-2015 for the post of Assistant Professor, Genetics and Plant Breeding through her previous employer Bihar Agriculture University, Sabour, Bhagalpur. In this way Dr. Aneeta Yadav has not complied with the above condition contained in her application form dated 18-06-2015 against the published advertisement no. A-20/2015 for appointment in the University on the post of Assistant Professor, Genetics and Plant Breeding.
4. One post of Assistant Professor, Genetics and Plant Breeding is reserved for OBC at serial no. 10 of published advertisement no. A-20/2015 of the University, for which Dr. Aneeta Yadav had applied by her application form dated 18-06- 2015. The screening committee, constituted for the above post, has mentioned in its recommendation,-"Recent cast certificate required'.12
The certificate of Other Backward Classes, no. 8602 0202041401865, dated 02-06-2014, issued by Tehsildar, Kichha, U.S. Nagar, is recognized for one year only. In this way the said cast certificate is recognized till 01-06-2015. Whereas Dr. Aneeta Yadav has sent her application dated 18- 06-2015 against published advertisement no. A-20/2015 for the appointment on the post of Assistant Professor, Genetics and Plant Breeding. In this way the said certificate is lapsed by time.
5. Dr. Aneeta Yadav has made following declaration in her application form dated 18-06-2015 for appointment in the University on the post of Assistant Professor, Genetics and Plant Breeding:-
"(a). I hereby declare that the entries in the form are true to the best of my knowledge and belief and also that I have not concealed any fact or withheld any information regarding my past service and record and that if any entry is found to be false or incorrect or that if anything is found to have been concealed I will be disqualified for selection or if appointed will be liable to termination without any notice or compensation."
20. The said order dated 04.04.2018 records that Para 7 of the contract / bond filed by the petitioner contains a restriction that the service of the employee may be terminated at any time, if any certificate of qualification, experience, domicile, caste or other reserved category submitted by the employee is found fake and fabricated; the petitioner had concealed facts in the above manner in the application form dated 18.06.2015, for appointment in the University on the post of Assistant Professor, Genetics and Plant Breeding; the act of the petitioner, in concealing her appointment in Agriculture University, Sabour, in concealing the fact of her being awarded punishment of temporary dismissal for two semesters (i.e. II Semester 2011-12 and I semester 2012-13), to have remained on conduct probation during her stay in the University, and her failure to deposit the recent caste certificate, fell in the category of "commission of any act which, in the opinion of the Board, involves moral turpitude", which is sufficient ground to terminate service of any employee under Section 4(e)(2) of Chapter 25 of the Statute; and in view of these facts, the Board of Management had ordered that the petitioner be removed from service immediately. The relevant portion of the said order reads thus:-
13"The act of Dr. Aneeta Yadav in concealing her appointment in Agricultur University, Sabour (2) concealing the fact of getting punishment of temporary dismissal for two semesters (i.e., II semester 2011-12 and I semester 2012-13) and to remain on conduct probation during her stay in the University, and not to deposit Recent caste certificate on the date of interview, fall in the category of "commission of any act which in the opinion of the Board involves moral turpitude", which is sufficient ground to terminate service of any employee under section 4
(e)(2) of Chapter 25 of the Statute.............................."
"Accordingly, in the context of above referred order dated 14- 09-2017 passed by the Hon'ble Chancellor/Governor Uttarakhand, and in compliance of the resolution passed by Hon'ble Board of Management in its 233rd meeting dated 13- 03-2018, which is as per prescribed provisions of section 4
(d)(1) of Chapter 25 of the Statute of the University. Dr. Aneeta Yadav Assistant Professor, Genetics and plant breeding (category OBC) is removed from service of the University immediately."
21. Elaborate oral and written submissions were put forth by Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the petitioner. Detailed oral submissions were made by Sri Rajednra Dobhal, learned Senior Counsel appearing on behalf of the respondent-University, and Sri Vinay Kumar, learned Counsel appearing on behalf of the fifth respondent. It is convenient to examine the rival submissions, made by learned Senior Counsel and learned counsel on either side, under different heads.
I. Could the services of the petitioner have been terminated without conducting a disciplinary enquiry?
22. Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the petitioner, would submit that, by the order dated 04-04-2018, the Addl. C.P.O. of the University had removed the petitioner from service; Section 7 (b) of the U.P. Krishi Evam Prodyogic Vishwavidyalaya Adhiniyam, 1958 (hereinafter referred to as the "1958 Act") stipulates that the Board of Management of the University is the appointing authority of the academic and administrative staff of the University; under Section 12 (8) of the 1958 Act, the powers of the Board of Management have been delegated to the Vice-Chancellor to give effect to the orders of appointment and dismissal (removal); that is why, under Clause 4 (d) (1) of the Statute of the University, the Vice Chancellor has been empowered to initiate disciplinary 14 proceedings, on behalf of the appointing authority (Board of Management), against an employee of the University, where such employee has to be removed from service; on receipt of the order of the Chancellor dated 14-09- 2017, if the Board of Management intended to remove the petitioner from service exercising power u/s 4 (d) (1) of the Statute of the University, it was obligatory for it to initiate disciplinary proceedings against the petitioner, but it was not done; the Board of Management committed a patent illegality in resolving to punish the petitioner straight away by an order of removal; this inherent lapse/lacuna, on the part of the Board of Management, cannot be remedied/rectified now; the resolution of the Board of Management dated 13-03-2018 contained in the body of Impugned punishment order, and which is the foundation stone of the impugned order of punishment, is vitiated in law; and the consequential impugned order of punishment dated 04-04-2018 is illegal, and is liable to be quashed and set aside.
23. Learned Senior Counsel would submit that, in the impugned order dated 04-04-2018 passed under Clause 4 (d) (1) of Chapter 25 of the Statute of the University, reference is made to Clause 4 (e) (2) of the Statute to strengthen the order of removal; the petitioner was appointed to the post of Assistant Professor (Genetics and Plant breeding) by order dated 07-12- 2015; she joined the post on 08-12-2015; she completed the period of probation of 2 years satisfactorily, without any demur, on 08-12-2017; although a formal order of confirmation was not issued, the University, by its own conduct and volition, treated the petitioner as a confirmed employee¸ and resorted to Clause 4 (e) (2) of the Statute of the University to punish the petitioner by an order of removal; the petitioner was treated to be a confirmed employee, probably, in view of Section 4 (c) (ii) of the Statute of the University, which provides the maximum period of probation as 2 years; the petitioner was punished and removed from service, without conducting disciplinary proceedings, despite her being treated as a confirmed employee; a confirmed employee cannot be dismissed or removed from service without initiating disciplinary proceedings; and, on this ground alone, the impugned order of removal dated 04-04-2018 is vitiated in law, and is liable to be quashed and set aside. Reliance has been placed, on behalf of the petitioner, 15 on several judgments of the Supreme Court to contend that a permanent employee could not have been imposed the punishment of removal from service without conducting a departmental inquiry.
24. Before examining whether the judgments, on which reliance is placed, are applicable to the facts of the present case, it is necessary to take note of the law declared by the Supreme Court in the judgments relied on behalf of the petitioner. As held by the Supreme Court, if the termination of service is founded on the right flowing from a contract or the service rules then, prima facie, the termination is not a punishment and carries with it no evil consequences, and so Article 311 is not attracted. Even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment, the Government may, nevertheless, choose to punish the servant, and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and the requirements of Article 311 must be complied with. (Parshotam Lal Dhingra1; Shamsher Singh and Anr.2; Anoop Jaiswal3; Indra Pal Gupta4). Whenever the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory, or that his continuance in service is not in public interest, or on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules, or it may decide to take punitive action against the temporary Government servant. If it decides to take punitive action it may hold a formal inquiry by framing charges, and giving an opportunity to the Govt. servant, in accordance with the provisions of Article 311 of the Constitution. (Kaushal Kishore Shukla5).
25. The form in which the order of termination is expressed is not decisive. It is the substance of the matter which determines the character of the termination of services, and must be determined by reference to the material facts that existed prior to the order. (Jagdish Mitter6). A temporary Govt. servant has no right to hold the post, and termination of such a Govt. servant does not visit him with any evil consequences. Mere use of 16 expressions like 'terminate' or 'discharge' is not conclusive and, inspite of the use of such expressions, the Court may determine the true nature of the order, to ascertain whether the action taken against the Govt. servant is punitive in nature, applying two tests namely: (1) whether the temporary Govt. servant had a right to the post or the rank, or (2) whether he has been visited with evil consequences; and if either of the tests are satisfied, it must be held that the order of termination of a temporary Govt. servant is by way of punishment. The evil consequences do not include the termination of services of a temporary Govt. servant in accordance with the terms and conditions of service. (Ram Narayan Das7; Parshotam Lal Dhingra1; R.C. Lacy8; Champaklal Chimanlal Shah9; Jagdish Mitter6; A.G. Benjamin10; Shamsher Singh and Anr.2; Shri Sukh Raj Bahadur11; Kaushal Kishore Shukla5; Indra Pal Gupta4). The motive operating in the mind of the authority, in terminating the services of a temporary servant, does not alter the character of the termination, and is not material in determining the said character. (Parshotam Lal Dhingra1; Jagdish Mitter6).
