Madhya Pradesh High Court
Rani Durgawati Vishwavidyalaya vs Dr. Kunal Kant Majee on 24 August, 2020
Author: Sanjay Yadav
Bench: Sanjay Yadav
1 W.A.No.613/2020
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
Hearing through Video Conferencing
Writ Appeal No.613/2020
Rani Durgawati Vishwavidyalaya, Jabalpur & others
vs.
Dr. Kunal Kanti Majee
_________________________________________________________
Shri Shreyash Pandit, learned counsel for the appellants.
Shri Amalpushp Shroti, learned counsel for respondent.
________________________________________________________
CORAM:
Hon'ble Shri Justice Sanjay Yadav.
Hon'ble Shri Justice B. K. Shrivastava.
_________________________________________________________
ORDER
Jabalpur, dated : 24.08.2020 Per: Sanjay Yadav, J.
This Appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against the order dated 19.03.2020 passed in Writ Petition No.19090/2006.
2. The said writ petition was directed against the orders dated 11.12.2006 and 26.12.2006.
3. Whereas, the order dated 11.12.2006 was by Hon'ble Governor of Madhya Pradesh as Kuladhipati of the University in exercise of the 2 W.A.No.613/2020 powers under sub-Section (4) of Section 12 of Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 (referred as 'Adhiniyam 1973') whereby the resolution dated 08.05.2000 by the Executive Committee as to appointment of respondent on the post of Reader, in Management Faculty and the consequential order of affirmation dated 10.06.2005 was annulled. The impugned order dated 26.12.2006 was consequential order passed by the University removing the respondent (referred as 'Petitioner') from service.
4. Relevant facts briefly are that the Appellant Rani Durgawati Vishwavidyalaya published an advertisement on 19.02.1999 inviting applications for the post of Professor and Reader in various faculty. For the Management Faculty, which we are presently concerned with, applications were invited to fill up two posts of Reader, reserved each for the candidates belonging to Other Backward Class and the Scheduled Tribe. The petitioner had two certificates issued by the Sub- Divisional Officer, Jamtada, District Dumka, State of Bihar. One issued on 29.06.1995, certifying him as belonging to Other Backward Class i.e. Karmakar (Lohar) of District Dumka, Bihar and the second issued on 24.02.1996 certifying the petitioner belonging to Scheduled Tribe. The caste certificate issued on 24.02.1996 was provisional and was subjected to the decision in SLP (C) No.1569/1994 (Nityanand Sharma & another vs. State of Bihar & ors.) which was decided on 02.02.1996 (reported in AIR 1996 SC 2306); wherein it was held:
"14. It is for Parliament to amend the law and the Schedule and include in and exclude from the Schedule, a tribe or tribal community or part of or group within any tribe or tribal community for the State, District or region and its declaration is conclusive. The Court has no power 3 W.A.No.613/2020 to declare synonyms as equivalent to the Tribes specified in the Order or include in or substitute any caste/tribe etc. It would thus be clear that for the purpose of the Constitution, "Scheduled Tribes" defined under Article 366(25) as substituted (sic) under the Act, and the Second Schedule thereunder are conclusive. Though evidence may be admissible to a limited extent of finding out whether the community which claims the status as Scheduled Caste or Scheduled Tribe, was, in fact, included in the Schedule concerned, the Court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a Scheduled Caste or Scheduled Tribe or parts thereof or group of such caste or tribe.
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19. Accordingly, we hold that Lohars are an Other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar High Court, is erroneous. It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes. They are blacksmiths. We approve the said view laying down the correct law."
