Dr. Rajendra Kumar Srivastava vs State Of U.P. Thru. Secy. Deptt. Of ... on 8 May, 2023

[Cites 51, Cited by 1]

Allahabad High Court

Dr. Rajendra Kumar Srivastava vs State Of U.P. Thru. Secy. Deptt. Of ... on 8 May, 2023

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Neutral Citation No. - 2023:AHC-LKO:32702

A.F.R. / Reserved

Court No.20

1. Case :- WRIT - A No. - 4293 of 2022

Petitioner :- Dr. Rajendra Kumar Srivastava

Respondent :- State of U.P. Thru. Secy. Deptt. Of Persons with Disabilities Development And 2 Others

Counsel for Petitioner :- Vijay Dixit

Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi

with

2. Case :- WRIT - A No. - 4316 of 2022

Petitioner :- Vipin Kumar Pandey

Respondent :- State Of U.P. Thru Addl Chief Secy Deptt Of Empowerment of with Persons With Disabilities And 4 Others

Counsel for Petitioner :- Lalta Prasad Misra,Prafulla Tiwari

Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi,C.S.C.

with

3. Case :- WRIT - A No. - 4310 of 2022

Petitioner :- Mrutyunjaya Mishra

Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Empowerment of Persons with Disabilities And 4 Others

Counsel for Petitioner :- Gaurav Mehrotra,Abhineet Jaiswal,Utsav Mishra

Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi

with

4. Case :- WRIT - A No. - 4307 of 2022

Petitioner :- Dr. Adya Shakti Rai

Respondent :- State Of U.P. Thru. Addl. Chief Secy./ Deptt. of Empowerment of Persons with Disabilities Lko And 4 Ors.

Counsel for Petitioner :- Utsav Mishra,Abhineet Jaiswal,Gaurav Mehrotra

Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi

and

5. Case :- WRIT - A No. - 4312 of 2022

Petitioner :- Avanish Chandra Mishra

Respondent :- State of U.P. Thru. Addl. Chief Secy. Deptt. Empowerment Of Persons with Disabilities And 4 Ors.

Counsel for Petitioner :- Gaurav Mehrotra,Abhineet Jaiswal,Utsav Mishra

Counsel for Respondent :- C.S.C.,Atul Kumar Dwivedi

Hon'ble Alok Mathur, J.

1. The challenge has been made in this bunch of writ petitions to the order of cancellation of selection resulting in termination of their services vide dated 06/07/2022 passed by the respondent University after conducting an enquiry. The common ground for cancellation of their selection was the lack of essential qualifications at the time of their selection with regard to their educational qualifications in the year 2014.

2. In the present bunch of writ petitions all the petitioners are teachers having been selected in the Dr. Shakuntala Mishra National Rehabilitation University pursuant to the advertisement dated 17/02/2014. They submitted relevant documents with regard to the qualifications and appeared before a screening committee, and subsequently appeared in the interview before the selection committee which recommended their candidature for appointment. The recommendations were duly placed before the Executive Council of the University pursuant to which they were appointed and were continuing till their services were terminated by means of the impugned orders in the respective writ petitions.

3. The bunch of the cases have been heard together and are being decided together by a common judgement as the issues involved are common except the aspect pertaining to the respective educational qualifications.

4. The impugned orders of cancellation of selection have been passed by the Vice Chancellor of Dr. Shakuntala Mishra National Rehabilitation University, Lucknow which very candidly recites that in the 5th meeting of the General Body an enquiry was instituted against the previous Vice Chancellor Dr Nishith Rai and all the charges against him were proved and he was found guilty of administrative and financial irregularities. After seeking legal opinion, it was decided that all the appointments made during his tenure would be enquired on a case-to-case basis. It further states that the executive committee had appointed a three-member committee which has submitted its report where it has been found that the appointments were made without following the rules of reservation, and no approval was sought from the visitor for appointment of the panel of experts and that persons were appointed despite the fact that they did not have the requisite API score which was contrary to the rules.

5. The Executive Council in its 35th meeting held on 07/10/2021 decided to constitute a 2-member committee consisting of 2 retired Judges of the High Court to enquire into all the appointments made by the erstwhile Vice Chancellor. The enquiry was conducted by the said committee who submitted their report which was placed before the Executive Council and was duly approved in its 38th meeting.

6. Show cause notice was given to the petitioners seeking their response. The response was placed before another committee consisting of a retired High Court Judge and subject specialist namely Professor Dhananjai Yadav, in Charge of the Recruitment Cell, Allahabad Central University, Prayagraj. The committee made its recommendations on 9.6.2022 to the University, which was accepted by the executive committee. The committee concluded that the petitioners did not fulfil the prescribed qualifications on the date of the advertisement and hence their services were terminated. It was further provided that considering that all the petitioners have worked for a period of 6-7 years, they would be eligible to apply in the fresh advertisement which would be issued and in case they are selected, their pay and allowances would be protected.

7. Sri Sudeep Seth, Senior advocate appearing for the respondent University raised preliminary objections regarding the maintainability of the writ petitions. He submitted that the Uttar Pradesh Government Servants (Discipline and Appeal) Rules, 1999 were applicable on the respondent University, which provide for an alternative remedy of appeal against the order of termination, while the petitioners have straight-away approached this Court under Article 226 of the Constitution of India and submitted that the petitions are liable to be dismissed on the ground of alternative remedy. It was further contended that the petitioners have another alternate remedy under Section 7 of the Dr Shakuntala Mishra National Rehabilitation University (For Differently Abled) Uttar Pradesh Act, 2009 (hereinafter referred to as the Act of 2009) before the visitor.

8. Counsel for the petitioners responding to the plea of alternate remedy, submitted that The Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the Rules of 1999) are applicable, but the respondent University itself did not proceed in terms of the said rules as neither any charge sheet was given to them, nor was the enquiry conducted in consonance with provisions contained in Rule 7 of the said rules, nor was the complete enquiry report submitted by them along with a show cause notice. It has further been submitted that once the respondents themselves had failed to adhere to the Rules of 1999 it is not open for them to contend that the petitioners should be directed to follow the said rules. It has been submitted that the petitioners could have been relegated to the remedy of an appeal under the Rules of 1999 only when the proceedings would have been conducted under the said rules and not otherwise.

9. It was further submitted that alternate remedy is not an absolute bar, and the High Court in exercise of its powers under Article 226 of the Constitution of India would entertain petitions where, on the face of it, it can be demonstrated that the decision-makings process suffers from manifest illegality or has been conducted in violation of principles of natural justice in the most arbitrary manner.

10. To consider the preliminary objection raised by the respondent with regard to the maintainability of the writ petition on the ground of availability of an efficacious alternative remedy of an appeal under the Rules of 1999, it is undisputed that the respondent University itself did not adhere/follow to the Rules of 1999 while proceeding against the petitioners. Once the proceedings have not been initiated or conducted in terms of Rule of 1999, by the University itself then it does not lie upon them to raise an objection, that the petitioners should be required to follow the said rule. An appeal would lie under the Rules of 1999 when the proceedings are conducted under the said rules. When the proceedings are conducted under some other provision then the petitioners cannot be asked to follow the Rules of 1999 and resort to the remedy of an appeal under Rule 11 of the said rules. Learned Counsel for the respondent University fairly submitted that the proceedings against the petitioners were not conducted under the Rules of 1999, then the natural corollary would follow, and remedy of Appeal under the Rules of 1999 would not available to the petitioners and hence the preliminary objection of the respondent with regard to availability of alternative remedy in this regard fails.