26. A probationer, whose terms of service provided that it could be terminated without any notice and without any cause being assigned, cannot claim the protection of Article 311(2). (Ranendra Chandra Banerjee12; Samsher Singh2). Where a departmental enquiry is contemplated, and if an enquiry is not in fact proceeded with, Article 311 is not attracted unless it can be shown that the order, though unexceptionable in form, is made following a report based on misconduct. (Shiva Bhikshuk13; Samsher Singh2). The authority may, in some cases, be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry, and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311(2), he can claim protection. (Samsher Singh2). What is decisive is whether the order is really by way of 17 punishment. (Ram Narayan Das7; Samsher Singh2; Madan Gopal14). If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then Article 311 would be attracted. (K.H. Phadnis15; Samsher Singh2). If an order of punishment is passed, and is punitive in nature, it is the duty of the authorities to hold a regular departmental enquiry, and they cannot terminate the services of the employee arbitrarily (Nar Singh Pal16).
27. It is relevant to note that the petitioner was appointed as an Assistant Professor (Genetics and Plant Breeding) in the respondent- University, and did not hold a civil post under the State. The above-referred judgments of the Supreme Court relating to a Government servant, (whether a temporary employee or a probationer), who is entitled for protection under Article 311 of the Constitution of India, has therefore no application to the facts of the present case.
28. Even in the case of the employees of statutory Corporations, and Government Public Sector undertakings, the Supreme Court has held that the Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If, thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of this test, it cannot be called a punishment. (Gujarat Steel Tubes Ltd.17). It is no doubt true that, in the case of a permanent employee of the respondent-University, the Statute of the University prescribes a procedure for imposing punishment, which includes holding a disciplinary inquiry, and if the petitioner is one such, then different consequences may follow.
29. The next question, which necessitates examination, is whether the petitioner is justified in her claim that she must be deemed to have been confirmed, consequent on her completing two years of service on 07.12.2017. It is not in dispute that no specific order, declaring the petitioner to have successfully completed her probation, was passed by the respondent-University. The submission of Mr. C.D. Bahuguna, learned Senior Counsel, that the petitioner is a confirmed employee, draws support 18 from the reference, in the impugned order of punishment, to certain provisions applicable only to a permanent employee; and, in view thereof, learned Senior Counsel would submit that it must be deemed that the probation of the petitioner was successfully completed, and she is a permanent employee of the respondent-University.
30. It is relevant, in this context, to refer to the applicable statutory provisions. The 1958 Act is an Act to establish and incorporate agricultural universities for the development of agriculture, and for the benefit of the rural people of Uttar Pradesh. Section 2(a) of the said Act defines "Academic Council" to mean the academic council of the University. Section 2(c) defines "Board" to mean the Board of Management of the University. Section 2(f) defines "Prescribed" to mean prescribed by the Statute. Officers of the University are defined under the Act to include the Chancellor (Kuladhipati), the Vice Chancellor (Kulpati), the Registrar and such other persons in the service of the University as may be declared by the Statutes to be the officers of the University. The authorities of the University include the Board of Management and the Academic Council. Section 9(1) of the 1958 Act stipulates that the Governor of Uttar Pradesh shall be the Kuladhipati (Chancellor) of the University. Section 9(2) stipulates that the Chancellor shall have such other powers as may be conferred on him by the Act or the Statutes. Section 10 relates to the constitution, powers and duties of the Board of Management. Section 10(7)(b) stipulates that the powers and duties of the Board include the appointment of members of the academic and administrative staff of the University in the manner prescribed. Section 12 relates to the powers and duties of the Vice Chancellor (Kulpati). Section 12(8) provides that, subject to the aforesaid, the Kulpati shall give effect to the orders of the Board regarding the appointment, suspension, dismissal of officers, professional staff and other employees of the University. Section 26 of the 1958 Act relates to appointment of salaried officers and teachers. Section 26(1) stipulates that, subject to the provisions of the Act, the members of the staff of the University shall be appointed by the Board on the recommendation of the Kulpati. Section 26(2) stipulates that, except in cases provided for by the 19 Statutes, every salaried officer and teacher of the University shall be appointed under a written contract, the contract shall be lodged with the Kulpati, a copy thereof shall be furnished to the officer or teacher concerned, and the contract shall not be inconsistent with the provisions of the Act and the Statutes, for the time being in force, in relation to the conditions of service.
31. In terms of Section 26(2), an agreement was entered into between the petitioner and the respondent University on 07.12.2015. Clause 3 of the said agreement required the petitioner to serve the University for a minimum period of two years on probation, which could be extended depending upon his performance during the period of two years' probation. It also provided that, during the probation period, the services may be terminated by the University either by giving one month's notice or one month's pay in lieu thereof at any time. Clause 4 stipulated that, after the expiry of probation period of two years, if not extended, the employee shall be eligible to be retained on the said post temporarily unless orders of termination of the service, which shall be against regular position, are issued at the discretion of the Vice Chancellor.
32. Section 29 of the 1958 Act relates to the manner in which Statutes are made. While Section 29(1) provides that the first Statute shall be made by the State Government and shall be laid before the State Legislature, Section 29(2) enables the Board to make new or additional Statutes. Chapter XXV of the Statute of the University relates to the number, qualifications, emoluments and other conditions of service. Clause 4 thereunder relates to the conditions of service, appointment, suspension, removal and control. Clause 4(a) stipulates that, except in the case of Government servants on deputation, all employees of the University shall be required to enter into a written contract, in accordance with the provisions under Section 26(2) of the Act, in the form prescribed. Clause 4(c) relates to "probation", and Clause 4(c)(i) provides that every employee of the University, on his first appointment against a permanent post, shall be on probation. Clause 4(c)(ii) stipulates that the period of probation shall ordinarily be two years, unless the appointing authority has fixed it as less 20 than two years and, in such cases, it may be extended from time to time, but in no case shall exceed the period of two years. Clause 4(c)(iii) stipulates that, at the end of the probation period, the employee may be confirmed provided his work and conduct are found to be satisfactory and, if he is not confirmed, his services shall be deemed to have been terminated at the end of the probation period. Clause 4(d) stipulates that, save as may be otherwise provided in the Act or the Statutes, appointment to and removal from the office or any other kind of punishment, including the authority to withhold increment of employees of the University, shall rest with the appointing authority.
33. The Vice-Chancellor has been conferred certain powers, which include (a) making such enquires as he may consider necessary to ascertain facts and collect data involving allegations of irregularities or misconduct on the part of any employee of the University, (b) calling for the explanation of any employee of the University, (c) initiating and conducting disciplinary proceedings against any employee, and (d) awarding minor punishment such as award of a censure entry or the stopping of annual increments for a period not exceeding three years. Clause 4(e) stipulates that, after confirmation, the services of an employee of the University can be terminated only on the grounds mentioned thereunder. Clause 4(e)(1) relates to misconduct, including disobedience of the order of the appropriate authority. Clause 4(e)(2) relates to commission of any act which, in the opinion of the Board, involves moral turpitude. Sub-clause (a) thereunder stipulates that every employee, against whom disciplinary action is intended to be taken, shall be given an opportunity of making a representation in writing; and if the authority, dealing with the disciplinary action, considers it necessary also in person.
34. Admittedly no order of confirmation was passed in terms of Clause 4(c)(iii) of the Statute, with respect to the services of the petitioner. Even in terms of the Clause 4, of the agreement dated 07.12.2015 entered into between the petitioner and the respondent-University at the time of her initial appointment as Assistant Professor, if, after expiry of the period of two years probation, the petitioner's services are neither confirmed nor 21 extended, she shall be retained in her post temporarily. Consequently the petitioner continued either on probation or as a temporary employee, even after 07.12.2017 (when she completed two years of service as a probationer) as no order confirming her services, in terms of Clause 4(c)(iii) of the Statute, was passed. The mere fact that the impugned order dated 04.04.2018 refers to Clause 4(e)(2) of the Statute would not mean that the petitioner is a permanent employee, or that her probation is deemed to have been declared on completion of two years' of service, as neither the statute of the University nor the agreement dated 07.12.2015 provide for deemed confirmation of the services of the petitioner. In this context it is also relevant to note that, long before the petitioner completed two years of service, proceedings had already been initiated against her, on the complaint of the fifth respondent, and the Governor (Chancellor of the University) had directed the Board of Management, vide proceedings dated 14.09.2017, to conduct a Special meeting and take a decision on the allegations leveled against the petitioner by the fifth respondent. The petitioner's claim to be a permanent employee is therefore not tenable; and the judgments relied upon by the learned Senior Counsel, with respect to permanent employees, has no application to the facts of the present case.