5. Be that as it may, the petitioner on the strength of the Certificate of Other Backward Class in the State of Bihar applied for the post of Reader in Management Faculty against the post reserved for Other Backward Class. The letter of appointment was issued on 08.05.2000 on the basis of the decision taken by the Executive Council. That complaint was lodged by one Dr. Santosh Yadav with the Chancellor that the petitioner is wrongly appointed on the post of Reader reserved 4 W.A.No.613/2020 for OBC; whereas, he has been working as Lecturer in Dr. Harisingh Gaur University, appointed therein as Scheduled Tribe. On report being sought from the Vishwavidyalaya, the University vide its letter dated 27.12.2001 replied that since the caste of the petitioner in State of Bihar is recoginzed as Other Backward Class, his appointment was proper. The mater was further examined by the Chancellor whereon it was found that in the State of Madhya Pradesh the Other Backward Class in category of creamy layer were not entitled for the reservation as per Circular dated 05.04.1997. And that the person belonging to Scheduled Tribe/Scheduled Caste or Other Backward Class of other State is not entitled for the benefit in the State where he migrates. Notice was accordingly issued under sub-Section (3) of Section 12 of Adhiniyam to the Executive Council for reconsidering their decision of giving appointment to the petitioner on 08.05.2005. As the Executive Council declined to recall their decision, the Chancellor on the following findings called upon the Executive Council vide show cause notice dated 08.08.2005 as to why the resolution dated 08.05.2000 be not annulled. The show cause notice as evident was in exercise of powers under Section 12(4) of Adhiniyam, the operative part of the show cause is extracted for ready reference:
**¼8½ mijksDr rF;ksa rFkk fof/kd fLFkfr ls ;g Li"V gS fd MkW- dq.kky dkafr ek¡>h dks e/;izns'k jkT; esa vkjf{kr oxZ dk ykHk ysus dh ik=rk u gksrs gq;s Hkh mUgksaus lkxj fo'ofo|ky; ,oa tcyiqj fo'ofo|ky; esa Øek'k% ysDpjj ,oa jhMj ds vuqlwfpr tutkfr ,oa vU; fiNM+k oxZ ds fy;s vkjf{kr inksa ij fu;qfDr;k¡ izkIr dhA ;gh ugha lkxj fo'ofo|ky; esa vuqlwfpr tutkfr ds vkjf{kr ij dk ykHk bl rF; dks Nqikdj fy;k tkuk Hkh izrhr gksrk gS] fd fcgkj ljdkj }kjk mudk vuqlwfpr tutkfr dk izek.k&i= fujLr fd;k 5 W.A.No.613/2020 tk pqdk Fkk rFkk fu;qfDr ds dkQh le; iwoZ mUgksaus vU; fiNM+k oxZ dk tkfr izek.k&i= Hkh izkIr dj fy;k FkkA ¼9½ bl lfpoky; ds Kki Øekad 944@jkl@;w-,&2@2005] fnukad 30-05-05 ds funZs'kksa ds ifjis{; esa dk;Zifj"kn dh cSBd fnukad 10-06-2005 ds in Øekad 3 esa MkW- ds-ds- ek¡>h dh fo'ofo| ky; ,e-ch-,- foHkkx esa jhMj ds in ij vU; fiNMk oxZ ds fy, vkjf{kr in ij fu;qfDRk dh dk;Zifj"kn dh cSBd fnukad 08-05-2000 esa fy, x, fu.kZ; dh iqu% iqf"V dj nh xbZA MkW- ek¡>h dks vU; fiNM+k oxZ ds fy, vkjf{kr in ds fo:) fu;qfDRk dh ik=rk u gksus ds laca/k esa Åij df.Mdk 2 ls 8 rd esa fudkys x;s fu"d'kksZa ij dk;Zifj"kn~ }kjk dksbZ ijh{k.k ugha fd;k x;k gSA blls Li"V gS fd dk;Zikfj"kn mlds }kjk iwoZ esa dh xbZ vfu;ferrk dks tkjh j[kus dgh ea'kk j[krh gSA ¼10½ vr% mijksDr of.kZr dkj.kksa ds vk/kkj ij egkefge dqykf/kifrth us e/;izns'k fo'ofo|ky; vf/kfu;e] 1973 dh /kkjk 12¼4½ ds rgr iznRr 'kfDr;ksa dk iz;ksx djrs gq, fo'ofo|ky; dh dk;Zifj"kn dks ;g dkj.k crkvks lwpuk i= tkjh djus dk funsZ'k fn;k gS fd D;ksa u dk;Zifj"kn dh vkikfrd cSBd fnukad 08-05-2000 ds dk;Zokgh fooj.k ds fcanq Øekad ¼1½¼1½¼2½ esa O;olk; iz'kklu foHkkx esa mikpk;Z ds in ij MkW- dq.kky dkafr ek¡>h dh vU; fiNM+k oxZ ds fy, vkjf{kr in ij fu;qfDr fd;s tus rFkk cSBd fnukad 10@06@05 ds in Øekad 3 esa mDr voS/kfud fu;qfDr ds laca/k esa dk;Zifj"kn ds