11. Secondly, the law with regard to maintainability of writ petition despite existence of alternate remedy has been well settled. The High Courts can entertain a writ petition despite the existence of an adequate alternative remedy where there are allegations of breach of fundamental rights, or violations of principles of natural justice or that the order under challenge is wholly without jurisdiction. In the present case, the ground of challenge to the order of termination is that no proper opportunity of hearing was granted to the petitioners, the enquiry was done in various stages by different set of persons for which there is no provision either in the rules or the regulations of the University and apart from that the entire proceedings were vitiated by mala-fide as merely because the petitioners have been appointed under the regime of the erstwhile Vice Chancellor who is alleged to have conducted certain misconducts, as a retaliatory measure, all the appointments made under him was sought to be scrutinised. It is stated that such exercise of police power is not vested under the provisions of the act or rules of the University, and accordingly in regard to such facts writ petition under Article 226 would be maintainable.

12. The power of the High Court to issue prerogative writs was dealt in by the Supreme Court the case of Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1 at page 9 and held as under:-

"14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

16.Rashid Ahmed v. Municipal Board, Kairana [1950 SCC 221 : AIR 1950 SC 163 : 1950 SCR 566] laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S. Rashid & Son v. Income Tax Investigation Commission [AIR 1954 SC 207 : (1954) 25 ITR 167] which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional circumstances.

17. A specific and clear rule was laid down in State of U.P. v. Mohd. Nooh [AIR 1958 SC 86 : 1958 SCR 595] as under:

"But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."

18. This proposition was considered by a Constitution Bench of this Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani [AIR 1961 SC 1506 : (1962) 1 SCR 753] and was affirmed and followed in the following words:

"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."

19. Another Constitution Bench decision in Calcutta Discount Co. Ltd. v. ITO, Companies Distt. I [AIR 1961 SC 372 : (1961) 41 ITR 191] laid down:

"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against the Income Tax Officer acting without jurisdiction under Section 34, Income Tax Act."

20. Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.

21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "Tribunal".

In the case of Centurary Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council, (1970) 1 SCC 582, the Apex Court found that the parties claiming to be aggrieved by the action of a public body or authority on the plea that the action is unlawful, high handed, arbitrary or unjust is entitled to a hearing of writ petition.

In the case of Nathi Mal Ram Sahai Mal v. V.C., Meerut, 1998 UPLBEC 161, the Apex Court held that the existence of alternative remedy has been held to be no bar where it is alleged that the provision is ultra vires or action is in violation of the Principle of natural justice.

The learned counsel for the petitioner further placed reliance upon the case of Dr. Shyam Narain Pandey v. V.C. Gorakhpur University, 1985 UPLBEC 99, in which the impugned order was found to be wholly void and ineffectual under law, the Apex Court observed that the writ petition cannot be dismissed on the ground of alternative remedy after hearing has been done on merits.

31. In the case of Hirdai Narain v. Income Tax Officer, Bareily, AIR 1971 SC 33, the petitioner was having an alternative remedy of filing a revision before the Commissioner of Income Tax but the High Court entertained the writ petition. The Apex Court observed that Hirday Narain could have moved the Commissioner in revision because at the date on which the petition was moved the period prescribed by Section 33A of the Act had not expired. Their Lordship further held that the revision for an order correcting the order of the Income-tax Officer under Section 35 was not moved, the High Court would not be justified in dismissing the petition as not maintainable, which was entertained and heard on merits.

32. In the case of Ashok Kumar v. Managing Director, U.P. Leather Development and Marketing Corporation, 1986 (16) LCD 6, relying upon the cases Jai Kishan v. U.P. Cooperative Bank Ltd., 1989 (2) UPLBEC 144 (DB) and Hirday Narain v. I.T.O., Bareilly, AIR 1971 SC 33, the Division Bench of this Court observed that if an order is void and the petition does not involve controversial question of facts, the Court may not refuse to exercise its jurisdiction. The pendency of the writ petition for several years in the High Court was also taken to be a justifiable ground for not relegating the petitioners to get their grievances redressed under the provisions of the Industrial Disputes Act. Holding that in such circumstances it will not in any manner advance the cause of justice if after the lapse of several years this Court is to tell the workmen to go to the Labour Court for seeking redressal of their grievances more so in a case where there was no controversy over the relevant facts.

33In the case Ashok Kumar v. Managing Director, U.P. Leather Development and Marketing Corporation, 1986 (16) LCD 6, the High Court after observing that the rule of exhaustion of statutory remedy, before a writ will be granted, is a rule of policy, convenience and discretion rather than a rule of law and it further observed that this is a matter of discretion of the Court which is to be exercised according tot he facts and circumstances of each case.

34. In the case of Akhilesh Kumar Saxena v. Director of Education (Secondary) U.P., Lucknow, 1999 (17) LCD 904, the Division Bench of this Court observed that where the Court has entertained the petition staying operation of the impugned order after exchange of affidavits the Court should not have disposed of the matter finally only by dismissing the petition on the ground of alternative remedy. In view of this, the appeal was allowed setting aside the order and directing that the writ petition be disposed of finally after hearing on merits.

35. In the case of Sudhakar Malviya v. Benaras Hindu University, 1997 (2) ESC 1213, it has been held that the High Court was wrong in dismissing a writ petition on the ground of availability of an alternative remedy when the writ petition had been entertained and had remained pending for 11 years. This was a case where statutory remedy under Section 68 of the State Universities Act was available to the petitioner but he has directly approached the High Court under Article 226 of the Constitution against the impugned order and the High Court dismissed the writ petition on the ground of availability of alternative remedy under Section 68 of the State Universities Act.

36. From the catena of decisions of the Supreme Court following propositions broadly flow:

(i) Statutory alternative remedy is not an absolute bar for the High Court to entertain a writ petition under Article 226 of the Constitution.

(ii) Refusal to entertain a writ petition on existence of statutory alternative remedy is a self imposed restriction for which following considerations weigh, namely;

(a) alternative remedy is adequate, efficacious and speedy.

(iii) The High Court can try issues of fact but may not entertain petition where disputed question of facts have to be determined and in such cases the petitioner may be relegated to the statutory alternative forum.

(iv) If a writ petition has been entertained despite there being a statutory remedy, which may be adequate, and the said petition has remained pending for considerable period then there would be little justification for relegating the petitioner to the alternative remedy, unless there are valid and cogent reasons for doing so.

(v) Even if there exists an adequate alternative, efficacious, speedy remedy in the alternative forum, the High Court may entertain the writ petition in the following circumstances.

(a) for enforcement of any of the fundamental rights,

(b) where there has been a violation of principle of natural justice,

(c) where the order or proceedings are wholly without jurisdiction, or

(d) the vires of the Act is challenged.

Lastly, it depends upon the facts and circumstances of each case as to whether the discretion of entertaining the writ petition in the teeth of the statutory remedy has to be exercised or not."

13. Considering the rival contentions with regard to dismissal of writ petitions on ground of alternative remedy, it is seen in the present case, the allegations are that the entire proceedings against the petitioners have been conducted in gross violations of principles of natural justice, as hearing was afforded by one committee while the decision was taken by the Executive Council, this is contrary to all cannons of the decision-making process. It has further been contended that the petitioners have been working pursuant to the selection by a duly constituted selection committee for last 6 to 7 years and termination of the services, on the face of it, are illegal and arbitrary and accordingly this Court is of the considered view in light of said facts, the bar of alternate remedy does not operate against the petitioners and hence the argument of the respondents in this regard is accordingly rejected.

