Madhya Pradesh High Court
Dr. Kunal Kanti Majee vs The Chancellor, Rani Durgawati ... on 3 July, 2007
Equivalent citations: 2007(4)MPHT268
Author: Dipak Misra
Bench: Dipak Misra, R.S. Jha
ORDER Dipak Misra, J.
In this intra-Court appeal preferred under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 the appellant has called in question the defensibility of the order dated 28-2-2007 passed in Writ Petition (S) No. 19090/06.
2. The facts which are requisite to be stated are that the appellant-petitioner (hereinafter referred to as 'the appellant') was issued an OBC caste certificate dated 29-6-1995 under non-creamy category, Annexure P-2 to the writ petition, on the base that he belongs to 'Karmkar Lohar' in the State of Bihar as well as in the State of Madhya Pradesh. As some disputes arose with regard to status of 'Lohar' caste in the State of Bihar a direction was issued by the High Court that the Lohar caste should be included in the category of Scheduled Castes. On the base of the said order the appellant was given provisional certificate on 24-2-1996, Annexure P-3 to the writ petition. Against the aforesaid direction of the High Court of Patna, the State of Bihar preferred a Special Leave Petition before the Apex Court wherein Their Lordships directed for grant of provisional Scheduled Caste certificate subject to decision in the SLP. Eventually the Apex Court in the case of Nittyanand Sharma and Anr. v. State of Bihar and Ors. , directed cancellation of the Scheduled Caste certificate. It was contended that by virtue of the said cancellation, the appellant was reverted to his original position meaning thereby the OBC category and the certificate granted earlier in that regard came into force.
3. As the facts get uncurtained Rani Durgawati Vishvavidyalaya published an advertisement on 19-2-1999 inviting applications for the post of Reader in the Management Faculty. The said post was reserved for OBC candidate. The advertisement was published nation wide irrespective of the native State and not confined to the State of M.P. The petitioner received the call letter for interview. A High Powered Committee constituted under Section 49(2) of the M.P. Vishvavidyalaya Adhiniyam, 1973 (hereinafter referred to as 'the Act') conducted the interview on 6-5-2000. All certificates of the petitioner were examined under Section 49(4) of the Act. Eventually he was issued the letter of appointment dated 8-5-2000, Annexure P-5 to the writ petition, on the basis of the decision taken by the Executive Council.
4. At this juncture, one Dr. Santosh Yadav made a complaint to the Vice-Chancellor of the RDW about the appointment of the petitioner and the respondent No. 1 in exercise of power under Section 12(3) of the Act vide Annexure P-7 directed the Executive Council to reconsider his decision appointing the petitioner on the post of Reader of MBA Department. The Executive Council reconsidered the matter and maintained its earlier decision, as is manifest from order dated 10-6-2005. The Chancellor without considering the decision taken by the Executive Council taken on 8-5-2005 and the affirmation thereof on 10-6-2005 issued order under Section 12(4) of the Act on 11-12-2006 annulling the decisions of the Executive Council dated 8-5-2000 and affirmation thereof dated 10-6-2005 and directed the respondent University to cancel the appointment of the appellant with immediate effect and discharge him by giving him either notice or salary in lieu thereof. It is contended that though the said order was passed on 11-12-2006, the same was communicated to the appellant on 22-12-2006. He remained on casual leave upto 23-12-2006. As he had already submitted an application for leave he proceeded on leave after service of the order dated 11-12-2006 and filed Writ Petition No. 19090/2006 (S) on 23-12-2006. The matter was listed before the Vacation Judge and it was directed to be listed on 28-12-2006. On 26-12- 2006 the respondent No. 2 passed the order terminating the services of the appellant w.e.f. 23-12-2006 by giving him three months' salary in lieu of notice. It is put forth that the said order was not served on the appellant but was lying on the courtyard of his house. The appellant sought amendment in the petition assailing the order dated 26-12-2006. It was set forth that the appellant was relieved on 23-12-2006. The said order was served on him 28-12-2006. The writ petition came up for hearing on 8-1-2007 and on that day the learned Single Judge directed stay of the operation of the order passed vide Annexures P-11, P-12, dated 11-12-2006 and 26-12-2006 respectively. After the order of stay was passed the appellant submitted an application for joining but he was not allowed to resume his duty. Because of the aforesaid situation he moved an application for interim direction to command the University to obey the interim orders dated 8-1-2007 and 16-1-2007 and to allow him to resume his duty. On 31-1-2007 the matter was listed and a submission was advanced on behalf of the University that the said order could not be implemented as the appellant had been relieved. Later on the University filed a reply dated 12-2-2007. The matter was taken up on 28-2-2007 for hearing on the application for interim direction. Learned Single Judge on 28-2-2007 did not issue a direction to the University to allow the appellant to resume his duty but dispose of the application for interim direction with a direction that the respondent University shall not appoint anyone else on the post in which the appellant was working.
5. We have heard Mr. A.P. Shroti, learned Counsel for the appellant and Mr. Suyash Tripathi, learned Counsel for the respondent No. 1 and Mr. P.K. Kaurav, learned Counsel for the respondent Nos. 2 and 3.