iwoZ fu.kZ; dh iqf"V fd;s tkus laca/kh fu.kZ; dks okfry ¼Annul½ fd;k tk,A ¼11½ vr% fuosnu gS fd egkefge dqyf/kifr ds funsZ'kksZ ls dk;Zifj"kn dks lalwfpr dj bl **dkj.k crkvks lwpuk i=** dk mRrj fnukad 9 flrEcj] 2005 rd vfuok;Zr% bl lfpoky; dks fHktkok,¡A ;g Hkh fuosnu gS fd mifjof.kZr rF;ksa ds izdk'k esa izkd``frd U;k; ds fl)kUr dk ikyu djrs gq, MkW- dq.kky dkafr ek¡>h dks viuk i{k j[kus ds fy, ;qfDr;qDr le;@volj Hkh iznku fd;k tkosA fu;r le;kof/k esa mRrj izkIr u gksus dh n'kk esa ;g ekuk tkosxk fd dk;Zikfj"kn dks bl izdj.k esa dqN ugha dguk gS rFkk izdj.k esa ,drjQk fu.kZ; fy;k tkosxkA** 6 W.A.No.613/2020
6. The petitioner was also served with the said show cause notice on 16.08.2005; whereby, petitioner's response was sought.
7. After considering the reply and response of the Executive Council and the petitioner, by order dated 11.12.2006 the resolution dated 08.05.2000 was annulled and by order dated 26.12.2006, petitioner's services were dispensed with.
8. The order dated 11.12.2006 passed by the Chancellor and the consequential order dated 26.12.2006 was questioned by the petitioner in subject Writ Petition mainly on the grounds, firstly, that the Chancellor had no authority in law to usurp the powers of Executive Council conferred upon it under Section 49 of Adhiniyam 1973 and secondly, that the University was well within its right in extending the benefits of Petitioner being Other Backward Class in the State of Bihar. The University, however, denied these contentions.
9. Learned Single Judge framed following two issues:
1. Whether the Chancellor has power under Section 12(4) of the Madhya Pradesh Vishwavidhyalaya Adhiniyam, 1973 to set aside the appointment of the petitioner and to annul the proceedings of the Executive Council of the University.
2. Whether petitioner is O.B.C. in the State of Madhya Pradesh when he is declared O.B.C. in the State of Bihar."
10. The issue No.2 however has been left unanswered and rightly so, which is fairly admitted by learned counsel for the petitioner in the light of the decision in Marri Chandra Shekhar Rao vs. Dean, Geth G.S.Medical College & others (1990) 3 SCC 130, Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled 7 W.A.No.613/2020 Tribes in the State of Maharashtra and another vs. Union of India & another (1994) 5 SCC 244 and Bir Singh vs. Delhi Jal Board and others (2018) 10 SCC 312, wherein it is held that a person belonging to Scheduled Castes/Scheduled Tribes in relation to his original State of which he is a permanent or ordinary resident, cannot be deemed to be so in relation to any other State on his migration to that State for the purpose of employment, education etc. Similarly, in M.C.D. vs Veena & others (2001) 6 SCC 571, it is held in relation to Backward Classes that the migrants are not entitled for reservation as Other Backward Classes in the States/Union Territories where they have migrated.
11. In view whereof, as the judgment under question does not dwell upon the issue as to whether the petitioner, an Other Backward Class in the state of Bihar is entitled for reservation in the State of Madhya Pradesh where he migrated, we therefore, refrain from examining the same. Rather, the issue is no more res integra as noted supra.
12. But the issue that a migrant Other Backward Class is not entitled for the reservation in migrated State has a bearing in respect of the exercise of powers by the Chancellor under sub-Section (4) of Section 12 of the Adhiniyam, 1973.
13. Section 12 of the Adhiniyam 1973 stipulates :
"12. Kuladhipati and his powers. - (1) The Governor of the Madhya Pradesh shall be the Kuladhipati of University.