14. The other objection regarding the petitioners having an alternative remedy before the Visitor, is also bereft of merits in as much as the proceedings which are being assailed before this Court have already been subjected to the scrutiny by the Vice Chancellor at the behest of one Dr Abhay Krishna. The Visitor by means of order dated 11/03/2016 has already held that the procedure adopted by the respondent University and the constitution of the selection committee resulting in the appointment of the petitioners is valid. The order of the visitor has been challenged before this Court, and the writ petition is pending consideration. Once the order of the Visitor is already on record, no useful purpose would be served by relegating the petitioners before the Visitor on the same issue. It is also urged that the respondent University is itself opposed the decision of the Visitor, which itself cannot be appreciated. In the present case no useful purpose would be served by relegating the petitioners to the remedy before the Visitor. The objection raised by the petitioners have force and the plea of dismissal on ground of availability of alternative remedy before Visitor is accordingly rejected.

15. The 1st ground raised by the petitioners assailing the proceedings initiated against them culminating with the impugned order of termination is with regard to the procedure followed by the respondents in conducting the enquiry. It is submitted that the respondents have adopted the Uttar Pradesh Government Servant (Discipline and Appeal) Rules 1999 in its meeting dated 07/10/2021, where provision for termination is provided. It is stated that once the Rules of 1999 have been adopted by the respondents, it was bound to follow the said rules while it adopted a procedure which is not prescribed either in the Act of 2009, or any regulations framed under it and therefore the entire procedure followed by the respondents is illegal and arbitrary and, hence, liable to be set aside.

16. The respondents while defending their actions submitted that the disciplinary Rules of 1999 would be attracted only when there are allegations of misconduct by the employee, while in the present case the entire selection was dehors the rules, as the petitioners did not fulfil the minimum prescribed educational qualifications and hence their services were dispensed with and their selection cancelled, and in any view of the matter, the petitioners were afforded full opportunity of hearing before cancelling their selection and consequently supported the enquiry proceedings as well as the order of termination.

17. The provisions regarding power to proceed against an employee of the respondent University can be found in the statutes of 2009. Statute 9.04 provides that a teacher at the University may be dismissed or removed and his services terminated on one or more of the following grounds, which include wilful neglect of duty, misconduct, breach of any of the terms of the contract of service, incompetence or abolition of post. Further statute 9.07 provides as under:-

"9.07. No order dismissing, removing or terminating the services of a teacher of the University on any grounds mentioned in clause (1) of statute 9.04 (except in case of a conviction for an offence involving moral turpitude or of abolition of post) shall be passed unless a charge of been framed against the teacher and communicated to him with the statement of the grounds on which it is proposed to take action and has been given adequate opportunity:-

Of submitting a written statement of his defence of being heard in person, if he so chooses and of calling and examining such witnesses in his defence as he may wish provided that the executive Council or an officer authorised by it to conduct the enquiry, may for sufficient reason to be recorded in writing refused to call any witness (2) the Executive Council may, at any time ordinarily within 2 months from the date of the enquiry officer report pass a resolution dismissing or removing the teacher concerned from service or terminating the services mentioned in the grounds of such dismissal, removal or termination."

18. The Executive Council of the University in its 35th meeting held on 07/10/2021 had resolved to adopt the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999 and the memorandum was issued on 25/10/2021 indicating the said rules having been adopted for conduct of enquiry against the officer and employees of the University.

19. The University has very categorically stated that it had not followed the Rules of 1999 only because there was no misconduct and hence the said rules do not apply to the present case. A perusal of the Rules of 1999 indicates that according to Rule 6 the appointing authority of a Government servant may impose any of the penalties specified in the said rules. Section 7 provides for a detailed procedure to be followed for imposing major penalty. Major penalties include withholding of increment with little effect, reduction to a low post or grade, removal from service, dismissal from service as provided in Rule 3 while minor penalties include censure, withholding of increment etc.

20. In order to appreciate the arguments raised by the respondents the Rules of 1999 were not required to be followed because there was no allegation of misconduct, and secondly the selection of the petitioners was set aside, for which there is no provision in the Rules of 1999.

21. This Court after considering the rival submissions is of the view that the Rules of 1999 were applicable in the present case and were required to be followed by the respondents. A perusal of the impugned order would clearly reveal that the executive committee had recommended the termination of services of the petitioners, while the Vice Chancellor while complying with the order of the executive committee had set aside the selection of the petitioners. We proceed to decide the controversy in the present case treating the impugned order to be an order terminating the services of the petitioners. The services of an employee can be terminated only as a measure of penalty as provided in the Rules of 1999, or the statutes of the University. The common ground in all the cases is that the petitioners lacked the educational qualifications at the time of the selection.

22. This allegation is directly attributable to the petitioners, and such conduct would be liable to be included in the category of misconduct, which would be the act of obtaining employment without being duly qualified for the same. It is the conduct of the petitioners in submitting their educational qualifications, which according to the respondents they did not fulfil the criteria as laid down in the advertisement or the guidelines published by the University Grants Commission, for which their services have been terminated. On both these counts, this Court is of the view that it was imperative that the procedure established and accepted by the respondents, which is the Rules of 1999 were to be followed, and in not doing so the respondents have acted in the most arbitrary and illegal manner, and the impugned termination is not in accordance with law.

23. In order to impose the punishment of dismissal or removal, the Rules of 1999 will have to be followed. In order to impose major penalty facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge contained in the chargesheet, where the proposed evidence and the name of witnesses are required be mentioned. The employee is required to file his response to the charges mentioned in the chargesheet and in case he denies the charges, the enquiry officer shall call the witnesses to the proposed the charge sheet to record oral evidence, and after recording of evidence submit his enquiry report to the disciplinary authority, who may either accept the same, or differ with the report or order re-enquiry as the case may be. In case he does not order re-enquiry, he has to give a show cause notice to the employee giving him a copy of the enquiry report, and finally conclude the proceedings either exonerating the employee or awarding punishment.

24. The aforesaid procedure is also envisaged in Statute 9.07 of the respondent University. In the present case no charge sheet was given to the petitioner nor was any oral evidence of the prosecution recorded in presence of the petitioners and they were not handed over the relevant documents sought by them on the ground of confidentiality and even the copies of the enquiry report of the committees were never given to the petitioners and only a extract was given along with the show cause notice and, therefore, the procedure as provided in Statute 9.07 was not followed, and consequently the entire proceedings were held in violation of statutes of the University as well as in principle of natural justice.

25. To examine the validity of the proceedings conducted by the respondent University culminating in the impugned orders of cancellation of selection, it is noticed that the 'authorities' of the University have been prescribed under Sections 8 and 13 of the Act of 2009. It is laid down that the Executive Council shall be the Chief Executive body of the University. Section 16 lays the power and functions of the Executive Council, according to which it has power to appoint Professor, Reader, Lecturer and other members of the teaching staff as may be necessary on recommendation of the selection committee constituted by statutes for the purpose. In exercise of powers under Section 32 (1) of the Act of 2009, the State Government on 08/07/2009 framed Dr Shakuntala Mishra rehabilitation University (For differently abled) First Statutes, 2009, (hereinafter referred to as the Statutes) wherein in Statute 8.01 provides the qualification required for appointment and career advancement of teachers in the University other than the faculty of special education which shall be as per the qualifications prescribed by the University Grants Commission. Further in Statute 8.04, it has been provided that notwithstanding anything contained in Statutes 8.01, 8.02, 8.03 the Executive Council may invite a person of high academic distinction and professional attainments to accept the post of Professor or Reader or any other academic post in the University, as the case may be, on such terms and conditions as it may deem fit.