II. Could the services of the petitioner have been terminated by a punitive and stigmatic order?
35. Sri C.D. Bahuguna, learned Senior Counsel, would submit that the finding recorded in the impugned order dated 04-04-2018, that the petitioner was involved in the commission of an act of moral turpitude, is punitive and stigmatic; this accusation against the petitioner has civil and evil consequences, and thereby the entire service career of the petitioner has been ruined; the petitioner has specifically pleaded that, if the employer wishes or chooses to terminate the services of a temporary employee or a probationer by a punitive or stigmatic order carrying civil or evil consequences, it is obligatory upon the employer to initiate disciplinary proceedings against him, before terminating him from service; since the petitioner has been removed from service by a punitive as well as stigmatic order, it is wholly irrelevant whether the petitioner was a temporary or a 22 confirmed employee; since no disciplinary proceedings were initiated against the petitioner by the employer i.e. the Board of Management of the University, the impugned order of removal was vitiated; where a person is dismissed or removed from service by a punitive or stigmatic order, without a disciplinary enquiry being conducted by the employer, the natural consequence is to quash the impugned orders, and re-instate the employee back in service with all consequential benefits including continuity of service; and, therefore, the impugned punishment order dated 04-04-2018 deserves to be quashed and set aside. Learned Senior Counsel, would rely on (i) Jagdish Mitter6; (ii) Indra Pal Gupta4; (iii) Progressive Education Society18; (iv) Shamsher Singh2; (v) Nar Singh Pal16.
36. It is in this context it is necessary to note that the Supreme Court, in the judgments relied on behalf of the petitioner, has held that the protection of Article 311 can be invoked not only by permanent public servants, but also by public servants who are employed as temporary servants, or probationers. (Parshotam Lal Dhingra1; Jagdish Mitter6). If the Government proceeds against the probationer in the direct way, without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course, if the Government chooses the more difficult path of starting proceedings against him, and branding him as a dishonest and incompetent officer, it would then have the effect of punishment. (Gopi Kishore Prasad19). The termination of services of the temporary servant, which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued for some alleged misconduct. (Parshotam Lal Dhingra1; Jagdish Mitter6). The Appointing Authority is at liberty to terminate the services of a Probationer if it finds the performance of the Probationer to be unsatisfactory during the period of probation. The assessment has to be made by the Appointing Authority itself and the satisfaction is his. Unless a stigma is attached to the termination, or the Probationer is called upon to show cause for any shortcoming which may 23 subsequently be the cause for termination of the Probationer's services, the Appointing Authority is not required to give any explanation or reason for terminating the services, except informing him that his services have been found to be unsatisfactory. (Progressive Education Society18). All the judgments of the Supreme Court relied on behalf of the petitioner, and as referred to hereinabove, relate to the conduct of an employee after his/her appointment, and during the period of probation. The observations of the Supreme Court, in the aforesaid judgments, cannot be read out of context or applied to cases where a person has secured employment concealing material and relevant facts in his/her application form.
37. Since the petitioner's services were terminated, for having concealed and misrepresented facts in her application form seeking appointment as an Assistant Professor (Genetics and Plant Breeding) in the respondent- University, the impugned order can neither be said to have been passed as a measure of punishment subsequent to her employment, nor can the petitioner claim that the said order of termination necessitates being set aside on the ground that it is punitive or stigmatic. The source of power, for the Board of Management of the respondent-University to terminate her services, is clause (a) of the declaration part of the application form signed by the petitioner herself. It is specifically provided therein that, if any entry in the application form is found to be false or incorrect, or if anything is found to have been concealed, the applicant would be disqualified for selection, or if appointed would be liable to termination without any notice or compensation. The mere fact that the impugned order dated 04.04.2018 uses the words "commission of an act which in the opinion of the Board involves moral turpitude" and "removed from service", and erroneously refers to Section 4 (d)(1) of Chapter 25 of the Statute of the University, would not vitiate the order of punishment. If power to do an act or pass an order can be traced to an enabling provision, then, even if that provision is not specifically referred to (or an erroneous reference is made to a wrong provision), the act or order shall be deemed to have been done or made under the enabling provision. (M/S. Pine Chemicals Ltd. And Ors.20). Reference to an erroneous provision in the impugned order, or failure to 24 refer to the provision which confers power to impose punishment, would therefore not vitiate the order of punishment as the source of power, to terminate the services of the petitioner, is traceable to the declaration clause of the prescribed application form.
38. The situation, which the petitioner finds herself in, is of her own making. As action has been taken against her by the Board of Management, for having concealed, suppressed and misrepresented facts in her application form, seeking employment in the University, the contention that her entire service career has been ruined would not, by itself and without anything more, justify interference with the impugned order dated 04.04.2018. The judgments relied upon by the petitioner, to contend that even the services of a probationer cannot be terminated by a punitive and stigmatic order except after a disciplinary enquiry is held, apply only to cases where the services of an employee are terminated for acts of misconduct, on his/her part, during the period of probation, and not for his/her act of suppressing and misrepresenting relevant and material facts in his/her application form seeking appointment. The distinction between concealment/misrepresentation/suppression of relevant and material facts in the application form submitted by a person seeking appointment, and acts of misconduct committed after appointment (either during probation or after confirmation) must always be borne in mind.
39. The question, whether a disciplinary inquiry is required to be held in cases where the services of an employee are terminated for having suppressed/misrepresented material facts, in his/her application form seeking employment, is no longer res integra. In Koneti Venkateswarulu and Ors.21, the Supreme Court observed:-
".........We are unable to accept the contention of the learned counsel for the First Respondent. As to the purpose for which the information is called, the employer is the ultimate judge. It is not open to the candidate to sit in judgment about the relevance of the information called for and decide to supply it or not. There is no doubt that the application called for full employment particulars vide Column 11. Similarly, Annexure III contained an express declaration of not working in any public or private employment. We are also unable to accept the contention that it was inadvertence which led the First Respondent to leave the particulars in Column 11 blank and 25 make the declaration of non-employment in Annexure III to the application. The application was filled on 24.7.1999, the examination was held on 24.10.1999, and the interview call was given on 31.1.2000. At no point of time did the First Respondent inform the appellant commission that there was a bonafide mistake by him in filling up the application form, or that there was inadvertence on his part in doing so. It is only when the appellant commission discovered by itself that there was suppresso veri and suggestio falsi on the part of the First Respondent in the application that the respondent came forward with an excuse that it was due to inadvertence. That there has been suppresso veri and suggestio falsi is incontrovertible. The explanation that it was irrelevant or emanated from inadvertence, is unacceptable. In our view, the appellant was justified in relying upon the ratio of Kendriya Vidyalaya Sangathan (supra) and contending that a person who indulges in such suppresso veri and suggestio falsi and obtains employment by false pretence does not deserve any public employment. We completely endorse this view......"
(emphasis supplied)
40. In R. Radhakrishnan22, the Supreme Court observed:
"............Indisputably, Appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed.
The question came up for consideration before this Court in Delhi Administration through its Chief Secretary and Others v. Sushil Kumar [(1996) 11 SCC 605] wherein it was categorically held:
".......The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the 26 disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted...."
Mr. Prabhakar has relied upon a decision of this Court in T.S. Vasudavan Nair v. Director of Vikram Sarabhai Space Centre and Others [1988 Supp SCC 795]. The said decision has been rendered, as would be evident from the judgment itself, on special facts and circumstances of the said case and cannot be treated to be a binding precedent.
In the instant case, indisputably, the appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise....." (emphasis supplied)
41. In Bipad Bhanjan Gayen24, the Supreme Court observed that Rule 57 of the Railway Protection Force Rules, 1987 provided for a probation period of two years from the date of appointment subject to extension; Rule 67 provided that a direct recruit selected for appointment as an enrolled member of the Force is liable to be discharged at any stage if the Chief Security Officer, for reasons to be recorded in writing, deemed it fit to do so in the interest of the Force till such time as the recruit is not formally appointed to the Force; a reading of these two rules would reveal that, till a recruit is formally enrolled to the Force, his appointment is extremely tenuous; it is the admitted case that the respondent was still under probation at the time his services had been terminated; it was also apparent from the record that the respondent had been given appointment on probation subject to verification of the facts given in the attestation form; therefore, if an enquiry revealed that the facts given were wrong, the appellant was at liberty to dispense with the services of the respondent as the question of any stigma and penal consequences at this stage would not arise; what had led to the termination of service of the respondent was not his involvement in the two cases which were then pending, and in which he had been discharged subsequently, but the fact that he had withheld relevant information while filling in the attestation form; and an employment as a Police Officer pre- supposes a higher level of integrity as such a person is expected to uphold the law, and on the contrary, such a service born in deceit and subterfuge cannot be tolerated.
2742. In Avtar Singh25, the Supreme Court opined:-
"......No doubt about it that once verification form requires certain information to be furnished, declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services.
The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran's case (supra), it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information.
No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
Suppression of 'material' information presupposes that what is suppressed that 'matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.
What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities 28 considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
.....While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.......
....In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for........."
(emphasis supplied)
43. The purpose of requiring an employee to furnish information under the attestation form is to assess his character and antecedents for continuation in service. Where an employee (probationer) is required to give his personal data in an attestation form in connection with his appointment (either at the time of or thereafter), if it is found that the employee had suppressed or given false information in regard to matters which had a bearing on his fitness or suitability to the post, he can be terminated from service during the period of probation without holding any inquiry. Suppression of material information, and making a false statement in reply to queries in the application form, has a clear bearing on the character, conduct and antecedents of the person employed; and, therefore, the employer would be justified in terminating his service during the period of probation. (Ram Ratan Yadav26; Kamal Nayan Mishra27). However a confirmed employee, holding a civil post under the State, cannot be terminated from service for furnishing false information in an attestation 29 form, without giving an opportunity to meet the charges against him. (Ram Ratan Yadav26).