6. It is submitted by Mr. Shroti, learned Counsel for the appellant that the learned Single Judge failed to appreciate that by virtue of orders of stay passed on 11-12-2006 and 26-12-2006 the appellant was entitled to join in the post in question as that was fundamental effect of the order of stay. It is contended by him that once the order of stay came to be passed the respondent University had no authority to deprive him to join. The submission put forth by the University that in view of the relieving order the stay order was not implement-table, is totally misconceived and the learned Single Judge should have commanded the respondent University to allow the appellant to join in his post.
7. Mr. Tripathi and Mr. Kaurav, learned Counsel appearing for the respondents submitted that when the order had already been executed and given effect to, the stay order cannot relegate the situation to its original state as the stay of an executed of the order is impermissible. It is further contended by them that language of the order of the stay has to be understood in proper perspective and if the same is done no fault can be found with the order of the learned Single Judge.
8. To appreciate the submissions raised at the Bar it is apposite to refer to the order dated 8-1-2007. The same reads as under:
Shri P.K. Kaurav, learned Counsel accepts notice on behalf of respondent No. 3.
He prays for and granted seven days time to submit a detailed return on behalf of respondent Nos. 2 and 3.
Operation of the impugned order contained in Annexures P-11 and P-12 shall remain stayed till the next date of hearing.
Shri Kaurav stated that service on respondent No. 1 is must before proceeding further.
Shri Shroti, learned Counsel for the petitioner submitted that service on respondent No. 1 has already been effected by Humdust and it must have been placed on record.
There is no affidavit in support of the covering letter.
Petitioner is directed to submit the same.
9. On 16-1-2007 learned Single Judge passed the following order:
As prayed, fix it in the next week.
I.R. Granted earlier shall remain operative till the next date of hearing.
10. On 31-1-2007 the learned Single Judge passed the following order:
Counsel for petitioner has urged that due to this direction, the termination of the petitioner would automatically be stayed and the original order of appointment would be revived since he has tried to join on the service and the respondents are preventing him from the same and the Counsel has prayed for further interim relief of being allowed to join the service.
Shri P.K. Kaurav, Advocate appearing for respondent/University has stated that he has filed the detailed return to this petition stating that the petitioner had already been relieved prior to the passing of the stay order and in that case the position of status quo ante cannot be restored unless there are specific directions from this Court. Shri N.S. Ruprah, Advocate appearing for University in the connected petition bearing Writ Petition No. 6346/2006 (S) filed by Dr. Santosh Yadav represented by Shri Manoj Sharma, Advocate and Shri J.P. Pandey, Advocate challenging the appointment of the petitioner state that the stay order is impossible to implement.
In view of above, the orders regarding status quo cannot be granted at this stage since neither the return has been tiled on behalf of the respondent/University in the other connected petition and pleadings are still not complete nor have any of the respondents filed reply to the application seeking further interim directions. At this stage, I also do not deem it fit to interfere in the order of interim relief granted to the petitioner earlier.
List after two weeks on consideration of the application. Meanwhile, the respondents may file reply to the said application No. 831/2007, if they chose to do so.
11. On 28-2-2007 the following order was passed:
Heard on I.A. No. 831/2007, which is an application for interim directions.
Counsel for petitioner has quite vehemently argued that there is an absolute stay in favour of the petitioner and the complaint of proposed intervenor Santosh Yadav has been satisfied since his appointment has been cancelled by the respondents despite which he states that the stay would become ineffective if he is not restored to his services till the decision of this petition.
Counsels for respondent Nos. 2 and 3/University submit that they are firm on their stand that the respondent/University was not in a position to implement the order of stay on the date on which it was passed and hence, status quo ante cannot be restored to the petitioner.
In view of the above, since there is an absolute stay as stated by the Counsel for the petitioner, in the interest of justice, at the most, what could be directed at this juncture is that the respondent/ University shall not appoint anybody else on the post of which the petitioner was working at the time of granting of stay dated 28-12-2006.
12. On a perusal of the aforesaid orders it is manifest that by order dated 8-1-2007, Annexure P-11 and Annexure P-12 were directed to remain stayed. Annexure P-11 is dated 11-12-2006 and Annexure P-12 is dated 26-12-2006. A free English translation of the order dated 26-12-2006 would read as under:
Order By order No. F-7-10 RAS/U.A.-2/06/1892, dated 11-12-2006 passed by the Under Secretary to the Governor, Raj Bhavan, Bhopal whereby His Excellency the Governor exercising the power conferred under Section 12(4) of the University Act, 1973 has annulled the order No. Stha./2000/555, dated 8-5-2000 appointing Dr. Kunal Kanti Majee on the post of Reader reserved for OBC category and hence, his service are being terminated with immediate effect. In lieu of the notice, three months' salary is given to him and he is discharged from the services in the afternoon on 23-12-2006.