26. Chapter IX of the Statues of the University, specifically Statute 9.07 provides that no order dismissing, removing or terminating the services of a teacher of the University shall be passed unless a charge has been framed against the teacher and communicated to him the statements of grounds, its proposed action and has been given adequate opportunity. In Statute 9.09, it has been provided that executive Council shall constitute, for such term as it thinks fit, a disciplinary committee in the University which shall consist of Vice Chancellor and other persons nominated by it.

27. It seems that there were several allegations against former Vice Chancellor, against whom action was taken after enquiry was instituted. The proceedings against the former Vice Chancellor Dr Nishith Rai were also looked into in Special Leave Petition No.9830/2018 by the Supreme Court, and vide order dated 06/04/2018 the University was given liberty to proceed against him on all matters except which were subject matter of writ petition No. 7695 (SB) of 2016.

28. The Executive Council decided to initiate an enquiry against the former Vice Chancellor in its 35th meeting held on 07/10/2021 and constituted a committee consisting of 2 retired High Court Judges.

29. In the present case, the entire controversy has its roots in the resolution passed by the General body of the University on 25/01/2019. In the said meeting the enquiry report submitted by Justice (Retd.) Shailendra Saxena was considered. The enquiry instituted against the former Vice Chancellor Dr Nishith Rai was conducted by Justice (Retd.) Shailendra Saxena. In the said enquiry report submitted to the General body of university the allegations against the former Vice Chancellor were proved. While accepting the said enquiry report, the General body also resolved that action would be taken with regard to all the irregularities including technical, administrative or financial committed by the former Vice Chancellor after seeking legal opinion.

30. The General body of the University in its meeting held on 16/09/2021 decided to enquire into the appointments made by the former Vice Chancellor, in pursuance to which the Executive Council in its 35th meeting dated 17/10/2021 had resolved to have the matter relating to the appointments inquired by a committee consisting of 2 former judges of the High Court and accordingly a committee consisting of Justice (Retd) S.V.S Rathore and Justice (Retd) Pratyush Kumar was constituted for the purpose. The General body in its resolution dated 16/09/2021 had limited the scope of enquiry only to the procedure followed in making the appointments to the academic and non-academic posts.

31. The said committee consisting of former Judges of the High Court conducted the enquiry by going to the records of the selection committee. In the report dated 28/01/2022 submitted by the committee, the procedure for appointment of the selection committee was considered. They took notice of the fact that as per the provisions of section 25(2)(a)(iv) of the act of 2009 which deals with constitution of the selection committee provides as follows:-

25. (1) The Executive Council shall constitute a Selection Committee for making recommendations to the Executive Council for appointment to the posts of teachers and other employees in the University.

(2)(a) The selection committee shall consist of the following members, namely:-

(i) the Vice Chancellor who shall be the Chairperson of the Committee for all leaching posts and the nonteaching posts of Group 'A' and Group 'B';

(ii) the Registrar shall be the Chairperson of the committee for all nonteaching posts of Group 'C' and Group 'D';

(iii) the Head of the Department concerned, if any who is not lower in rank than that of the post for which selection is to be made;

(iv)(a) Where an appointment is to be made for any teaching post, three experts nominated by the Visitor from amongst a panel of names recommended by the Academic Council and approved by the Executive Council:

Provided that till the constitution of Academic Council and Executive Council the above referred experts shall be nominated by the Vice-Chancellor.

(b) Where an appointment is to be made to any post other than concerned with teaching, the Registrar shall constitute the selection committee as per the Provisions of Uttar Pradesh Direct Recruitment Rules, 2002 (Outside the Perview of Public Service Commission) for Group "c" post as amended from time to time.

32. The committee was of the opinion that according to clause (iv) (a) of section 25 three experts have to be nominated by the visitor on the recommendation by the academic Council approved by the Executive Council, and this condition can be dispensed with only where the academic Council and Executive Council have not been constituted. According to the Enquiry Committee, at the time of appointment of the Expert Panel, the Executive Committee and the Executive Council had been constituted and consequently the Vice Chancellor could not have exercised his power as provided in the proviso to Section 25(iv)(a) of the Act, 2009. They further noticed that according to Section 44 of the Act, 2009, the proceedings of any authority, committee or body of the University shall not be invalidated merely for the reason that the General Council, Executive Council, Academic Council or any other authority or body of the University is not duly constituted or there is defect in its constitution or re-constitution.

33. It is on the basis of the aforesaid facts that the Committee came to the conclusion that appointments to the teaching post in pursuance to the advertisement nos. 17 of 2014 and 19 of 2015 were not in consonance with the statutory provisions, as the selection committee was constituted without taking approval of the Academic Council and held that constitution of the Selection Committee was illegal.

34. At this stage, it is relevant to notice that this aspect of the matter as to whether the Selection Committee was duly constituted or not had already been scrutinised by the Visitor vide order dated 11/03/2016 while deciding complaint made by one unsuccessful candidate namely Dr. Abhay Krishna. In his complaint the complainant has also stated that the Selection Committee was constituted by the Vice Chancellor without referring the same to the Executive Council. He had further categorically stated that the Selection Committee was not constituted in terms of Section 25(2)(A)(iv)(a) of the Act, 2009.

35. The Visitor considered all these contentions and also statutory provisions and was of the considered view that:-

"In view of the aforesaid facts of the matter, there is no force in the three experts by the Visitor to the Selection Committee the composition of the Selection Committee had vitiated, Section 16(ii) of the Act provides that the teachers and the Librarian of the Rehabilitation University shall be appointed by the Executive Council on the recommendations of a Selection Committee, Section 25(2)(a) of the Act provides for the composition of the Selection Committee. Section 44(1) validates the decisions of the authorities of the Rehabilitation University even if there has been any defects etc. in the constitution of such authorities. ... There is, therefore, no force in the contrary contentions of the representationist Dr. Abhay Krishna."

36. Undoubtedly, the Visitor is the highest authority of the University and once a decision has been rendered by the Visitor, that decision was binding on the University and in any view of the matter, the decision of the Visitor cannot be reviewed by any other authority subordinate to Visitor either by the General Body or the Vice Chancellor.

37. It is settled proposition of law that what cannot be done directly cannot be done indirectly. The order of the visitor was undoubtedly binding upon the respondent University, and only with a view to unsettle order of the visitor, the University resorted constituting a committee consisting of 2 former judges of the High Court, who in turn recorded a finding that the selection committee was not duly constituted, and the same was accepted by the University. The procedure adopted by the university is clearly illegal, arbitrary and malafide, done only with the intention to override the decision of the visitor. The order of the visitor was final and binding on the University, and it was not within the competence of the University to hold the order of the visitor to be illegal, arbitrary, or record any finding contrary to the said order. The findings recorded by the committee consisting of Retd. Judges were merely recommendatory, but the Executive Council of the University was bound to act in accordance with law, and it could not have approved the said findings contrary to the order of the visitor, and consequently the acceptance of the recommendations are clearly illegal and arbitrary. The manner in which the University has proceeded in the matter clearly indicates that to achieve their objectives, and to annul all the actions of the former Vice Chancellor, they chose not to follow the rules and basic principles which guide their actions.

38. Recommendations of the Inquiry Committee were again placed before the Executive Council which was duly considered and accepted the said recommendations in its 38th Meeting dated 19.04.2022. It was further stated that appointments made during the tenure of former Vice Chancellor Sri Nishith Rai suffer from following illegalities :-

(a) Rules pertaining to reservation were not followed;

(b) Selection Committee was not constituted according to the rules;

(c) More persons were appointed than what was published in the advertisement.

(d) Ineligible candidates were selected only on the basis of interview.

39. It was further decided that persons who were not holding requisite qualifications at the relevant time be asked to submit their response and the said response be placed before the two members Committed consisting of a retired High Court Judge and subject Specialist and only then final decision would be taken regarding their selection.