44. Sri C.D. Bahuguna, learned Senior Counsel, would submit that reliance placed by the respondent, on Bipad Bhajan Gayen24, to submit that the services of a temporary employee/probationer can be terminated, on the ground of concealment of fact in the application form, is misplaced; in the said case, the Supreme Court endorsed the order of discharge keeping in mind two aspects, first the candidate was involved in a heinous crime; secondly, the department did not cast any stigma upon him in the termination order; the petitioner cannot be compared with such candidates who were involved in heinous crimes; most of the judgments relied upon by Mr. Vinay Kumar, learned counsel for the 5th respondent, are misplaced as they relate to candidates who were involved in criminal cases; these judgments have no application in the present fact situation; despite there being some judgments, favoring the University or the private respondent, the same may not help them because, in the present case, the procedure prescribed by law has not been followed; in T.S. Vasudavan Nair23, the Supreme Court has held that non disclosure of even a previous conviction may not always be a legal ground to remove a person from service; the gravity of involvement in a case may only be a relevant fact; and a person involved in minor acts or offences may not be treated alike with a person involved in heinous crimes; and the entire exercise, for removing the petitioner from service, is vitiated in law.
45. As noted hereinabove, the Supreme Court, in Bipad Bhajan Gayen24, has held that, as the employer had given appointment on probation, subject to verification of facts given in the application form, if the enquiry revealed that the facts given were wrong, the employee was at liberty to dispense with the services of the employee; the question of any stigma and penal consequences at this stage would not arise; what had led to the termination of the services of the employee was that he had withheld relevant information in his application form; and a service born in deceit and subterfuge cannot be tolerated. As shall be elaborated, later in this order, the petitioner has concealed/misrepresented and suppressed material facts in her 30 application form. She has also suppressed and misrepresented that she was imposed the punishment of temporary dismissal for two semesters for having resorted to unfair means in her PhD examination wherein she was caught red handed with hand written chits. A person, who was found cheating in her examination, can hardly serve as a model to her students, if she had been continued as an Assistant Professor in the respondent- University.
46. In T.S. Vasudavan Nair23, on which reliance is placed on behalf of the petitioner, the Supreme Court observed that, in the special facts and circumstances of that case, it felt that the appellant should not have been denied employment on the sole ground that he had not disclosed that, during emergency, he had been convicted under the Defence of India Rules for having shouted slogans on one occasion.
47. Reliance placed by Mr. C.D. Bahuguna, learned Senior Counsel, on the aforesaid judgment, in T.S. Vasudavan Nair23, is misplaced. The Supreme Court in R. Radhakrishnan22 has held that the judgment in T.S Vasudavan Nair23 had been rendered, as was evident from the judgment itself, on the special facts and circumstances of the said case; and could not be treated to be a binding precedent. In the light of the aforesaid judgments of the Supreme Court the services of the petitioner (either as a probationer or as a temporary employee in terms of the Statute of the University/the contract of appointment dated 07.12.2015, and whose services had not been confirmed) could be terminated, for concealment/suppression of material facts in the application form submitted by her on 18.06.2015 seeking appointment, without holding a disciplinary enquiry. The submission of Mr. C.D. Bahuguna, learned Senior Counsel, that failure to hold a disciplinary enquiry, in such circumstances, is fatal does not merit acceptance.
48. The contention that the Board of Management ought to have initiated disciplinary proceedings against the petitioner, and its failure to do so has resulted in a patent illegality, is only to be noted to be rejected. As noted hereinabove no order of confirmation was, admittedly, passed 31 confirming the services of the petitioner or in declaring her to have successfully completed her probation period of two years, on her having completed two years of service on 07.12.2017. In terms of Rule 4(c) of the Statute of the respondent-University, and in terms of Clause 4 of the agreement of appointment dated 07.12.2015, the petitioner must be held to have either continued as probationer, or to be a temporary employee of the respondent-University, till the impugned order was passed on 04.04.2018 terminating her services. As the petitioner continued to remain on probation or as a temporary employee, and termination of her services was not for any misconduct on her part after her appointment with the respondent-University on 07.12.2015, but for her having concealed material and relevant facts and to have misrepresented facts in her application form, it was wholly unnecessary for the respondent-University to conduct a disciplinary enquiry, before terminating her services. We see no merit in the contention that the impugned order must be quashed and the petitioner should be reinstated in service with all consequential benefits, including continuity of service.
III. Has an adverse order been passed against the petitioner without complying with principles of natural justice?
49. Sri C.D. Bahuguna, learned Senior Counsel, would submit that no adverse order can be passed against any person, which has civil or evil consequences, without strictly adhering to principle of natural justice, and without affording the person concerned an adequate opportunity of being heard. Learned Senior Counsel would rely on Dr. Binapani Dei28; D.K. Yadav29 in this regard.
50. It is no doubt true that an order by the State, to the prejudice of a person in derogation of his vested rights, may be made only in accordance with the basic rules of justice and fair play. The deciding authority is under a duty to give the person, against whom an enquiry is held, an opportunity to set up his version or defence, and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose, the person must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to 32 a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored, and an order to the prejudice of a person is made, the order is a nullity. (Dr. Binapani Dei28).
51. It is only after the petitioner was put on notice, was given opportunity of submitting her reply thereto, and an opportunity of being heard was given to her, by the Chancellor was the order dated 14.09.2017 passed by him, directing the Board of Management to examine the matter. Even prior thereto, the petitioner was put on notice vide proceedings dated 30.01.2017, and was given an opportunity to submit her reply thereto, which she did by her letter dated 17.02.2017. Since the impugned order dated 04.04.2018 was passed pursuant to the order passed by the Chancellor on 14.09.2017, it cannot be said that the said order dated 04.04.2018, terminating the services of the petitioner, was passed in violation of principles of natural justice. The contention, regarding violation of principles of natural justice, is therefore not tenable.
52. In D.K. Yadav29, the appeal before the Supreme Court was preferred against the order of the Labour Court, Haryana at Faridabad upholding the termination of the employee's services. The certified standing orders of the Company provided for automatic termination of service of an employee on absence without, or beyond the period of, sanctioned leave for more than 8 days. On his services being terminated for absence from duty for more than 8 days without leave or prior information, the employee contended that, despite his reporting to duty on 03.12.1980 and everyday continuously thereafter, he was prevented entry and was not allowed to sign the attendance register. There was a dispute, in D.K. Yadav29, as to whether or not the employee was absent from duty without leave for a period of more than 8 days. It is in this context that the Supreme Court held that rules of natural justice necessitate compliance, and the employee should have been given a reasonable opportunity of being heard. The judgment in D.K. Yadav29 has no application to the facts of the present case, since the 33 petitioner herein was put on notice, and was given a reasonable opportunity of being heard, by the Chancellor of the University. In any event, as shall be detailed later in this order, there is no dispute regarding the petitioner having concealed, in the application form submitted by her on 18.06.2015, that she was employed with the Bihar Agriculture University during that period; and she had suffered the punishment of temporary dismissal for two semesters for using unfair means with handwritten chits in her Ph.D. examination.
IV. Is failure of the Board of Management, to give the petitioner an opportunity of being heard, fatal?
53. Sri C.D. Bahuguna, learned Senior Counsel, would submit that the impugned order dated 04.04.2018, which contains the resolution of the Board of Management, makes it clear that the Board of Management did not afford the petitioner an opportunity of being heard, at any stage with respect to any of the allegations; it had reproduced Para. 5 of the order of the Chancellor dated 14-09-2018 in its resolution, and had re-assessed the allegations leveled against the petitioner, and then had, one-sidedly, arrived at the conclusion to remove the petitioner from service immediately, thereby ruining the entire service career of the petitioner; and while averments in this respect have been made in the writ petition, the University has vaguely denied the contents of the writ petition in its counter-affidavit.
54. As the petitioner was given an opportunity of being heard by the Chancellor, and the proceedings of the Chancellor dated 14.09.2017 formed the basis on which the impugned order of termination was passed pursuant to the resolution of the Board of Management of the respondent- University, it matters little that the petitioner was not given a second opportunity of being heard by the Board of Management. Even otherwise, the fact that the petitioner had suppressed/misrepresented the fact of her employment with the Bihar Agriculture University, to have misrepresented facts by stating that she was not imposed any punishment, and in concealing the fact of her having suffered the punishment of temporary dismissal for two semesters, is not in dispute. A direction to the Board of Management, to issue a notice to the petitioner and to give her another opportunity of being heard, would, in the facts and circumstances of the present case where the 34 facts of suppression/concealment/misrepresentation of relevant and material facts by the petitioner in her application form are not in dispute, be a needless formality, as no other result could have ensued.
55. The High Court, in proceedings under Article 226 of the Constitution of India, would not issue futile writs. A petition, under Article 226 of the Constitution, may be dismissed on the ground that issuance of a writ will be ineffective, infructuous, unnecessary or futile. If the Court is satisfied that no useful purpose would be served by issuing a writ, it can dismiss the application on that ground alone. As it is not the practice of Courts to issue meaningless writs the High Court while granting relief, on being satisfied that issuance of a writ is unnecessary, should consider whether grant of a writ would be an exercise in futility. (Suresh30, Balmadies Plantations31). Whenever a writ of mandamus would be unavailing, or if granted fruitless, it will be refused. (Bal Krishan Aggarwal32; Ajit Kumar Addy33). A writ of certiorari or mandamus should not be issued when they would be useless. (Debendra Bandhu Lahiri34; M/s SITCO35).
