Allahabad High Court
Sachin Kumar Singh vs State Of U.P. Thru. Addl. Chief ... on 11 April, 2023
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 A.F.R. Case :- WRIT - A No. - 2755 of 2023 Petitioner :- Sachin Kumar Singh Respondent :- State Of U.P. Thru. Addl. Chief Secy./Prin. Secy. Deptt. Appointment, U.P. Lko. And 4 Others Counsel for Petitioner :- Gaurav Mehrotra,Anant Khanna,Harsh Vardhan Mehrotra Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi,Lalta Prasad Misra,Rajesh Tewari Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Om Prakash Shukla,J.
1. Heard Shri Gaurav Mehrotra, learned counsel representing the petitioner, learned State Counsel representing the respondent nos.1 and 4, Shri S.K. Kalia, learned Senior Advocate assisted by Shri Rajesh Tiwari for the respondent no.2, Shri L.P. Misra, leaned counsel representing the respondent no.3 and Shri Atul Dwivedi, learned counsel representing the respondent no.5.
2. Proceedings of this petition have been instituted under Article 226 of the Constitution of India assailing the order dated 24.03.2022 passed by the Chancellor of Dr. A.P.J. Abdul Kalam Technical University, Uttar Pradesh, Lucknow (hereinafter referred to as ' the Chancellor'), whereby the petitioner, who was appointed as Registrar of the said University, has been placed under suspension.
Another order which is under challenge in this writ petition is dated 31.03.2023 passed by the Chancellor constituting a three member inquiry committee for inquiring into the alleged misconduct of the petitioner while working as Registrar of the University.
3. It has been argued by Shri Gaurav Mehrotra that the petitioner is a member of Provincial Civil Services and the conditions of his service including disciplinary matters are governed by the provisions contained in the rules made under Article 309 of the Constitution of India, namely, the Uttar Pradesh Civil Service (Executive Branch) Rules, 1982 (hereinafter referred to as 'Rules 1982') and Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to 'Rules 1999'). It has been argued further by Shri Mehrotra that under the Rules 1982, the appointing authority of the petitioner is Hon'ble the Governor and in terms of the Uttar Pradesh Rules of Business, 1975 framed under Article 166 (3) of the Constitution of India, matters relating to disciplinary action etc. of the members of Provincial Civil Service has to go up to Hon'ble the Chief Minister for approval and, accordingly, the Chancellor, not being his appointing authority, is not empowered either to place him under suspension or to constitute any inquiry committee.
4. It has also been argued by the learned counsel for the petitioner that suspension of a government servant can be resorted to in accordance with the provisions contained in Rule 4 of Rules 1999, according to which a government servant can be placed under suspension only at the discretion of the appointing authority and not at the instance of any other authority. His further submission is that disciplinary proceedings under Rules 1999 can be instituted only by the disciplinary authority and not by any other authority. His submission, thus, is that since the Chancellor of the University is not the appointing authority or the disciplinary authority of the petitioner, the order of suspension and the order constituting the inquiry committee, which are under challenge in this writ petition, are completely without jurisdiction.
5. It has further been argued by Shri Mehrotra that the petitioner's appointment as Registrar in the University was made on deputation and as per well settled service jurisprudence governing the disciplinary action against a deputationist, it is the parent department which is empowered to initiate disciplinary proceeding even in a case where the deputationist is said to have misconducted himself while working with the borrowing department. In this view, the submission is that even if the petitioner, who has been working as Registrar in the University which is the borrowing department, was found to have misconducted himself while discharging his functions as Registrar of the University, the authorities of the University including the Chancellor could have apprised the said alleged misconduct on the part of the petitioner to the State Government which is the parent department of the petitioner and it is only in the discretion of the State Government any disciplinary proceeding could have been instituted. In such a view, the submission is that both the orders, i.e. the order of suspension and the order constituting the disciplinary inquiry committee passed by the Chancellor are completely without jurisdiction and, hence are not sustainable.
6. Per contra, Shri S.K. Kalia, learned Senior Advocate representing the Chancellor has submitted that as a matter of fact though the appointment of the petitioner is on deputation in the University as Registrar, however, such appointment on deputation is not to be construed as appointment on deputation in the usual sense of the phrase "appointment on deputation" for the reason that appointment of Registrar in the University is contemplated under the Uttar Pradesh Technical University Act, 2000 (hereinafter referred to as 'University Act 2000') and accordingly his appointment is to be governed by the provisions of the said Act. Drawing our attention to the provisions contained in Section 7 of the University Act 2000, it has been argued by learned Senior Advocate that the Registrar of the University is an officer of the University in terms of Section 7 (e) and further that the Chancellor, in respect of the University, exercises his authority and power as vested in him under Section 8.
