Jharkhand High Court
Harendra Prasad Singh vs The Central University Of Jharkhand on 11 October, 2018
Author: S.N.Pathak
Bench: S.N.Pathak
1
IN THE HIGH COURT OF JHAKHAND AT RANCHI
W.P.(S)No.5726 of 2016
--------
Harendra Prasad Singh. ... ... ...Petitioner
-Versus-
1. The Central University of Jharkhand, through its Registrar, Ratu-Lohardaga Road, P.O. Brambe, P.S. Mandar, Dist. Ranchi.
2. The Vice-Chancellor, Central University of Jharkhand, Ratu- Lohardaga Road, P.O. Brambe, P.S. Mandar, Dist. Ranchi.
3. The Registrar, Central University of Jharkhand, Ratu-Lohardaga Road, P.O. Brambe, P.S. Mandar, Dist. Ranchi.
4. Dr. Ajai Singh. ... ... ...Respondents
---------
CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioner: Mr. Anil Kumar Sinha, Sr. Advocate.
Mr. Raunak Sahay, Advocate.
Mr. Abhishek Sinha, Advocate.
For the Respondents: Mr. Rahul Kumar Gupta @ Rahul Gupta, Advocate.
---------
14/ 11.10.2018 The petitioner has approached this Court with a prayer for appointment to the post of Head of the Centre for Water Engineering and Management and also for quashing of the order dated 05.08.2016 (Annexure-
6) whereby the respondent No.4 Dr. Ajai Singh, Associate Professor has been re-appointed as the Head of the Centre for Water Engineering and Management.
2. The factual exposition, as has been delineated in the writ petition, is that the petitioner has acquired his Ph.D. Degree from I.I.T. Roorkee and was an Associate Professor in North-Eastern Regional Institute of Science and Technology, Itanagar, Arunachal Pradesh under the Ministry of Human Resource Development, Government of India. The petitioner joined as a Professor in the Centre for Water Engineering and Management, Central University, Jharkhand, Brambe, Ranchi on 15.9.2014.
3. It is the case of the petitioner that prior to joining in the Central University, Brambe in the year 2014, post of the rank of Professor in the Centre for Water Engineering and Management at Central University, Jharkhand, Brambe, Ranchi was not available and as such respondent No.4 being the Associate Professor was appointed as Head of the Centre/Department in terms of notification bearing No.CUJ/Gen.Adm./32/2010/856 dated 18.7.2013, issued under the signature of the Registrar, Central University of Jharkhand, Brambe, Ranchi for a period of three years or till his superannuation whichever is earlier.
4. It is specific case of the petitioner that as per the statutes of the University and Ordinance on Heads of Departments/Centres and Powers and 2 Functions of Heads of Departments/Centres under Section 28 of the Central Universities Act, 2009 read with Statutes 15, the petitioner was entitled for appointment as Head of the Centre/Department being a Professor. The petitioner was discharging his duties in the right earnest looking forward for his appointment as Head of the Centre/Department, Centre for Water Engineering and Management. The services of Dr. Ajai Singh-respondent No.4 as a Head of the Centre/Department came to an end since his appointment was for a period of three years or till his superannuation whichever was earlier. The petitioner made a representation to the Vice-Chancellor on 16.8.2016 with a request for his appointment to the said post. To the utter surprise there was no letter of appointment as a Head of the Centre/Department in between 18.7.2016 to 16.8.2016. However, the respondents mala fidely antedated the appointment letter of the Head of Centre/ Department as 5th August, 2016, whereby and whereunder the respondent No.4 Dr. Ajai Singh was reappointed to the said post by terms of office order No.CUJ/Gen.Adm./32/2010/178(A) dated 5th August, 2016. The ante-dated appointment of the respondent No.4 was brought to the notice of the Vice-Chancellor but no heed was paid and as such the petitioner has knocked the door of this Hon'ble Court.
5. Mr. Anil Kumar Sinha, learned Sr. Counsel assisted by Mr. Amit Kumar Verma strenuously urges that re-appointment of the Respondent No.4 is totally against the provision of statutes and has been done with ulterior motive and mala fide intention. Learned Sr. Counsel assails the impugned order on the following grounds:
i. the order of appointment of respondent No.4 is without jurisdiction as it has not been done by the Executive Council. ii. the order of appointment was issued when the present Rule was not in existence. Respondent No.4 was appointed on 5.8.2016 whereas Rules/Ordinance came into existence on 27.03.2017 and as such the appointment itself was dehors the Rules.