56. In S.L. Kapoor36, while holding that the impugned order was vitiated for failure to observe principles of natural justice, the Supreme Court let the matter rest there and chose not to quash the notification since the term of the committee was to run out in a few days time.
57. We see no reason, therefore, to issue a futile writ.
V. Allegations relating to the petitioner's OBC Certificate:
58. Sri C.D. Bahuguna, learned Senior Counsel, would submit that the first two allegations, as mentioned in the impugned order, relate to the OBC certificate of the petitioner; the University, in its counter affidavit, has not disputed the contents of the writ petition; even in the letter dated 12th July 2016, the Chief Personal officer of the University has also admitted the fact that the petitioner genuinely belongs to the OBC category; the ancestral house of the petitioner is in district Mau in the State of Bihar, but the petitioner was born in the territorial limits of the State of Uttarakhand, and 35 her entire education was in the State of Uttarakhand; the 'OBC certificate', the 'Birth certificate', and the 'Permanent resident certificate' were issued to her by the State of Uttarakhand; and it is well established by Govt. orders, that every person who has been residing in the territorial limits of the State of Uttarakhand, for a period of 15 years, becomes entitled to get a permanent resident certificate from the district where he/she has been residing.
59. We find considerable force in the submission of Sri C.D. Bahuguna, learned Senior Counsel, that, since the petitioner's status as an OBC is not in dispute, the impugned order of termination dated 04.04.2018, holding her failure to submit a recent Caste Certificate along with her application form to be fatal, is illegal. The petitioner had submitted her OBC Certificate, and the mere fact that it was not a recent one would not result in the petitioner ceasing to be a member of the Other Backward Classes. The impugned order of termination dated 04.04.2018, to the extent the petitioner was held guilty of not submitting a recent Caste Certificate, is invalid.
VI. Allegations relating to the petitioner claiming experience:
60. Sri C.D. Bahuguna, learned Senior Counsel appearing on behalf of the petitioner, would submit that the fifth allegation, levelled against the petitioner, relates to her claiming experience which was not correct; this allegation is vague; there is no description of the experience with respect to which this allegation is levelled; and there is no finding on this aspect in the impugned orders, nor has the University raised any argument on this vague allegation.
61. Notwithstanding the submission put forth by Sri Vinay Kumar, learned counsel for the fifth respondent, of the petitioner having been awarded excess marks by the Selection Committee, including towards experience though she had not claimed any, we see no reason to undertake a comparative evaluation of the inter-se merit of the petitioner vis-à-vis the fifth respondent, or to determine which of them is more meritorious. While we are in agreement with the submission of Sri C.D. Bahuguna, learned Senior Counsel, that this allegation is not specific, it is unnecessary for us to 36 dwell on this aspect any further, as suppression by the petitioner, in her application form, of her having suffered academic punishment, and her employment with the Bihar Agriculture University when she applied for the post of Assistant Professor in the respondent-University, would, by itself, justify the action of the Board of Management, of the respondent-University, in terminating her services.
VII. Allegations relating to academic punishment:
62. Sri C.D. Bahuguna, learned Senior Counsel, would submit that the third allegation, levelled against the petitioner, relates to concealment of academic punishment; although academic punishment was awarded to the petitioner in the year 2012 while pursuing her Ph.D. course, on the recommendation of the Disciplinary Committee of the University, the Academic council, in its meeting held on 30-10-2014, had exonerated the petitioner of the charge, and had removed 'conduct probation', and had issued a direction to issue 'satisfactory conduct' of the petitioner during her academic course; the Registrar, G.B. Pant University, Pantnagar issued a Certificate of 'satisfactory conduct' to the petitioner on 27-11-2014; the University issued a marks-sheet of Ph.D. to the petitioner on 18-12-2014, mentioning her conduct to be 'Satisfactory'; she secured excellent marks of 81.060% marks in the Ph.D. course; the Chief Personnel officer of the University, in the reply letter dated 12th July 2016 addressed to the Deputy Secretary of the Chancellor, explained that an academic punishment is a reformative process and it might not disentitle any student of pursuing higher studies or of depriving any student of getting employment anywhere; there was a reasonable justification for the petitioner not to disclose the past academic punishment in her application form; the act of non-disclosure of such fact, which had become immaterial in the course of time, may not amount to a willful concealment of a material fact; even otherwise, the stand of the University before the Chancellor, in its letter dated 12th July 2016, was that academic punishment may not be a ground to disentitle the petitioner from getting employment; and the allegation of concealment of the fact of academic punishment does not constitute a legal basis to remove a person 37 from service by a stigmatic and punitive order, without conducting disciplinary proceedings.
63. The office order of the Registrar of the respondent-University dated 04.06.2012 reads thus:-
"OFFICE OF THE REGISTRAR G.B. PANT UNIVERSITY OF AGRICULTURE & TECHNOLOGY PANTNAGAR- 263 145, U.S.NAGAR(UTTARAKHAND) NO. REG/SO/DC/2012/854 DATED: JUNE, 4, 2012 OFFICE ORDER This is a case arising out of alleged use of unfairness in the semester final examination of II Semister 2011-12. A report was lodged y the Invigilator Dr. Omvati, Asstt. Professor, Agronomy to Examination Supdt. College of Basic Science & Humanities and Dean C.B.S. & H. that Ms. Aneeta Yadav, Id. No. 30948, a Ph. D. scholar, was found using unfairness with hand written chits during II Semester 2011-12 final examination in the course "AST-705 Advances in Seed Science Research on 15.05.2012. The Dean C.B.S. & H referred the matter with all the papers to University Discipline Committee. The Discipline Committee investigated the case and also called Ms. Aneeta Yadav, Id. 30948 for interrogation when she accepted before the committee that she did possess hand written slips and was caught by the Invigilator.
Thus, it is evident from the statement of the student before the Discipline Committee and the complaint lodged by the Invigilator that Ms. Aneeta Yadav was guilty of using unfairness in the II Semister 2011-12 final examination.
Therefore, as per Academic Regulation on Use of Unfairness under chapter IV clause 37, the Discipline Committee found Ms. Aneeta Yadav, Id No. 30948 guilty of using unfairness during the II Semister 2011-12 final examination in the course "AST-705 Advances in Seed Science Research" and accordingly recommended the following punishment to Ms. Aneeta Yadav, Id No. 30948:
1. Temporary dismissal for two semesters i.e. II Semester 2011-12 and I Semester 2012-13.
2. Conduct Probation during her stay in the University.
The Vice Chancellor after considering the recommendation of the Discipline Committee has approved that the punishment as recommended by the University Discipline Committee be awarded to the student.
Accordingly, following punishment is hereby awarded to Ms. Aneeta Yadav, Id. No. 30948 under Chapter IV- clause 37 of the regulations:
1. Temporary dismissal for two semesters i.e. II Semester 2011-12 and I Semester 2012-13.38
2. Conduct Probation during her stay in the University.
REGISTRAR"
64. The minutes of the 372nd meeting of the Academic Council of the respondent-University, held on 30.10.2014, records the request of the petitioner, and one Shri Ratnakar Singh Chaudhary, for removal of conduct probation and issuance of a character certificate with satisfactory conduct. It is in this context that the Academic Council of the respondent-University resolved that, as per the recommendations of the Disciplinary Committee, the conduct probation, in respect of the petitioner and Shri Ratnakar Singh Chaudhary, be removed, and necessary documents with "satisfactory conduct" be issued as per Rules. Thereafter a certificate dated 27.11.2014 was issued, by the Deputy Registrar of the respondent-University, certifying that the petitioner was a student of the respondent-University from July, 2010 to March, 2014 for the degree of Ph.D. (Genetics and Plant Breeding) which she successfully completed; and, during the period of her stay in the University, her conduct had been satisfactory.
65. The P.G. transcript, issued by the Deputy Registrar on 18.12.2014 in favour of the petitioner, records her grade points. It also records that, after she underwent her first Ist Semester 2010-11 and IInd Semester 2010-11 and the Ist Semester 2011-12, she was permitted to discontinue her studies temporarily for the IInd Semester 2011-12 and the Ist Semester 2012-13; and that she completed her IInd Semester relating to year 2011-12 and the Ist Semester of the year 2012-13, with the IInd Semester in the year 2013-14 and, thereafter, she submitted her thesis on 01.02.2014, and the viva-voce for the thesis was conducted on 26.03.2014 with satisfactory result.
66. Reliance placed on behalf of the petitioner, on the reply submitted by the University to the Deputy Secretary of the Chancellor dated 12.07.2016, to contend that the University had also held that the academic punishment was merely a reformative process, and should not deprive any student of getting employment anywhere, is wholly misplaced. The fifth respondent filed Writ Petition (S/B) No. 156 of 2016 questioning the 39 appointment of the petitioner as an Assistant Professor (Genetics and Plant Breeding), and the said Writ Petition was disposed of by this Court, by its order dated 27.04.2016, holding that the petitioner had the alternative remedy of approaching the Chancellor. This Court directed that the matter be decided by the Chancellor, at the earliest, after affording an opportunity of hearing to all affected parties. Respondent no. 5 submitted his representation to the Chancellor on 18.06.2015 wherein he contended that the petitioner had secured employment concealing her previous employment with the Bihar Agriculture University, and of her being awarded punishment of conduct probation (CP) as she was found using unfair means when she was pursuing her Ph.D. course from the University.