(2) The Kuladhipati shall, by virtue of his office, be the Head of the University and the President of the Court and shall, when present preside at meetings of the Court and at any convocation of the University.
(3) The Kuladhipati may,-8 W.A.No.613/2020
(a) call for any papers or information relating to the affairs of the University; and
(b) for reasons to be recorded, refer any matter except a matter falling under Section 55 for reconsideration to any officer or authority of the University that has previously considered such matter.
(4) The Kuladhipati may, by an order in writing, annul,-
(a) any proceedings [xxx] of any officer, authority, Committee or body of the University, constituted by or under this Act, which is not in conformity with this Act, the Statutes, Ordinances or the Regulations;
or
(b) any proceedings of any authority, Committee or other body which has been referred to him by the Kulpati under sub-section (7) of Section 15, if he is satisfied that such proceedings are prejudicial to the interests of the University :
Provided that before making such order he shall call upon the officer, authority, committee or body concerned to show cause why such an order should not be made and if any cause is shown within the time specified by him in this behalf he shall consider the same.
[(4-A) Where the Kuladhipati passes an order annulling the proceedings under sub-section (4), he may make such subsequent order in relation thereto in conformity with this Act, Rules, Statutes, Ordinances or Regulations as he may deem fit in the interest of the University and the order so made shall be final.] (5) Every proposal to confer an honorary degree shall be subject to the confirmation of the Kuladhipati.9 W.A.No.613/2020
(6) The Kuladhipati shall exercise such powers as may be conferred on him by or under this Act."
14. Careful reading of sub-Section (4) of Section 12 reveals that the Chancellor, in case where any proceedings of any officer, authority, Committee or body of the University, constituted by or under the Adhiniyam 1973 is not in conformity with the Adhiniyam, Statutes, Ordinances or the Regulations, has the power to annul the same. These powers, to annul any proceedings of any officer, authority, committee or body of the University, in our considered opinion, is absolute in nature, except that certain procedural requirement as find mention in sub-Section (3) and proviso to sub-Section (4) of Section 12 of the Adhiniyam 1973. We are further fortified in our view that the power of the Chancellor to annul any decision is absolute in nature by the stipulation contained under sub-Section (4-A) of Section 12 which was inserted w.e.f. 18.11.1980 vide M.P.Act No.19 of 1980.
15. Reading of impugned order reveals that learned Single Judge has subjected the powers conferred on the Chancellor under sub-Section (4) of Section 12 of Adhiniyam 1973 to sub-Section (7) of Section 15. Learned Single Judge observed:
"7. ... On a bare perusal of sub-Section (4) of Section 12 of the Adhiniyam, 1973, it is clear that the Chancellor can annul the proceeding which is not in conformity with the Act, the Statues, Ordinances or the Regulations or the proceeding which has been referred to him by the Kulpati under sub-Section (7) of Section 15 of the Adhiniyam, 1973, if he is satisfied that such proceeding is prejudicial to the interest of the University. But here in this case, as per counsel for the petitioner, no proceeding was ever referred to the Chancellor by the Kulpati as per the requirement of sub-Section (7) of Section 15 of the 10 W.A.No.613/2020 Adhiniyam, 1973 and secondly, from the order impugned Annexue-P/11, it is not clear as to how, the proceeding of the Executive Council held on 08.08.2005 was not in conformity with the Act, the Statutes, the Ordinances or the Regulations. ... "
16. These observations and findings percolated in the order which led learned Single Judge to further observe that the Executive Council being the authority empowered to recommend appointment, the decision of the Chancellor was required to be placed before Executive Council for its approval. Learned Single Judge observed :
"8. ... Admittedly, the decision of the Chancellor was never placed before the Executive Council for its approval and as the petitioner was appointed by the Executive Council, therefore, his services could have been terminated by the Executive Council only. The order of termination of the services of the petitioner was issued by the Vice- Chancellor on 26.12.2006 that too in pursuance to the decision taken by the Chancellor on 11.12.2006, therefore, the decision for terminating the services of the petitioner passed by the Vice-Chancellor is an order issued by an Incompetent Authority. The order issued by the Chancellor exercising power provided under sub-Section (4) of Section 12 of the Adhiniyam, 1973 is also unreasonable, unjustified and that does not fulfil the requirement of section under which such power could be exercised. ... "