7. According to the learned Senior Advocate sub-section (4) of Section 8 of the University Act, 2000 provides that the Chancellor shall have such other powers as may be conferred on him by or under the Act or the Regulations framed under the said enactment. Our attention has also been drawn to Regulation 2.03 and 2.04 of the Regulations of the University, 2010 which fall in Chapter 2 and deal with the officers of the University. According to the Senior Advocate, Regulation 2.03 clearly empowers the Chancellor to remove any officer (as defined and enlisted in Section 7 of the University Act, 2000) after forming an opinion that the officer concerned has either willfully omitted or has refused to carry out the provisions of University Act, 2000 or he has abused the power vested in him. The emphasis by learned Senior Advocate is on the words "after making such inquiry" occurring in Regulation 2.03 and accordingly it has been stated that removal of an officer of the University by the Chancellor can be made after such inquiry as is thought proper by the Chancellor. He has further stated that in a situation where the appointing authority of such an officer as defined in Section 7 of the University Act, 2000 is Chancellor himself, he can remove the officer by passing an order to that effect and in a situation where the appointing authority of an officer of the University is the State Government, the Chancellor can direct the State Government to remove the officer concerned.
8. We have also been taken to the provisions contained in Regulation 2.04 of the Regulations, according to which the Chancellor possesses the power to suspend such an officer of the University during pendency or in contemplation of any inquiry referred to in Regulation 2.03. On the aforesaid submissions, it has been argued by the learned Senior Advocate representing Hon'ble the Chancellor that the submission of learned counsel for the petitioner that the Chancellor does not have any jurisdiction or authority or power to place the petitioner under suspension or to constitute an inquiry committee is absolutely misconceived for the reason that Chancellor has been vested with adequate authority not only to pass an order of suspension but also to constitute an inquiry committee in relation to an officer of the University as defined in Section 7 of the University Act, 2000.
9. The arguments made by learned Senior Advocate on behalf of the Chancellor has been reiterated by Dr. L.P. Misra representing the respondent no.3 and Shri Atul Dwivedi learned counsel representing the respondent no.5.
10. We have considered the rival submissions made by learned counsel representing the respective parties and have also perused the records available before us on this writ petition. We have also extensively gone through various statutory provisions contained in Act 2000, the Regulation framed under Act 2000, Rules 1982 and Rules, 1999.
11. The question which falls for our consideration in this case is as to whether Chancellor has been vested with any lawful authority to place an officer of the University under suspension and to constitute an inquiry committee for inquiring into the alleged misconduct on the part of the officer of the University concerned.
12. It is not in dispute that in terms of provisions contained in Section 7(e) of the University Act, 2000, Registrar is one of the officers of the University along with the Chancellor, the Vice-Chancellor, the Pro-Vice-Chancellor, the Finance Officer and the Controller of Examination. Section 7 of the University Act, 2000 is extracted hereinbelow :-
"7. The following shall be the officers of the University-
(a) the Chancellor;
(b) the Vice-Chancellor;
(c) the Pro-Vice-Chancellor;
(d) the Finance Officer;
(e) the Registrar;
(f) the Controller of Examination;
(g) such other officers of the University as may be declared by the regulations to be the officers of the University."
13. The Chancellor, under the University Act, 2000 has been defined in Section 8, according to which the Hon'ble Governor of the State is the Chancellor of the University. It further provides that the Chancellor by virtue of his office shall be the Head of the University. Certain powers have been vested in the Chancellor by Section 8 of the University Act, 2000. Section 8 of the University Act, 2000 reads as under :-
"8. (1) The Governor shall be the Chancellor of the University. He shall by virtue of his office, be the head of the University and shall, when present, preside at any convocation of the University.
(2) Every proposal for the conferment of an honorary degree shall be subject to the confirmation of the Chancellor.
(3) It shall be the duty of the Vice-Chancellor to furnish such information or records relating to the administration of the affairs of the University as the Chancellor may call for.
(4) The Chancellor shall have such other powers as may be conferred on him by or under this Act or the Regulations."