67. It is only thereafter, on the Office of the Chancellor calling upon the Vice-Chancellor of the University vide letter dated 14.06.2016 to submit its explanation to the allegations made by the fifth respondent, that the Additional Chief Personnel Officer of the University had submitted his reply, vide letter dated 12.07.2016, defending the appointment of the petitioner as Assistant Professor (Genetics and Plant Breeding). It is only after the Chancellor had passed an order on 14.09.2017, regarding the petitioner having concealed the fact of her previous employment as well as her being awarded punishment, and had directed the Board of Management of the University to convene a Special meeting, and take an appropriate decision, did the Board of Management consider the matter, resulting in the impugned order dated 04.04.2018 being passed terminating the services of the petitioner.
68. As the respondent-University had, in its letter dated 14.06.2016, sought to justify its action in having appointed the petitioner as Assistant Professor (Genetics and Plant Breeding), and the matter was examined by the Board of Management only after the Chancellor had directed it to do so vide his proceedings dated 14.09.2017, reliance placed, on behalf of the petitioner, on the earlier letter of the Additional Chief Personnel Officer of the University dated 12.07.2016, is of no avail.
4069. The order dated 14.09.2017 of the Governor (Chancellor of the University) takes note of the allegations in the representation of the fifth respondent regarding concealment by the petitioner of some facts in her application form. These include the allegations that the petitioner had concealed that she was punished by the University for use of unfair means in the year 2012, as also of her previous employment i.e. she was an employee of the Bihar Agriculture University at the time when she submitted her application to the respondent-University seeking appointment as an Assistant Professor; and that she had neither applied through the proper channel nor was she granted a No Objection Certificate by the Bihar Agriculture University.
70. The said order of the Chancellor dated 14.09.2017 also records that a report and reply was sought from the University, as well as the petitioner, regarding the representation of the fifth respondent; and an opportunity of hearing was given both to the petitioner and the fifth respondent, as well as the University; during the hearing given to the petitioner, it came out that the factum of her employment in Bihar was not revealed by her while submitting her application; the application was also not routed through the proper channel, and she did not have the NOC from the employer; the other issue was the matter of the petitioner using unfair means during her examination; this point had also not been mentioned anywhere; the Selection Committee was unaware of this background; and, even though the possible currency of the punishment of reprimand for the misconduct had been over, this did not morally absolve the candidate.
71. The said order of the Governor (Chancellor of the University) further records that had the Selection Committee been aware of the unfair means case, the concealment of employment, and the non-production of No Objection Certificate, they may not have given her preference over other candidates with a clean and unblemished record; and a person caught in an exam using unfair means, which went unchallenged by the candidate, can hardly be expected to be a good example for others as a teacher; and the application scrutiny process which overlooked all these factors completely, and in fact concealed and kept them away from the Selection Committee, 41 was flawed ab initio. The Governor directed that, in such circumstances, a Special meeting of the Executive of the University i.e. the Board of Management be convened, and the facts as brought out above, also be placed before them for an appropriate decision as they were the appointing authority. A Special meeting of the Board of Management was directed to be convened to take a decision in the light of the above observations within seven days from the date of the order.
72. The contention, that there was reasonable justification for the petitioner not to disclose the past academic punishment in her application form, and such non-disclosure had become immaterial in the course of time, is not tenable. The column, which the petitioner was required to fill in the application form i.e. column 10(b), specifically required her to state as to whether she had ever been punished by the University. With respect thereto, the petitioner had answered as "No". The petitioner had, thereby, suppressed the fact of her having been imposed punishment by the Registrar of the University, of temporary dismissal for two semesters and of conduct probation during her stay in the University. Even if the petitioner's contention that the order of punishment, to the extent of conduct probation during her stay in the University was later set aside and she was no longer required to refer to a punishment which has been set aside, is accepted, the petitioner was imposed another punishment of temporary dismissal for two semesters, which she suffered without demur, and her failure to state, as against column no. 10(b), that she was imposed the punishment of temporary dismissal for two semesters, for using unfair means in the Ph.D. examination (on her having found to be using handwritten chits in the examination), would, undoubtedly, amount to concealment and misrepresentation of relevant and material facts. The contention, that concealment of the fact of academic punishment does not constitute a legal basis to terminate the services of the petitioner without conducting disciplinary proceedings and by way of a stigmatic and punitive order, is not tenable. As noted hereinabove, where the services of a probationer are terminated, for having misrepresented/ suppressed/ concealed facts in her application form 42 submitted by her seeking appointment to a post, no disciplinary proceedings need be held. The contentions, under this head, also necessitate rejection.
VIII. Is failure of the Chancellor, to give the petitioner an opportunity to submit her explanation regarding academic punishment, fatal?
73. Sri C.D. Bahuguna, learned Senior Counsel, would submit that the Chancellor of the University did not call upon the petitioner to submit her explanation to the allegations regarding academic punishment; the office of the Chancellor, while calling for the report of the Vice-Chancellor of the University regarding the allegations made by the fifth respondent vide letter dated 30th January 2017, also asked the Vice-Chancellor to obtain an explanation from the petitioner on certain points only i.e. regarding the justification of obtaining caste certificate mentioning Uttarakhand State therein, despite her permanent address of Uttar Pradesh mentioned in the application form; the letter of the Chief Personal Officer of the University dated 10th February 2017 clearly stated that a copy of the letter of the office/Secretariat was enclosed, meaning thereby that the representation of the fifth respondent was not supplied to the petitioner along with the said letter; although the said letter dated 30th January, 2017 of the office of Chancellor, required the petitioner to justify her act of obtaining a caste certificate from the State of Uttarakhand only, the petitioner nonetheless submitted her detailed explanation on 17-02-2017 before the Chancellor, through the Chief Personal Officer of the University, on all the points raised in the said letter; the letter of the office of the Chancellor dated 30th January 2017 makes no mention of the allegation relating to concealment of academic punishment given to the petitioner; and no opportunity was afforded to the petitioner, from the office of Chancellor, to submit her explanation on the allegation of academic punishment.
74. Learned Senior Counsel would submit that the petitioner, in the writ petition, has specifically pleaded that the Chancellor utterly failed to see that, in the show cause letter dated 30-01-2017 issued by its office, there was no allegation against the petitioner about her being involved in using unfair means, and about concealment of the fact of academic punishment by her, and therefore no opportunity had been afforded by the Chancellor to the 43 petitioner to meet and explain such allegation; non-affording an opportunity to the petitioner to meet and explain the said allegation, and defend herself against the said allegation, renders the impugned order of the Chancellor dated 14-09-2017 vitiated in law; in reply, the University has not categorically denied the averments, and has given a vague reply to the contents of the writ petition; the respondents have failed to adduce evidence to establish that the petitioner was given a show cause notice on the allegation relating to academic punishment; the Chancellor has stated, in his order dated 14.09.2017, that the petitioner's reply was on record, and hearing was given to the petitioner; the Chancellor made adverse and critical remarks against the petitioner, and referred the matter for the appropriate decision of the Board of Management of the University; the main allegation against the petitioner, which influenced and prejudiced the mind of the Chancellor against her and which impelled him to make adverse and critical remark against the petitioner, was the allegation of using unfair means and academic punishment; if the petitioner had been afforded adequate and reasonable opportunity of hearing to explain the allegation, about using unfair means and academic punishment, she would have explained that she had been later exonerated by the Academic council on the recommendation of the Disciplinary Committee, which had earlier recommended awarding of academic punishment to the petitioner; in such circumstances the Chancellor should not have made adverse and critical remarks against the petitioner in the order dated 14-09-2018; this very adverse and critical remark also prejudiced the members of the Board of Management to remove the petitioner from service in a high handed manner; and the order dated 14- 09-2017 passed by the 3rd respondent-Chancellor is vitiated in law, and is liable to be quashed.
75. The Chief Personnel officer of the respondent-University informed the petitioner, vide letter dated 10.02.2017, that, on the representation submitted by the fifth respondent, the Chancellor had directed that, in the light of the points mentioned in the said letter, the petitioner may present her defense with evidence. The petitioner was requested to ensure to make available her defense in writing, to the Office of the University, 44 preferably within seven days, so that it could be sent to the Governor/Chancellor.
76. In reply thereto the petitioner, vide letter dated 17.02.2017, submitted her point-wise reply to the letters dated 10.02.2017 and 30.01.2017. In the said letter dated 17.02.2017, the petitioner neither sought for a copy of the representation dated 18.05.2016, submitted by the fifth respondent to the Chancellor, nor did she state that she was ignorant of its contents. In his representation dated 18.05.2016, the fifth respondent had specifically stated that the University had fallen in error in ignoring or taking cognizance of the fact that the petitioner had concealed the very crucial fact that, when she was pursuing her Ph.D. from the University, she was found using unfair means with handwritten chits during her Second Semester Exam 2011-12, and was imposed the punishment, vide letter dated 04.06.2012, of temporary dismissal for two semesters i.e. IInd semester 2011- 12 and Ist Semester 2012-13, and conduct probation during her stay in the University. It is for the first time, in Writ Petition (S/B) No. 173 of 2018 filed by her, has the petitioner now contended that she was not furnished a copy of the letter of the fifth respondent dated 18.05.2016 and, if she had been so furnished, she would have submitted her reply with respect to her being imposed conduct probation also.