40. Show cause notices were given to the petitioners on 22.04.2022, by the Vice Chancellor of the Dr. Shakuntala Misra National Rehabilitation University, Lucknow to show cause stating that appointments made during the tenure of former Vice Chancellor Sri Nishith Rai which were inquired into by the Committee consisting two retired High Court Judges, who submitted their report on 29.10.2021 indicating that the petitioners were not qualified for appointment. The infirmities noticed by the Enquiry Committee were informed to the various petitioners who were in turn asked to respond to the same within 15 days. Some of the petitioners responded to the notice while the others had sought copies of relevant documents and also the entire report of the Enquiry Committee.

41. The response submitted to the show cause notice dated 22.04.2022 were considered by a committee consisting of Justice Harsh Kumar, retired High Court Judge as well as Subject Expert. After consideration of the response to the show cause notice submitted by the petitioners, the said Committee submitted its report on 09.06.2022, which has been placed before and considered by the Executive Council in its 39th Meeting held on 13.06.2022 and decided to accept the recommendations made by the said Enquiry Committee and a decision was taken to terminate the services of the petitioners. It was further resolved that order would be communicated by the Vice Chancellor of the University and accordingly selection of the petitioners has been cancelled by means of impugned order dated 06.07.2022.

42. The aforesaid order 06/07/2022 has been challenged by the petitioners on the following grounds :-

(a) Selection of the petitioners has been illegally cancelled after more than 7 years when admittedly there was no fault or mis-representation on the part of the petitioners seeking appointment.

(b) Copy of the enquiry report of the Committee was never provided to the petitioners, resulting in the orders having been passed in gross violation of principles of Natural Justice.

(c) No opportunity of personal hearing was given before passing the order dated 06.07.2022, and the proposed order was never communicated to the petitioners, resulting in violation of principles of natural Justice.

(d) Once the Visitor has considered the entire matter and held the selections to be legally valid and proper it was not open for the respondent-University to set aside the selection of the petitioners on the same grounds.

(e) Re-visiting the entire selection process, in fact is reviewing the entire selections made on various posts which amounts to reviewing their previous order, the power of which is not clearly vested in the respondents.

(f) Forming a committee to consider the reply to the show cause notice is illegal and arbitrary. The essential decision making functions cannot be delegated.

(g) All the petitioners, in fact, are fully qualified and eligible to be appointed and by not looking into it objectively and in the right perspective, will lead to miscarriage of justice in termination of their services.

(h) The entire process is malafidely from the very start, as it was already predetermined to take action against the persons appointed by the former Vice Chancellor. Even the resolutions of the general body and exhibited council have stated this explicitly.

(i) The procedure adopted was illegal and arbitrary, neither were the Rules of 1999 followed nor the statutes of the University were followed rendering the entire process void ab initio and the impugned orders are liable to be set aside .

Violation of principles of natural justice:-

43. The submission made on behalf of petitioners that termination of services of petitioners could have been made only after following the procedure established by law, which in the present case was U.P. Government Servant (Discipline & Appeal) Rules, 1999, which has been duly adopted by the respondent-University. It is further submitted that apart from application of aforesaid Rules, the statute of the University itself provides procedure wherein in Statute 9.07, dismissal, removal or termination of services of teachers can be made in terms of Statute 9.04, after framing charges against the said teacher and giving him adequate opportunity of submitting response in his defence and being heard in person and calling for examining such witnesses as he may wish.

44. Even if Rules of 1999 were not followed, the respondents could have followed the provisions contained in the Statute 9.07. Testing the order of termination on the anvil of above provisions it is noticed that no charge sheet was ever given to the petitioners and only show cause notices were issued to them on two occasions i.e. on 21.1.2021 and 22.4.2022 where they had submitted reply, but again the copy of the inquiry report was never given to them. From the aforesaid, it is clear that in absence of charges being framed against the petitioners, they were unable to adequately defend themselves which is in gross violation of provisions of Statute 9.07 of the respondent-University.

45. It has also been urged that at no point of time were they informed of the consequences including cancellation of their selection or termination of their services.

46. Stand of the respondent-University that full opportunity was given before passing of the impugned order is unconvincing and it has not been denied that charge sheet was never given to the petitioners in the said process. Accordingly, this Court is of the considered view that by not following the mandate provided in Statute 9.07, the respondents have acted in most arbitrary and illegal manner and termination of services of petitioners is therefore not sustainable in law and deserves to be set aside.

47. During course of hearing, considering the arguments of the petitioner that copy of the enquiry reports were never submitted to the petitioners and only extracts of the said reports were quoted in the show cause notices given to the petitioners this Court has called upon the respondents to file the Enquiry Reports. In pursuance to the directions issued by this Court the respondents have placed the same on record by filing supplementary affidavit, after providing copies of the same to the petitioners. The law in this regard has been settled by Supreme Court in various cases some of which are as under:-

48. In the case of Mahipal Singh Tomar v. State of U.P., (2013) 16 SCC 771 : (2014) 3 SCC (L&S) 610 : 2013 SCC OnLine SC 1135 at page 796 it has been held as under:-

"44. We shall now advert to the impugned orders. As analysis thereof shows that the High Court had mainly relied upon the fact-finding report prepared by the District Magistrate, referred to the provisions of the 1980 Act and held that the appellants' placement in the particular colleges was contrary to law and they were responsible for such placement. The High Court noted that some of the appellants had been placed in the colleges which were not even advertised by the Commission and others were placed against the vacancies notified in earlier years. In the opinion of the High Court, the placement of the appellants was per se illegal and void. However, the record produced before this Court does not show the appellants' direct involvement in their placement in the particular colleges. That apart, the questions whether the appellants' placement in the particular colleges was contrary to the statute and whether their placement was subsequently changed for extraneous considerations could not have been decided without supplying each one of them copy of the inquiry report and without giving him/her an effective opportunity to controvert the findings recorded by the District Magistrate, who had prepared the report by looking at one side of the coin. He did not give opportunity to any of the appellants to represent his/her cause or explain his/her position. Not only this, he did not confront any of the appellants with the adverse material produced before him. Therefore, the report of the District Magistrate could not have been relied upon by the State Government for directing cancellation of the placement of the appellants in the particular colleges and the Director committed grave illegality by mandating the termination of their services.

45. The three judgments relied upon by the High Court for rejecting the appellants' contention on the issue of violation of the rule of audi alteram partem are clearly distinguishable. In all the cases, this Court had found that the appointments of the appellants were contrary to law and the constitutional code of equality. It was also found that the appellants did not fulfil the conditions of eligibility. In the background of the factual matrix of those cases, this Court upheld the action taken by the employer to terminate the services of the appellants. On a factual plane, there is no similarity between the cases of the appellants and those relied upon by the High Court. Therefore, the principle that the court will not restore an illegal order could not have been invoked by the High Court for defeating the rights acquired by the appellants on the basis of their selection by the Commission.

46. In the result, the appeals are allowed. The impugned orders are set aside. The termination of the appellants' services is declared illegal and quashed. They shall be deemed to be continuing on the posts of Principals, subject to the following riders:

(i) If the management of the particular college has initiated any disciplinary action against any of the appellants for the misconduct committed during the course of service then this order shall not operate as a bar to the taking of final decision in the matter.

(ii) The Director shall be free to relocate or change the placement of the appellants in accordance with the relevant statutory provisions and the order passed by this Court shall not operate as an impediment in taking of appropriate action by the Director."