Learned Senior Counsel emphatically argued that even if it is taken into consideration that the appointment was as per the discretion of the Vice- Chancellor, it is settled principle of law that discretion cannot be arbitrary. It has been held in catena of decisions that void order even confirmed is also illegal. Learned Sr. Counsel argued that petitioner is having better qualification than the respondent No.4 and on the post of Head of the Centre/Department only Professor can be appointed and petitioner is having the qualification of Professor and respondent No.4 though not eligible for the said appointment, 3 has been illegally and arbitrarily appointed to the said post dehors the Rules and also the appointment is done by the authority who was not competent and as such it is without jurisdiction. Learned Sr. Counsel places heavy reliance on the following cases:
i. 1987 PLJR-838;
ii. AIR 74 SC-555;
iii. AIR 76 SC-490;
iv. 2000(8) SCC 395;
v. 2017 (3) SCC 646;
vi. AIR 99 SC 844
6. It has been further argued by the learned Sr. Counsel that the appointment of respondent No.4 was made in view of the provisions contained in Ordinance O.A. 5 for a period of three years but the O.A. was to be published in official gazette as required under Section 43(i) of the Central Universities Act. The gazette notification was done on 6.3.2017 and when the impugned order (Annexure-6) was issued, O.A. 5 was merely a draft Ordinance and not a legal document. Since gazette notification itself was done on 6.3.2017 the impugned order is void and without jurisdiction.
7. Per contra counter-affidavit has been filed.
8. Mr. Rahul Kumar Gupta representing the University justifies the appointment of respondent No.4 and argues that statutes No.37, O.A.5 came into existence along with the University so it is not dependent on any gazette notification as per Statute 37 (5), 43(3). The Vice-Chancellor was fully empowered to appoint the petitioner in view of Section 11 of the Central Universities Act, 2009. In exercise of the power, the Vice-Chancellor appointed the respondent No.4 as Head of the Centre/Department and the same was ratified by the Executive Council in its meeting held on 14.09.2013. Respondent No.4 Associate Professor was re-appointed as Head of the Centre for Water Engineering and Management vide Annexure-6 w.e.f. 18.07.2016. The said appointment was also made by the Vice-Chancellor in terms of power provided in Section 11(3). The matter of appointment of respondent No.4 was placed before the Executive Council for Central University of Jharkhand in its 19th Meeting held on 09.03.2017. The Executive Council in its 19th meeting considered the appointment of Respondent No.4 and held that right decision has been taken by the Vice-Chancellor.
9. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that no appointment can be made dehors the Rules. Before coming to a conclusion regarding validity of the appointment made on the post of Head of the Centre/Department, it would be 4 proper to examine the statutes, Rules and Guidelines for appointment as Head of the Centre/Department.
The Ordinance of the Central University of Jharkhand on Ordinance on Heads of Departments/Centres and Powers & Functions of Heads of Departments/Centre talks of appointment in following manner:
i. in the case of Department/Centres which have more than one Professor, the Head of the Department/Centre shall be appointed by the Executive Council on the recommendation of the Vice-Chancellor from among the Professors. ii. In the case of Department/Centres where there is only one Professor, the Executive Council shall have the option to appoint, on the recommendation of the Vice-Chancellor, either the Professor or an Associate Professor as the Head of the Department.
Provided that it shall be open to a Professor or Associate Professor to decline the offer of appointment as the Head of the Department/Centre.
iii. A person appointed as the Head of the Department/Centre shall hold office as such for a period of three years and shall be eligible for re-appointment, but shall not be considered for third consecutive term. Notwithstanding anything contained above a teacher shall cease to be Head on attaining the age of superannuation.
Statutes of the University Notification dated 21st March, 2011 16(4) Appointment of Heads of the Departments-(a) Each Department shall have a Head who shall be appointed by the Vice-Chancellor from amongst the Professors of the Department on the basis of rotation in order of its seniority:
Provided that if a Department has only one Professor, the Head of the Department shall be appointed from amongst the Professor and the senior most Associate Professor by rotation in the order of seniority.