14. As per the aforequoted provision contained in sub-section (4) of Section 8, Chancellor exercises such powers as are conferred on him by or under the University Act, 2000 or by the Regulations framed under the said enactment. So far as conferment of powers under the Act is concerned, the Chancellor has been vested with the authority for confirming every proposal for conferment of an honorary degree and to call for records and information from the office of the Vice Chancellor of the University. In terms of sub regulation (4) of Regulation 8, Chancellor, as observed above, can exercise such powers which are conferred on him by or under the Regulations. Regulations 2.03 and 2.04 of the Regulations framed under the Gautam Buddh Technical University, 2010 are relevant which are extracted hereinbelow :-
"2.03 If in the opinion of the Chancellor, the Vice-Chancellor or any other Officer of the University willfully omits or refuses to carry out the provisions of the Act, or abuses the powers vested in him and if it appears to the Chancellor that the continuance of such officer in the office is detrimental to the interests of the University, the Chancellor may, after making such inquiry as he deems proper, by order, remove the said Officer in cases where he himself is the appointing authority or where the State Government is the appointing authority, direct such authority to remove the Officers.
2.04 The Chancellor shall have power to suspend such Officer during the pendency or in contemplation of any enquiry referred to in regulation 2.03."
15. When we peruse the aforequoted provisions contained in Regulation 2.03 what we find is that in a situation where the Vice Chancellor or any other officer of the University (including the Registrar of the University as well) is found willfully omitting or refusing to carry out the provisions of University Act, 2000 or he is found to have misused the powers vested in him or if it appears to the Chancellor that continuance of such officer in the University is detrimental to the interests of the University, the Chancellor has been vested with ample powers to remove such an officer. In a case where the Chancellor himself is the appointing authority he can pass the order removing the officer concerned himself, however, where the State Government is the appointing authority, the Chancellor can direct such authority to remove the officer concerned.
16. Regulation 2.04 provides that the Chancellor will have power to suspend such officer during the pendency or in contemplation of inquiry under Regulation 2.03. We may notice at this juncture that any removal of an officer of the University is permissible under Regulation 2.03 only after making an inquiry as may be thought proper by the Chancellor and only once the Chancellor forms an opinion about the misconduct, as detailed in Regulation 2.03, of the officer concerned. Thus, removal of an officer of the University is not permissible without an inquiry which may be thought appropriate to be conducted by the Chancellor. Regulation 2.04 has to be read in conjunction with Regulation 2.03 which provides that in a situation where any inquiry envisaged under regulation 2.03 is either pending or is in contemplation, the Chancellor in his discretion can suspend the officer of the University against whom the inquiry is pending or is in contemplation.
17. Accordingly, we are of the opinion that in respect of an officer of the University as defined in Section 7 of the University Act, 2000, the Chancellor has been vested with the authority to place the officer of the University concerned, in certain circumstances, under suspension and the Chancellor is also empowered to order for an inquiry which may be thought proper for ascertaining as to whether the officer of the University concerned has misconducted himself within the meaning of 'misconduct' as given in Regulation 2.03 of the Regulations.
18. We may further notice that the Registrar of the University is appointed by the State Government on such terms and conditions as may be prescribed. Section 13 of the University Act, 2000 clearly states that Registrar shall be a full time officer of the University and shall be appointed by the State Government. Section 13 of the University Act, 2000 is extracted hereinbelow:-
"13. (1) The Registrar shall be a whole-time officer of the University.
(2) The Registrar shall be appointed by the State Government such terms and conditions as may be prescribed.
(3) The Registrar shall have the power to authenticate records on behalf of the University.
(4) The Registrar shall be responsible for the due custody of the records and the common seal of the University. He shall be ex-officio Secretary of the Executive Council and shall be bound to place before the Executive Council all such information as may be necessary for transaction of its business. He shall also perform such other duties as may be prescribed or required from time to time, by the Executive Council or the Vice-Chancellor but he shall not, by virtue of this sub-section, be entitled to vote.
(5) The Registrar shall not be offered nor shall he accept any remuneration for any work in the University save such as may be provided by the Regulations."