17. We respectfully disagree with the reasonings of the learned Single Judge while interpreting the provisions of Section 12 of the Adhiniyam, 1973 by subjecting it to the stipulation contained in Section 15, Section 24(xxxii) and Section 49 of the Adhiniyam, 1973. Learned Single Judge glossed over the fact that the provisions of Section 15, 24(xxxii) and 49 operates in different fields and does not 11 W.A.No.613/2020 override the absolute powers conferred in the Chancellor by the Legislature. The fact that the Vice-Chancellor, Executive Council being the creature of law, their action has been subjected to the powers to be exercised by the Chancellor. Thus, where the Chancellor as in the case at hand, found that an incumbent i.e. the petitioner who was not entitled to be considered for appointment on the post of Reader in Management Faculty reserved for the Other Backward Class was justified in holding that the resolution passed by the Executive Council on 08.05.2020 proposing the appointment of the petitioner being not in conformity with law. We are not commended to any statutory provisions entitling a migrant to reap benefit of the caste in the State where he has migrated. Even if there is, such provision is denuded of its legality and validity in view of the decisions in Marri Chandra Shekhar Rao (supra); Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra (supra);Bir Singh (supra) and Veena (supra).
18. We have said that the provisions contained in Section 15, 24(xxxii) and 49 have their own field of operation. Section 15 deals with the powers and duties of Kulpati i.e. the Vice-Chancellor who is appointed as per the procedure laid down under Section 13 and merely because he has some emergency powers under sub-section (7) of Section 15 which stipulates that - "If in the opinion of the Kulpati, and proceeding of any authority, committee or other body of the University is likely to be prejudicial to the interests of the University, he shall record his reasons and refer the matter to the Kuladhipati and so inform the authority, committee or other body concerned whereupon the decision concerned shall not be given effect to till the matter is 12 W.A.No.613/2020 decided by the Kuladhipati under sub-section (4) of Section 12.", will not, in our considered opinion, curtail the powers or confine the exercise of powers by the Chancellor to the reference made under the provision. On the contrary, a mechanism is provided in addition to the absolute exercise of powers by the Chancellor under sub-section (4) of Section 12 that even in a case where the Vice-Chancellor is of the opinion that if proceeding of any authority, committee or other body of the University is likely to be prejudicial to the interest of the University, he shall record his reasons and refer the matter to the Kuladhipati and so inform the authority, committee or other body concerned whereupon the decision concerned shall not be given effect to till the matter is decided by the Kuladhipati under sub-section (4) of Section 12. Furthermore, power of appointment as conferred on the Executive Council under Section 24 (xxxii) also does not curtail the powers of the Chancellor if the Chancellor finds that the resolution whereby appointment is proposed is not in conformity with law. That, Section 49 of the Adhiniyam, 1973 only provides for mechanism or the procedure to be adhered to in appointment of teacher and thus, have no bearing in respect of the absolute powers conferred in the Chancellor under Section 12 of the Adhiniyam, 1973.
19. In view whereof, the conclusion drawn by learned Single Judge that the Chancellor has exercised power arbitrarily, without any reasonable cause and contingency under which he could exercise the power, cannot be given the stamp of approval. Consequently, the findings are set-aside. Since the resolution appointing the petitioner stands annulled, any right flowing out of such action looses its legal status; in other words, it is void ab initio as would confer any right in 13 W.A.No.613/2020 an incumbent. In view whereof, the order dated 26.12.2006 cannot be also faulted with.
20. Consequently, the impugned order dated 19.03.2020 passed in Writ Petition No.19090/2006 is set-aside. The order dated 11.12.2006 passed by the Chancellor and the consequential order dated 26.12.2006 are upheld. The Writ Petition filed by the petitioner is dismissed.
21. The Appeal is allowed to the extent above. No costs.
(Sanjay Yadav) (B. K. Shrivastava)
Judge Judge
anand
Digitally signed by
ANAND KRISHNA SEN
Date: 2020.08.27
11:03:00 +05'30'