Undoubtedly, in the present case, only copy of extract of the inquiry report was supplied to the petitioners and they were never given entire report where the aspect with regard to constitution, terms of reference and the issues detailed by them have been discussed. All these matters were relevant to the petitioners for defending themselves and also raising objections with regard to the procedure adopted by the said Committee.

49. Non supply of entire enquiry reports to the petitioners has clearly prejudiced their defence and consequently, this Court is of the considered view that proceedings were conducted in gross violation of principles of natural justice and hence on this count also the proceedings were arbitrary, illegal and liable to be quashed.

Whether the procedure followed for conducting enquiry can be sustained?

50. As already discussed above the Enquiry Committee of two former Judges of this Court was constituted who opined that the selection committee was not properly constituted and therefore it recommended cancellation of all the appointments made by the said selection committee. The said committee relied mainly upon the provisions of Section 25(2)(A)(iv)(a) of Act, 1999. The said recommendations were duly approved by the General Body of the respondent-University and a decision was taken to proceed against the teachers who lack educational qualification at the time of their selection.

51. In order to consider this aspect of the matter, show cause notice was given to the petitioners and response was sought from them with regard to their educational qualifications. The response of the teachers instead of being considered by the Executive Council which was their appointing authority, was placed before another committee consisting of retired High Court Judge and a Subject Specialist and recommendations of said committee were again judged by the Executive Council, which proposed termination of services of petitioners and it was left to the Vice Chancellor to communicate the said order to the petitioners. The Vice Chancellor passed the impugned order cancelling their selection.

52. The procedure which has been followed is not prescribed in the Act of 1999 or in the Statute framed by the respondent-University which in fact provide for the procedure to be followed wherever the services of a teacher are to be removed/dismissed. Once a procedure has been duly adopted which provides for termination of services of teachers, then, the respondent-University was under mandate to follow the said procedure. Firstly, entire proceedings are de-horse the prescribed procedure and therefore same could not be validated or sustained. Secondly, it is noticed that to proceed against an employee is right of the employer whenever there are allegations of misconduct of breach of contract of employment. To make an enquiry into the matter and enquiry officer can be appointed, but after receiving the enquiry report the essential aspect of decision making cannot be delegated to any other authority. In the present case, response received to the show cause notice were directed to be placed before a Committee which consisted a former Judge of this Court and a Subject Specialist. They looked into the response as to whether the petitioners fulfilled all the qualifications prescribed and its recommendations were placed before the Executive Council which had duly accepted the same. This delegation of power of looking into the response to the show cause notice, and affording personal hearing is essential feature of the enquiry conducted against a delinquent employee and such a procedure which has been followed in the present case is neither been provided in any Rule, Statute or Act, could not have been delegated to an outside agency. Needless to say, hearing is to be afforded before an authority who has to take a decision on the matter. In case hearing is done by one authority and the order is passed by another, the hearing in such a case becomes illusionary and merely camouflage with regard to following the principles of natural justice. The hearing was afforded by the committee, while the decision was to be taken by the Executive Council before whom no hearing took place, and consequently the proceedings were held in violation of principles of natural justice. Even the procedure followed was arbitrary and not prescribed and accordingly entire proceedings are illegal and arbitrary and violative of natural justice and liable to be quashed on this ground alone.

53. The other ground which has been urged by the petitioners is that their recruitment was made in the year 2015 and they have been continuing on the said post for the last 7-8 years till a decision was taken by the respondent-University cancelling their selection. The first issue as to whether selections which have been made by a duly constituted Committee consisting of subject specialist from various fields and after examining the qualifications of the petitioners and recommendations have been duly accepted by the University and without there being any additional material on record could the selections be cancelled? It was submitted that the entire matter could not have been reviewed by the University after such along lapse of time which resulted in the impugned order of cancellation of selection.

54. Further additional fact is that after their selection the petitioners completed more than one year in service their services were confirmed. It is in the case of the respondent-University that there were no complaints against the petitioners with regard to their work or any deficiency in their work was noticed as teacher in the respondent-University.

55. Once selections have been made by a duly constituted Committee as prescribed under the Rules made by the University Grants Commission and such recommendations were accepted by the University then in absence of any power, the University does not have power to review the appointments/selection, unless there are complaints with regard to defect or otherwise in their educational qualifications.

56. A perusal of the Act of 2009 also indicates that once selection has been made by a duly constituted selection committee then even if there is any lacunae, the same deserves to be ignored and the selections made are to be preserved and protected to that effect. Even Section 44 of the Act, 2009 provides that a Committee constituted by the University shall not be invalidated merely for the reason that General Body, Executive Council or any other body of the University is not constituted or there is defect in its constitution or re-constitution. In all the matter which have been examined by this Court in the present bunch of writ petitions there is no allegation that any of the petitioners has suppressed material fact regarding their qualification or had given any forged document or degree at the time of their selection.

57. On the other hand the Selection Committee was duly constituted and its constitution in any case is saved by provision of section 44 of the Act of 2009. The allegations of the University with regard to selection of expert members also cannot be substantiated after this aspect was duly examined by the Visitor, who had rejected the allegations to the contrary. Merely because the said selections were made during the tenure of former Vice Chancellor, whose appointment itself was challenged and the appointments made during his regime were scrutinised, which indicates pre-determination on behalf of the respondent-University. Merely because the present administration of the University was adamant to inquiry into the appointments made during the regime of former Vice Chancellor against whom there were several allegations, cannot be main consideration for proceeding against the teachers appointed during the tenure of former Vice Chancellor.

58. Apart from the fact that non supply of Enquiry Reports, constitutes material illegality in conducting the proceedings against the petitioners. It was also noticed that the University had disclosed that the aspect pertaining to the selection of three experts to be nominated by the Visitor had already been examined by the Visitor on the basis of a complaint made by one Dr. Abhay Krishna and the Visitor passed order dated 11.03.2016, where it was recorded that the Selection Committee has been properly constituted, and still the committee of judges to say to examine the said issue and recorded a finding contrary to the order passed by the visitor. The said Committee could not have made recommendations contrary to the order passed by the Visitor because at best it was exercising delegated function of authority of the University and was bound and as such was bound by the decision made by the Visitor.

59. This Court after examining various resolutions of the General Body and the Executive Council where it has been considered that all the appointments made under tenure of former Vice Chancellor required to scrutinised, which indicates mind set of the present administration who is running the affairs of the respondent-University. Conducting such an exercise after lapse of 6 to 7 years is clearly illegal and arbitrary despite the fact that there were no complaints against the appointment of the petitioners, and only reason disclosed in the resolutions of the general body and the executive Council is with regard to the procedure followed in appointing the selection committee, constituted for selection of teachers in 2014. In this regard it is relevant to consider the judgement of the Supreme Court.

60. In the case of Md. Zamil Ahmed v. State of Bihar, (2016) 12 SCC 342 : (2017) 1 SCC (L&S) 396 : 2016 SCC OnLine SC 416 at page 345 it has been held as under:-

"15. In these circumstances, we are of the view that there was no justification on the part of the State to wake up after the lapse of 15 years and terminate the services of the appellant on such ground. In any case, we are of the view that whether it was a conscious decision of the State to give appointment to the appellant as we have held above or a case of mistake on the part of the State in giving appointment to the appellant which now as per the State was contrary to the policy as held by the learned Single Judge, the State by their own conduct having condoned their lapse due to passage of time of 15 years, it was too late on the part of the State to have raised such ground for cancelling the appellant's appointment and terminating his services. It was more so because the appellant was not responsible for making any false declaration nor he suppressed any material fact for securing the appointment. The State was, therefore, not entitled to take advantage of their own mistake if they felt it to be so. The position would have been different if the appellant had committed some kind of fraud or manipulation or suppression of material fact for securing the appointment. As mentioned above such was not the case of the State.