13. Learned Single Judge directed stay of the said order on 8-1-2007. Submission of Mr. Shroti is that once the said order was stayed, status quo ante would emerge and the appellant should be deemed to be in service for all purposes. Mr. Tripathi and Mr. Kaurav, per contra, in their turn would submit that the order had already been given effect to and the appellant was relieved and by an order of stay the executed order would not become totally extinct to confer the benefit on the appellant.
14. Learned Counsel has placed reliance on the decision rendered in the case of Navjot Singh Sidhu v. State of Punjab and Anr. 2007 AIR SCW 787. In the said case Their Lordships referred to Sub-section (1) of Section 389 of the Code of Criminal Procedure and after referring to the decisions rendered in the case of Rama Narang v. Ramesh Narang and Ors. and Ravi Kant S. Patil v. Sarvabhouma S. Bagali 2006(1) JT (SC) 578, expressed the view as under:
...The legal position is, therefore, clear that an Appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the Appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be restored to in rare cases depending upon the special facts of the case.
4. In present case the appellant has sought the stay or suspension of the order of conviction passed against him by the High Court on the ground that he was a sitting Member of Parliament on the date of the conviction and though he would not have incurred any disqualification and could have continued to remain as Member of Parliament by merely filing an appeal within three months and the protection would have enured to his benefit till the decision of the appeal but in order to set high standards in public life he immediately resigned from the membership of the Lok Sabha. He now wants to seek a fresh mandate from the electorate and wants to contest the election for membership of the Lok Sabha which is due to take place shortly on account of his resignation. Keeping in view the said fact the present application needs consideration.
15. In Public Services Tribunal Bar Association v. State of U.P. and Anr. , the Apex Court was dealing with the constitutional validity of various provisions of U.P. Public Services (Tribunals) Act, 1976. Mr. Shroti has placed immense emphasis on Paragraph 41 of the said judgment which reads as under:
41. Sub-sections (5-B) ad (5-C) are not arbitrary as contended by the Counsel for the appellant as this Court in earlier cases has taken the view that orders of suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant normally should not be interfered with at an interim stage as the employee can be suitably compensated in case the order of suspension, dismissal, removal etc. is found not to be in order. The cases in which the operation of orders of dismissal, removal, termination etc. is stayed by way of an interim order and is later on upheld at the final stage then it results in wrong usurpation of the office by the employee during the operation of the interim order. This act becomes the irreversible and the employer cannot be suitably compensated by moulding the relief at the final stage. In an extreme and rare case where the order is prima facie on the face of it malafide or bad in law then it is open to a public servant to approach the High Court by filing a writ petition under Article 226 of the Constitution of India for stay of such an order. The employee is not left without any remedy. In an extreme and rare case an employee is to approach the High Court for interim relief resulting in some extra expense by itself is no reason to strike down Sub-section (5-B), being arbitrary and violative of Articles 14 and 16 of the Constitution of India.
16. In Mata Pher Pandey and Anr. v. State of U.P. and Ors. 1994 Supp. (3) SCC 273, Their Lordships of the Apex Court in Paragraph 11 taking note of the interim order passed by the High Court and final order directed in Paragraph 12 as under:
...While, therefore, we direct that he should be reinstated in service within four weeks from today and should be given continuity in service for all purposes, we direct that he should be paid a sum of Rupees one lakh and five thousand in lieu of all arrears of his salary and the costs of this appeal....
17. At this juncture, we must make it clear that on a careful reading of the aforesaid decisions we are of the considered opinion that the same do not apply to the case at hand. In this context, we may refer with profit to a two-Judge decision of the Apex Court rendered in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association, Madras , wherein Their Lordships in Paragraph 10 while dealing with the effect of interim order expressed the opinion on the following terms:
...While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing OSA No. 16 of 1991 filed by the appellant company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant Company. The said appeal, therefore, fails and is liable to be dismissed.
18. If the ratio decidendi of the aforesaid decisions are appropriately understood, it is clear as noon day that there is a subtle distinction between quashment of an order and stay of an order. Quashing of an order results in restoration of original position as is understood, on the day of the passing of the order which has been quashed. The stay of operation of an order does not ensue in the said result. It only means that the order that has been stayed would not be effective and operative from the date of passing of the stay order. An order of stay, as is luminescent, becomes effective from the time of its passing. If an order has already been executed, because the same is stayed, that does not mean that status quo ante comes into existence. The doctrine of relation back does not come into play to an executed order. The matter would have been different, had a mandatory order been passed. That is not the case. It is the date of the order which is of immense signification. If the order dated 8-1-2007 is scanned it is perceptible that the learned Single Judge had directed stay of operation of the impugned orders contained in Annexures P-11 and P-12. If the factual matrix is scrutinized, the same were passed much earlier and had become operative. An order which has become operative and been given effect to or executed, does not get wiped off by an order of stay passed on a later date. There cannot be restoration of the earlier position.
19. In view of the aforesaid analysis, the submissions put forth by Mr. Shroti are quite spacious and we are not persuaded to accept the same. Thus, the inevitable result is dismissal of the writ appeal which we direct. There shall be no order as to costs.