43 (I) & (3) of the Gazette Notification reads as follows:
(I) Every Statute, Ordinances or Regulation made under this Act shall be published in the Official Gazette. (3) The power to make Statutes, Ordinances or Regulations shall include the power to give retrospective effect, from a date 5 not earlier than the date of commencement of this Act, to the Statutes, Ordinances or Regulations or any of them but no retrospective effect shall be given to any Statutes, Ordinances or Regulations so as to prejudicially affect the interests of any person to whom such Statutes, Ordinances or Regulations may be applicable.
10. From perusal of the aforesaid Rules, Ordinance and the Gazette Notification, it transpires that O.A. 5 talks of appointment of Head of the Department by the Executive Council on the recommendation of the Vice- Chancellor from among the Professors. Clause (ii) talks of in the case of Department/Centres where there is only one Professor, the Executive Council shall have the option to appoint, on the recommendation of the Vice-Chancellor, either the Professor or an Associate Professor as the Head of the Department. In the instant case, the Respondent No.4 was appointed by the Vice-Chancellor and not by the Executive Council. Even if the Vice- Chancellor had discretionary power to appoint the Head of the Department/Centre, the same could not have been exercised arbitrarily. As on date, a person having qualification of professor was available, respondent-Vice-Chancellor could not have recommended the name of respondent No. 4 as per his whims and also without having power to appoint. The power was to be exercised by the Executive Council and the Vice-Chancellor had merely the power of recommending the name and not for making appointment. Subsequent approval of the Executive Council and ratifying the decision taken by the Vice-Chancellor on 10.3.2017 cannot be said to be an appointment made as per the Rules. Admittedly, the petitioner possessed better qualification than the respondent No.4 and as such on the date of appointment, the petitioner was the only eligible and entitled person to be appointed as Head of the Centre as per the provisions contained in Ordinance O.A. 5 Section (i) and (ii) of the Central University of Jharkhand. As per the Rule, appointment to the post of Head of the Centre/Department has to be done by Vice-Chancellor from amongst the Professor of the Department on the basis of rotation in order of the seniority. If a Department has only one Professor, the Head of the Department shall be appointed from amongst the Professor and the senior most Associate Professor by rotation in the order of seniority, therefore, it may be comfortably said that appointment of respondent No.4 as Head of the Centre was not as per the provisions of O.A. 5 and petitioner was fully entitled for appointment as the Head of the Centre for Water Engineering 6 and Management in the Central University of Jharkhand. The Hon'ble Supreme Court in case of "E.P.Royappa vrs. State of Tamil Nadu & Anr.", reported in 1974 S.C. 555 has held:
"Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore, violative of Article 14 and if it affects any matter relating to public employment. It is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the letter comprehends the former. Both are inhibited by Articles 14 and 16.
The issue as to whether Vice-Chancellor was empowered for appointment of the Head of the Centre or not goes in favour of the petitioner as the Vice-Chancellor was merely the recommending authority and not appointing authority as it has to be approved by the Executive Council and the Rule 1 (i) of O.A. 5 clearly speaks that the Head of the Centre/Department shall be appointed by the Executive Council on the recommendation of the Vice-Chancellor from amongst the Professor. Discretionary power exercised by the Vice-Chancellor was totally arbitrary as when a person was available having requisite qualification, he ought not to have appointed the respondent No.4 beyond the Rules and as such discretion exercised by the Vice-Chancellor was totally unfair, illegal and arbitrary.
11. From perusal of Annexure-6 at page 46 of the writ petition, it transpires that nowhere it has been mentioned that appointment was made by the Executive Council on the recommendation of the Vice-Chancellor rather it clearly speaks of re-appointment by the Vice-Chancellor. It has been held in case of "Mohinder Singh Gill vrs. The Chief Election Commissioner, reported in (1978) 1 SCC 405 that:
"We may note that this is a well settled legal position in many judicial pronouncements of this Court, but it is not necessary to revert to the same. In para 8 of the 7 aforesaid judgment, V.R. Krishna Iyer, J. in his inimitable style states as under:
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.
Orders are not like old wine becoming better as they grow older."
"12 The aforesaid legal position, thus, makes the stand of the respondent unsustainable, resulting in the quashing of the impugned letters of rejection."
12. As a cumulative effect of the aforesaid, Rule, Guideline, legal proposition and judicial pronouncement, the writ petition stands allowed.
The Respondent-University is directed to proceed accordingly.
[Dr. S.N.Pathak,J.] P.K.S.