77. While the letter dated 30.01.2017, addressed by the Deputy Secretary to the Governor (Chancellor of the University) to the respondent- University, does not refer to the petitioner having suffered a punishment, when she was undergoing her Ph.D. course in the respondent-University, for using unfair means with handwritten chits during her IInd Semester 2011-12 final examination on 15.05.2012, in "AST-705 Advances in Seed Science Research" course, it is clear from the proceedings of the Chancellor dated 14.09.2017 that an opportunity of hearing was given by him to the petitioner, the respondent-University and the fifth respondent. The said order of the Chancellor dated 14.09.2017 records the use of unfair means by the petitioner in her examination, of this point not finding mention anywhere, of the Selection Committee being unaware of this background, and "even 45 though the possible currency of the punishment of reprimand for the misconduct had been over, this does not morally absolve the candidate."
78. It is evident from the aforesaid observations of the Chancellor that he was aware that the petitioner was imposed the punishment, of temporary dismissal for two semesters, i.e. IInd Semester 2011-12 and Ist Semester 2012-13, and of Conduct Probation during her stay in the University; and that the Academic Council, in its meeting held on 30.10.2014, had exonerated her, removed the order of "Conduct Probation"
and had directed that a certificate of "Satisfactory Conduct" be issued for her academic course. The fact that the Chancellor was so aware is fortified by his observation that, if the Selection Committee had been aware of the use of the unfair means case besides concealment of employment and non- production of NOC, they may not have given her preference over other candidates with a clean and unblemished record; and a person caught in an exam using unfair means, which went unchallenged by the candidate, could hardly be expected to be a good example for others as a teacher.
79. It is not in dispute that the petitioner suffered an order of punishment, vide proceedings dated 04.06.2012, of temporary dismissal for two semesters and conduct probation, she underwent the punishment of temporary dismissal for two semesters i.e. IInd Semester 2011-12 and Ist Semester 2012-13. It is only, thereafter, did she undergo the IInd semester course for the year 2012-13, thereafter the Ist semester and IInd semester course of the year 2013-14, and was finally awarded a provisional degree of Ph.D. on 28.03.2014. While the punishment of "conduct probation" was no doubt withdrawn, and a certificate of "satisfactory conduct" was directed to be issued by the Academic Council in its meeting held on 30.10.2014, long after the petitioner had completed her Ph.D. course and was awarded a provisional Ph.D. degree on 28.03.2014, the petitioner suffered the other punishment of temporary dismissal for two semesters, i.e. IInd Semester 2011-12 and Ist Semester 2012-13, without demur, and the said punishment has always remained in force, and was never revoked or set aside. It is evident from the order of the Chancellor dated 14.09.2017 that he was aware 46 of the punishment imposed on the petitioner, and of the revocation of a part of the punishment, i.e. "conduct probation", later.
80. As the proceedings dated 14.09.2017 show that the Chancellor was aware of all these aspects, the contention, urged on behalf of the petitioner, that, if the petitioner had been afforded an opportunity, she would have brought the fact of the punishment of "conduct probation" having been revoked, and of a certificate of "satisfactory conduct" having been issued to her later to the notice of the Chancellor, is of no avail. The action taken against the petitioner is not for her having suffered the punishment itself, but for her having failed to state these facts in her application form, resulting in the Selection Committee not being made aware of her having undergone a punishment, and for suppression of the fact of her having suffered the punishment.
81. In such circumstances, failure of the Chief Personnel Officer of the respondent-University to specifically refer to the academic punishment in his proceedings dated 30.01.2017, resulting in the petitioner's inability to explain the said punishment in her reply letter dated 17.02.2017, is of no consequence. It is no doubt true that the Chancellor had made critical remarks against the petitioner in his proceedings dated 14.09.2017, including of her suppressing the fact of her having been employed with the Bihar Agriculture University and of her having suffered academic punishment for using "unfair means" in her Ph.D. examination. The petitioner has, in none of the proceedings including in the writ petition filed by her, denied her having been imposed the punishment of temporary dismissal for two semesters, for having used unfair means in the Ph.D. examination and to have been found using handwritten chits therein. The fact that she suffered the said punishment without demur has also been suppressed in her application form filed by her on 18.06.2015 seeking appointment as Assistant Professor (Genetics and Plant Breeding) in the respondent- University.
82. The Board of Management of the respondent-University, in its 231st meeting held on 16.10.2017, noted that the petitioner, during her stay 47 in the University in the year 2012, was found guilty of use of unfair means; and the Screening Committee of the Agricultural college, who screened the application form of the petitioner, ought to have been made aware about the use of unfair means by the petitioner in the year 2012. In its subsequent meeting held on 13.03.2018, the Board of Management noted that the petitioner had concealed facts on point no. 10(b) which required her to state as to whether she had ever been punished by the respondent-University, and had written the word "No" though she was charged for punishment in the past by the Office Order of the Registrar dated 04.06.2012. The Board of Management has taken note of facts which are not in dispute; and has rightly come to the conclusion that the petitioner had concealed the fact, of her having suffered a punishment, in the relevant column of her application form. Termination of the services of the petitioner, by the Board of Management of the respondent-University, cannot therefore be said to be highhanded or as vitiated in law.
IX. Allegations relating to concealment of employment:
83. Sri C.D. Bahuguna, learned Senior Counsel, would submit that the fourth allegation, levelled against the petitioner, relates to concealment of her previous employment in the application form, not applying for the post through the proper channel, and in not obtaining NOC from the Bihar Agriculture University; since the question of supplying information about the previous employment is coupled with the pre-condition of applying for the post through proper channel, and obtaining NOC from the previous employer, the petitioner had no option but to mention in the application form as 'not applicable', for the simple reason that the petitioner was employed in Bihar Agriculture University by appointment letter dated 13-01-2015 on probation for a period of two years with a stipulation, in Para. 5 of the appointment letter, that, during the probation period, her services were liable to be terminated; being a probationer, the petitioner had no legal right to the post until she had completed at least the period of 2 years of probation; she had, therefore, no vested right to ask her employer, in the month of June, 2015, to send her application form to the G.B. Pant University through the proper channel, and issue an NOC in her favour; the stand of the University, 48 as put forth before the Chancellor in the letter dated 12th July 2016, is that non-disclosure of this fact was not material; if the petitioner had disclosed her previous employment, she would have got some more marks for her experience in the Bihar Agriculture University; non-disclosure of the previous employment may not amount to concealment of any material fact;
and it may not constitute a legal basis to remove a person from service by a stigmatic and punitive order, without conducting disciplinary proceedings.
84. As noted hereinabove the entire issue, of having falsely stated and misrepresented facts in the application form, came to light only on a challenge being made by the fifth respondent to the appointment of the petitioner as an Assistant Professor in the respondent-University. The fifth respondent was informed, vide letter dated 15.12.2015, that the petitioner had worked as an Assistant Professor (Genetics and Plant Breeding) in the Bihar Agriculture University from 31.01.2015 to 05.12.2015. It is evident, from the said letter dated 15.12.2015, that the petitioner continued to be in the employment of the Bihar Agriculture University even after submission of her application form, seeking appointment as Assistant Professor (Genetics and Plant Breeding) in the respondent-University, on 18.06.2015.
85. The stand taken by the petitioner, in the present writ petition, as to why she had filled up Column No. 14 as "not applicable", is at variance with what she had stated in her reply to the proceedings dated 10.02.2017 and 30.01.2017. In her letter dated 17.02.2017, the petitioner had stated that, initially, she had submitted her application, for the post of Assistant Professor in the respondent-University, pursuant to the Advertisement dated 07.01.2012; at that time she was not employed anywhere; on that very basis the petitioner's old bank draft dated 06.03.2012 was accepted, along with her application made pursuant to the subsequent Advertisement A-20/2015; during course of time, she was selected in the Bihar Agriculture University; she appeared in the interview on the basis of her earlier application, and was selected; prior to her joining the post of Assistant Professor on 08.12.2015, she had resigned from Bihar Agriculture University on 05.12.2015; it was apparent that no fact had been concealed by her; and the latest application was made by her on the basis of the initial application dated 07.01.2012.
4986. As noted hereinabove, Advertisement No. A-20/2015 issued in June, 2015 required all candidates to submit a fresh application for their candidature to be considered for appointment in the applied posts. The petitioner submitted a fresh application on 18.06.2015. She was therefore obligated to fill in all the particulars afresh in her application dated 18.06.2015. Reliance placed by her on her earlier application to contend that, when she had submitted her earlier application, she was not employed anywhere is therefore of no avail.