19. Apart from Section 13 of the University Act, 2000, we may also extract Regulation 2.21 of the Regulations, according to which the Registrar is to be appointed by the State Government on deputation from amongst the members of the Uttar Pradesh Civil Service (Executive Branch). It further provides that in case the office of Registrar is vacant and Registrar is on leave or in a certain other circumstances, the duties of the office of Registrar shall be performed by such person as the Vice Chancellor may appoint for the purpose. The amended Regulation 2.21 of the Regulations is quoted hereinunder:-
"Registrar will be appointed by the State Government on deputation from Uttar Pradesh Civil (Executive Branch) Service. When the office of the Registrar is vacant or when the Registrar is on leave by reasons of illness, absence or due to any other cause is unable to perform the duties of his office, the duties of the office of Registrar shall be performed by such person as the Vice-Chancellor may appoint for the purpose."
20. We may also refer to the provisions contained in Regulation 14.03 which provides that government servants serving the University on deputation shall remain subject to the Government leave rules.
21. Accordingly, as per the scheme of the Act 2000 and the Regulations framed thereunder, though appointment of the Registrar in the University is on deputation, however, this deputation cannot be termed to be a "deputation" in the traditional sense of the word in which it is generally understood inasmuch as the consent of the University, that of the deputationist and the State Government for placing a member of Provincial Civil Service as Registrar in the University is not required. It is the authority available to the State Government under Section 13 to appoint a member of Provincial Civil Service as Registrar of the University. Accordingly, the general rules or law relating to a deputationist in the matter of disciplinary proceedings will have no application in this case. The State Government under Section 13 places its officer on deputation with a University, however, while he remains posted or placed in the University, he is subject to certain supervision and control of the Chancellor under the Act 2000. One of the supervisions as envisaged under the Regulations read with section 8 of the University Act, 2000 is the proceeding which may be initiated for removal of the Registrar from the University.
22. As already discussed above, we are of the considered opinion that Regulation 2.03 read with Regulation 2.04 empowers the Chancellor to initiate action for removal of the Registrar from his office from the University and in that process, it is not only that Chancellor can order for any inquiry, but he can also place the Registrar under suspension.
23. In the aforesaid view of the matter, we are not convinced by the submissions made by learned Counsel for the petitioner that the order of suspension and the order constituting the inquiry against the petitioner in this case is without jurisdiction.
24. However, we may clarify certain aspects which have cropped up during the course of arguments. As already discussed above, the proceeding as contemplated in Regulation 2.03 read with Regulation 2.04 are in relation to removal of an officer of the University as defined in Section 7 and that would mean that Chancellor can initiate the proceedings only in respect of his removal from the office of Registrar of the University and not for his removal or for effecting any punishment as a Government servant for which it is only the appointing authority of the petitioner as a Government servant, i.e. the State Government who can take action and pass appropriate orders.
25. Having observed as above, we also find that there may be a situation where a Registrar appointed in the University by the State Government is found indulging in gross misconduct and in such a situation it is not that he shall be immune for any such misconduct, however, it is not the Chancellor rather the State Government which is empowered and which will have jurisdiction to take action if it is so warranted in the facts of particular case.
26. Learned counsel for the petitioner at this juncture submits that the petitioner does not have desire any more to continue to remain posted in the University and once the order of suspension was passed and charge of the post of Registrar of the University, by means of an order dated 25.03.2023 passed by Vice Chancellor, was taken over from him and handed over to another officer, he approached the State Government with the prayer to treat the order dated 25.03.2023 as the order of his repatriation to the State Government and accordingly it has been prayed that he may be ordered to be placed at the disposal of the State Government.
27. So far as the aforesaid submission and prayer made by the learned counsel for the petitioner is concerned, we at this juncture are not in a position to deal with any such prayer for the reason that in the writ petition no such prayer has been made. It is, in fact a matter between the petitioner and the State Government. We thus observe that we have not considered this prayer on merits at this juncture.
28. For the reasons aforesaid, we do not find ourselves to be in agreement with the submissions and arguments made by the learned counsel for the petitioner and thus are not persuaded to interfere with the order of suspension and the order appointing enquiry committee which are impugned in the writ petition.
29. The writ petition is, thus, dismissed.
30. However, we may direct that the time period as contemplated in the order passed by Hon'ble the Chancellor for completion of the inquiry against the petitioner, i.e. period of three months shall be strictly adhered to. In case the inquiry is not completed within the aforesaid period, it will be open to the petitioner to approach the Court. The petitioner shall, however, co-operate with the inquiry.
31. No order as to costs.
Order Date :- 11.04.2023 Anand Sri./-