61. In the case of Vikas Pratap Singh v. State of Chhattisgarh, (2013) 14 SCC 494 : (2013) 3 SCC (L&S) 100 : 2013 SCC OnLine SC 599 at page 502 following has been held:-

"22. The pristine maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together) has never lost its temper over the centuries and it continues to dwell in spirit and body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or mala fide. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766] , S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] and Union of India v. M. Bhaskaran [1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94] .) It is also settled law that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardising the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bona fide of the candidate in such appointment and length of service of the candidate after such appointment (see Vinodan T. v. University of Calicut [(2002) 4 SCC 726 : 2002 SCC (L&S) 606] ; State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] )."

62. While examining the said selections the respondent-University should have been careful and circumspect in their approach and should have followed the procedure and norms. The proceedings conducted by the respondent-University shows its overzealousness to annul the decisions of the former Vice Chancellor which is writ large in the manner they have acted against the petitioners which is not appreciated specially in an educational institution meant for higher learning which also deals with special students who require much more care, attention and sensitivity. Subsequent to the appointment, the petitioners services were confirmed and after such a long time of 6-7 years the respondent university has initiated the proceedings is clearly illegal and arbitrary, and without there being any fresh material amounts to review of the selections made, which power is not vested either in the Act of 2009 of the statutes of the University and on this ground also the proceedings conducted by the respondent University and the impugned orders are illegal and arbitrary.

63. With regard to the application of principles of natural justice, the respondents have submitted that the very fact that the respondents did not fulfil the minimum eligibility qualifications for recruitment to various posts to which they were appointed, it would have been empty formality to give them due opportunity of hearing, and consequently submitted that even if there is some infraction of the principle of natural justice the same would not vitiate the impugned order of termination.

64. In order to appreciate the argument of the petitioner is imperative to look into the educational qualifications of the petitioners:-

(A) Writ A No. 4293/2022 (Dr Rajendra Kumar Srivastava Vs. State of U.P. and others)

(i) An advertisement was issued by the respondent University on 16/02/2015 inviting applications for number of disciplines including for Professor of Computer Science and qualifications required by the candidate were mentioned at serial no.07 which were as follows:-

(a) qualifications as above i.e for the post of Associate Professor is applicable.

(b) Post PhD students and guiding PhD students

(c) minimum of 10 year teaching/research/industrial experience with at least 5 years shall be at the level of Associate Professor or minimum of 13 year experience in teaching/research/industry

(d) in case of research experience good academic record and books/research paper publication/PR/patents records shall be required as a deemed fit by the expert member of the selection committee.

(e) If the experience in industries considered, the same shall be at managerial level equivalent to associate professor with the active participation record in devising/designing, executing, analysing, quality control, innovating, training, technical books/research paper publication/IPR/patents etc as real fit by the expert member of the selection committee.

(ii) The required qualifications for the post of Associate Professor were provided at serial No. 18 of the said advertisement which are as follows:-

B-E/B-Tech and ME/M tech in relevant branch with 1st class or equivalent either in B-E/B-Tech or ME/M tech Or B-E/B-Tech and MCA with 1st class or equivalent in either B-E/B-Tech or MCA Or MCA with 1st class or equivalent with 2 years relevant experience

(iii). The qualifications of the petitioner are M.Sc in computer science, M.Sc Physics, MA Maths and PhD computer science. The allegation against the petitioner was that he was not qualified for being appointed on the post of Professor in computer science in as much as he was not holding a degree of MCA. The petitioner on the other, submitted that he was fully qualified in as much as he obtained a Masters degree in maths in 1999 and MSc in computer science in 2001 and as per the decision of the executive committee of AICTE dated 01/06/2016 MSc in computer science is a degree which is held to be equivalent to the degree of MCA. Sri Sudeep Seth Senior Advocate fairly submits that after 2016, when the AICTE has clarified that M.Sc Computer Science would be equivalent to MCA the petitioner would be eligible for appointment but not prior to the said date.

(iv). In the impugned order, the contention of the petitioner has been duly recorded but has been rejected by means of an cryptic order without assigning any reasons. The impugned order does not consider the contention raised by the petitioner, and it indicates that his contention was not even considered and in absence of any reasons it cannot be said that there was any application of mind by any authority while rejecting his contention.

(v). To consider whether the petitioner possessed relevant qualifications for his appointment to the post of Professor in Computer Science and as to whether MSc in computer science is equivalent to MCA, it is noticed at the very outset that according to the professional body constituted for dealing in the special field has prescribed the norms which are to be followed by all the institutions. In its notification published on 01/06/2016 certain clarifications have been issued including the fact that MSc computer science is equivalent to MCA. The respondents do not dispute this fact stated that the said notification was issued in 2016 while the petitioner was appointed prior to the said date.

(vi). A perusal of the clarifications issued by the AICTE does not leave room for doubt about the equivalence of MCA with a M.Sc computer science. As it is only a clarification, it would relate back to date of initial prescription of the qualifications. Not only has the AICTE issued the clarification, but even prior the same The Indian Institute of Technology Madras recognised the said equivalence when they had published an advertisement for recruitment in the year 2013-2014. This aspect of the matter was also considered by the Supreme Court in the case of Saurabh Pal Vs The Chancellor, Veer Bahadur and others Appeal (Civil) 596 of 2008 decided on 22/01/2008

5) The University which was a respondent in the writ petition filed by the 5th respondent, however, contended that both the appellants possessed the qualification prescribed by it in the recruitment advertisement and the qualification prescribed by it was in accordance with the AICTE Norms. The qualification prescribed in the advertisement was as follows: Lecturer: (For Engineering Branches) Essential: First Class Bachelors' Degree in appropriate branch of Engineering Technology.

Desirable: Master's degree in relevant branch.

The University submitted that "M.Sc. (Computer Science)" was treated as equivalent to 'MCA' and, therefore, the appellants were qualified for being appointed as a lecturer-MCA,

6) The High Court relying on Table=E-2 of AICTE Norms held that the two appellants did not possess the requisite qualification and therefore, set aside their selection. Aggrieved by the same, the present appeal is filed.

7) We heard learned counsel for the appellants and learned counsel for the 5th respondent.

8) Table-E-2 issued by the AICTE when read with Note (2) under Table-E-2 clearly shows that the degree possessed by the appellants was also a requisite qualification for appointment as Lecturers in MCA. The Division Bench of High Court clearly mis-read Table E-2 of AICTE Norms as it failed to notice Note (2) to Table E-2. We are informed that the copy of Table E-2 produced by the 5th respondent in the writ petition was not complete and did not contain the Note. Be that as it may. We are satisfied that the appellants possessed the requisite qualification. As the decision of the High Court setting aside their appointments is erroneous, it is set aside and the challenge to the appointment of the appellants as Lecturers is rejected. Their appointment is upheld. The appeal is disposed of accordingly.

65. The above judgements clearly resolve the dispute that M.Sc. has been held to be equivalent to M.Sc. Computer Science much prior to issuing of the clarification by the AICTE in 2016 as noticed by the Hon'ble Supreme Court. It indicates that the petitioner was fully eligible and qualified for being appointed on the post of Professor in Computer Science and fulfilled all the eligibility conditions in this regard. The respondents have acted in most illegal and arbitrary manner and did not even consider the contention of the petitioner when he responded to the show cause notice issued by the University.