87. The stand taken by the petitioner in Writ Petition (S/B) No.173 of 2018, that she had filled up Column No. 14 as "not applicable", as she was on probation for a period of 2 years pursuant to her appointment in the Bihar Agriculture University on 31.01.2015, is not tenable. Even during the period of probation, the petitioner continued in the employment of the Bihar Agriculture University. While she submitted her resignation, from the post held by her in the Bihar Agriculture University, on 05.12.2015 just two days prior to her appointment as an Assistant Professor in the respondent- University on 07.12.2015, it does not appear that her resignation was accepted by the Bihar Agriculture University before she joined duties as an Assistant Professor in the respondent-University on 08.12.2015. It is only if, and after, her resignation had been accepted by the Bihar Agricultrual University, can the petitioner be heard to contend that she was no longer in the employment of the Bihar Agriculture University. It is evident, therefore, that the petitioner had, by filling up column 14 of her application form dated 18.06.2015, as "not applicable", not only suppressed the fact of her being employed, but had also sought to avoid having her application forwarded through the Bihar Agriculture University.
88. The contention, that being a probationer the petitioner had no legal right to the post until she completed the period of probation of two years, is not tenable. The petitioner continued to be in the employment of the Bihar Agriculture University even during her probation. In fact, when she submitted her application form on 18.06.2015 seeking appointment as an Assistant Professor in the respondent-University, she was in the employment 50 of the Bihar Agriculture University; and she remained in the services of the Bihar Agriculture University for more than 5 months thereafter till she submitted her resignation on 05.12.2017. It is not even the petitioner's case that she had requested the Bihar Agriculture University to forward her application to the respondent-University, and the Bihar Agriculture University had refused to do so. Column No. 15 of the prescribed application form, to which the petitioner had chosen not even to refer to in the application submitted by her on 18.06.2015, required the petitioner not only to obtain an NOC from the Bihar Agriculture University, but to have her application forwarded by the said University to the respondent- University. The petitioner has avoided complying with this requirement, and has directly submitted her application form to the respondent-University without its being forwarded by the Bihar Agriculture University, or the said University issuing an NOC in her favour. The contention, that non- disclosure of this fact is not material, is not tenable. The petitioner was obligated to disclose all relevant and material facts in her application form. Not only has she avoided furnishing details of her employment with the Bihar Agriculture University, she has also failed to comply with the procedure stipulated in the application form of having her application forwarded by the Bihar Agriculture University, and for the said University to issue an NOC in her favour. Concealment/ suppression/misrepresentation of these relevant and material facts, undoubtedly, constitutes a legal basis to terminate the services of the petitioner.
X. "Declaration Clause" in the Advertisement:
89. Sri C.D. Bahuguna, learned Senior Counsel, would submit that, in the impugned order of punishment, reference is made to the 'declaration clause' of the application form, and on that basis the impugned order of punishment has been justified; the petitioner has challenged the 'declaration clause' of the application form as illogical, irrational, unconscionable, arbitrary and illegal; there is no concealment of facts by the petitioner, in view of the circumstances narrated hereinabove; there is no legal justification to remove the petitioner from service on the basis of the 'declaration clause' of the application form; even if it is assumed that there 51 was a false declaration on the part of the petitioner in the application form, the declaration clause does not entitle the University or the Board of Management to remove the petitioner from service unceremoniously by a punitive and stigmatic order, without resorting to disciplinary proceedings as provided under Clause 4 (d) (1) of the Statute of the University; and the impugned order of punishment is vitiated on this ground also.
90. The requirement, of the declaration prescribed in the application form to be signed by the applicant, is to ensure that true and correct facts are stated in the application form; and the applicant does not conceal facts or withhold information regarding his/her past service and record. The petitioner has concealed and withheld information regarding her past service with the Bihar Agriculture University, and of her having suffered the punishment of temporary dismissal for two semesters while she was undergoing her Ph.D. course with the respondent-University. The declaration clause, by itself, confers power on the respondent-University to terminate the services of the petitioner as the entries made by her, in her application form, are evidently false and incorrect. The contention that there was no concealment of facts is not tenable.
91. Except for a vague plea that the declaration clause is illogical, irrational, unconscionable, arbitrary and illegal, the petitioner has not shown how the said clause can be said to suffer from any such infirmity. The contention that, even if there is a false declaration in the application form, both the University and the Board of Management are not entitled to terminate the services of the petitioner, without resorting to disciplinary proceedings, is not tenable. As noted hereinabove, the requirement of holding a disciplinary enquiry, for terminating the services of a probationer, is not applicable in cases where the termination of service is for concealment/suppression/misrepresentation of material facts in the application form submitted by a person seeking employment.
XI. W.P. No. 153 of 2018 filed by the 5th respondent:
92. Sri Vinay Kumar, learned counsel for the fifth respondent, would submit that, on a fair and proper appraisal of the comparative merit of 52 the petitioner and the fifth respondent, it is clear that the petitioner has been awarded marks to which she was not entitled to; if those marks are reduced, it is the fifth respondent, and not the petitioner, who would have stood first in the order of merit; consequently, the fifth respondent would have been appointed as an Assistant Professor (Genetics and Plant Breeding) in the respondent-University; in any event, on the services of the petitioner being terminated by the respondent-University more so at the behest of the fifth respondent on the basis of whose complaint the entire truth came to light, the fifth respondent, who stood next in the order of merit, is entitled to be appointed as an Assistant Professor (Genetics and Plant Breeding) in the respondent University.
93. Sri C.D. Bahuguna, learned Senior Counsel, would submit that Writ Petition No. 153 of 2018 (S/B) was filed by the 5th respondent before this Court, immediately after the impugned order of punishment dated 04- 04-2018 was passed; a number of artificial grounds were raised in this petition which were never raised before the Chancellor through representation or otherwise; frivolous grounds were raised in the said writ petition with the sole view to gain employment, which he lost on merits during the selection process; in this writ petition, the selection process was challenged by the fifth respondent, sitting over the decision of the expert body; and the Division Bench of this Court, which earlier heard Writ Petition No. 153 of 2018 (S/B), was of the view that Writ Petition No. 153 of 2018 (S/B) was not liable to be heard until disposal of the Writ Petition filed by the petitioner, and if the petitioner succeeded in the writ petition, the writ petition filed by the fifth respondent would fail automatically.
94. Sri Rajendra Dobhal, learned Senior Counsel appearing on behalf of the respondent-University, would place reliance on the judgment of the Supreme Court, in Raghbir Chand Sharma37, to contend that, on the termination of the services of the petitioner, the respondent-University is now required to call for applications afresh; the mere fact that the fifth respondent stood at Serial No. 2 in the order of merit would not confer any right on him to claim appointment as an Assistant Professor, consequent on the services of the petitioner (the candidate who stood first) being 53 terminated; and the University would be required to issue an advertisement afresh, inviting applications from eligible candidates.
95. In Raghbir Chand Sharma37, the Supreme Court observed that, as rightly contended for the appellant-State, the Notification issued inviting applications was in respect of one post and the first candidate in the select panel was not only offered but, on his acceptance of the offer, came to be appointed; it was only subsequently that he came to resign; with the appointment of the first candidate, for the only post in respect of which the consideration came to be made and a select panel prepared, the panel ceased to exist, and had outlived its utility and, at any rate, no one else in the panel could legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently; the Circular Orders dated 22.3.1957 related to select panels prepared by the Public Service Commission, and not a panel of the nature under consideration; even as per the Circular Orders, as also the decision relied upon for the first respondent, no claim could be asserted and countenanced for appointment after expiry of six months; and there was no rhyme or reason for such a claim to be enforced before Courts, leave alone there being any legally protected right in the first respondent to get appointed to any vacancy arising subsequently.
96. In Raghbir Chand Sharma37, the first candidate in the select list had joined service and had subsequently resigned; and the person, who stood second in rank, claimed appointment in the vacancy caused on the resignation of the person who had secured the first rank. It is in this context that the Supreme Court had observed that no person in the panel could legitimately contend that he/she should have been offered appointment in a vacancy which arose on account of the person, earlier appointed, having resigned from the post. In the present case, the services of the petitioner were terminated for concealment/suppression/misrepresentation of material facts.
5497. While we see no reason to sit in judgment, over the exercise of evaluation undertaken by the Selection Committee, in awarding the petitioner more marks than the fifth respondent, the fact remains that the services of the petitioner were terminated for having concealed/suppressed material and relevant facts in her application form seeking employment with the respondent-University. Though the fifth respondent cannot, as of right, claim appointment in the vacancy caused as a result of the termination of the services of the petitioner, more so as more than 3 years have elapsed since the petitioner was initially appointed to the said post, we are satisfied that these are all matters not for the Court, but for the Board of Management of the University, to examine, as it is the Board which is the appointing authority and a decision in this regard can only be taken by them in accordance with law.
98. Suffice it, therefore, to direct the Board of Management of the respondent-University to convene a meeting of its members, as expeditiously as possible, and, in any event, not later than three months from the date of receipt of a certified copy of this order, and take a considered decision whether or not the fifth respondent should be appointed as an Assistant Professor in the vacancy caused as a result of the termination of the services of the petitioner or whether the University should, instead, invite fresh applications from eligible candidates for appointment to the said post.
XII. Conclusion:
99. In the light of the observations made hereinabove, Writ Petition (S/B) No.173 of 2018 filed by the petitioner is dismissed, and Writ Petition (S/B) No. 153 of 2018 filed by the fifth respondent is disposed of. However, in the circumstances, without costs.
(Alok Singh, J.) (Ramesh Ranganathan, C.J.)
22.02.2019 22.02.2019
Rahul