66. The procedure adopted by the respondents, as well as the decision making process adopted by them where the personal hearing was given by the committee and the decision taken by the executive Council indicates that proper or opportunity of hearing was not given to the petitioners before passing of the impugned order of termination. This aspect of the matter would have been duly considered by the selection committee at the time of selection of the petitioner, and that is why an expert members of the panel is included as per the norms prescribed by the UGC, but the enquiry committee did not have any expert member and therefore could not appreciate the stand taken by the petitioner. It is in this regard the Supreme Court has also held in the case of Basavaiah (Dr.) v. Dr. H.L. Ramesh, (2010) 8 SCC 372

20. It is abundantly clear from the affidavit filed by the University that the Expert Committee had carefully examined and scrutinised the qualification, experience and published work of the appellants before selecting them for the posts of Readers in Sericulture. In our considered opinion, the Division Bench was not justified in sitting in appeal over the unanimous recommendations of the Expert Committee consisting of five experts. The Expert Committee had in fact scrutinised the merits and demerits of each candidate including qualification and the equivalent published work and its recommendations were sent to the University for appointment which were accepted by the University.

21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture.

67. In light of the above, this Court comes to a conclusion that the petitioner was fully qualified for being appointed and did not lack any qualification as alleged, as such, the impugned order is rendered illegal and arbitrary and liable to be set aside.

68. Writ petition No. 4316 of 2022(Writ A) Vipin Kumar Pandey vs State of U.P. and others)

(i).The petitioner had applied for the post of Assistant Professor (English) and the only ground on which the services of the petitioner was terminated is that while offering his candidature details given in regard to API score indicated that he did not have score of 300 as prescribed under the UGC Regulations. The allegation was that the petitioner claimed API score of 304.5 points under category III by awarding 50 points in category III sec IIIE (i) whereas a maximum of 30 points can be claimed under this section, and hence the petitioner came down to 284.5 which is less than the minimum required API score. Before the selection committee the petitioner submitted 4 more research papers all of which related to period prior to the issuance of advertisement. The selection committee being satisfied with the documents presented by the petitioner exceeded requirement of the API score, and consequently the petitioner was declared to be selected. The selection committee consisted of experts who after due consideration that the petitioner fulfils eligibility conditions selected him for the said post. Only contention raised by the respondents is that while filling up the application form, the petitioner had granted himself marks much more than permissible in the particular category. It could also not be disputed that the petitioner had produced some other papers authored prior to the date of advertisement for which he was entitled to marks, and after taking the same into consideration he had obtained more marks than were required, and hence there was no infirmity in his selection.

(ii). Sri Sudeep Seth Senior advocate has relied upon judgement of the Supreme Court in the case of show Ashok Kumar Sonkar vs Union of India and others (2007) 4SCC 54 to canvases his submission that the candidate should possess all the qualifications on the date of the application. In case he does not possesses the qualifications on the last date fixed for submission of applications he would not be entitled for due consideration for the said selection. In the present case, it is not the case of the respondents that the petitioner did not fulfil the eligibility conditions on the last date of the application inasmuch he had submitted 4 other papers authored by him which were prior to the cut off date. The facts in the case of Ashok Kumar Sonkar are clearly distinguishable from the facts of the present case. Merely cancelling his appointment on the ground that on the date of submission of the form by the petitioner his API score was less than what was required, it is not made out. The petitioner had produced articles authored by an prior to the date of advertisement which were duly accepted by the selection committee. The panel of experts constituting the selection committee are the best to judge the qualifications of a candidate, who after due examination found the petitioner was fully qualified to be selected. There are no allegations of malafidely or bias against the panel of experts, hence their decision could not have been substituted by another body lacking the minimum/basic expertise in the matter. This Court is of the considered view that the petitioner fulfilled all the qualifications and the decision of the respondents authorities to the contrary is arbitrary, illegal and is liable to be set-aside.

69. Writ A No. 4307 of 2022 (Dr Adya Shakti Rai vs State of U.P and others):

(i).The respondent University had published an advertisement on 17/02/2014 inviting applications for various posts including the post of Associate Professor in Department of Visual Impairment, Faculty of Special Education. The petitioner was already working on the post of Lecture/Assistant Professor in the Department of Visual Impairment since 2009 in the respondent University and was desirous of being appointed on the post of Associate Professor and applied in pursuance of the aforesaid advertisement. Pursuant to her application, her candidature was duly examined by the selection committee appointed by the respondent University and also was interviewed, and other documents were duly examined. She was found qualified and hence duly selected. Recommendations of the selection committee were also approved by the Executive Council, and she was appointed on the post of Associate Professor in Department of Visual Impairment, Faculty of Special Education. The allegation against her is that she only had experience of 4 years and 7 months rather than 5 years which was required for appointment on the said post.

(ii). It has been submitted by the counsel for the petitioner that the said post was also advertised in 2010, and no one had applied for the said post, as they are very few people opting for the said course. Similarly, a fresh advertisement was published on 03/12/2012 where again no candidate applied for the said post. It is when again the advertisement was issued in 2014, that the petitioner who was already working on the post of lecturer/Assistant Professor applied. It also stated that as the respondent University did not have any faculty in the Department of visual impairment, and The Rehabilitation Council of India while giving approval for the said course noticed the shortcomings of the respondent University which to be removed immediately including appointment of adequate faculty. In order to remove the shortcomings as pointed out by the Rehabilitation Council of India, the post was advertised, and the petitioner was duly appointed. It is stated that the respondent University when it was at the verge of its approval being withdrawn, had appointed the petitioner on the post of lecturer/Assistant Professor. It is stated that even otherwise, while working on the post of Assistant Professor, the petitioner would have been promoted to the post of Associate Professor in due course of time, had she not applied for appointment in 2014, and it is further submitted that now after 7 years working on the post of Associate Professor services cannot be terminated merely on account of the fact that at the time of appointment or experience for short by 5 months.

(iii). Sri Sudeep Seth, Senior Advocate fairly submitted that though the petitioner did not have the requisite experience at the time of the appointment, but in case fresh advertisement is issued then she would be eligible for applying and being appointed on the said post.

(iv). Considering the rival contentions, it is noticed that the petitioner was appointed on the post of Assistant Professor in Department of visual impairment in the faculty of special education in their 2009, and at completed 4 years and 7 months of the said post, when she applied for the post of Associate Professor in the year 2014. Even though at the time of her appointment there was shortfall of certain period of experience, but admittedly she has been working of the said post for last 7 years and there are no complaints against, and she even fulfils all the requisite qualifications as on date. This court has also considered the fact that on 2 previous occasions the respondent University had advertised the post for appointment to the post of Associate Professor, but no applications were received, which clearly indicates that firstly, there were very few people taking up the said course and due to the paucity of individuals of the required academic qualifications, and secondly, that the approval given by the Rehabilitation Council of India was subject to appointment of adequate faculty. The respondent University more because of their immediate requirement appointed the petitioner on the post of Associate Professor appointed her to the said post after duly considering her experience. It is not a case that the petitioner has misrepresented, as even an application forms clearly indicates that she has experience of four years and seven months on the post of Assistant Professor .They cannot now be permitted to turn back and cancel the selection of the petitioner on the ground of lack of requisite experience. In the case of Mohd. Abul Lash Vs. State of U.P. and others, the Hon'ble Apex Court while considering a case where a person was not qualified at the time of appointment, but he acquired the requisite qualification later on, refused to interfere with the appointment and set aside the judgment and order dated 19.12.2014 passed by a Division Bench of this Court in Special Appeal (Defective) No.701 of 2014. In another case of Nahar Singh and others Vs. State of U.P. and others and Savitri Devi and others Vs. State of U.P. and others, Hon'ble Supreme Court in Civil Appeal No.3904 of 2013 held that once a person has continued in service for a long period, his continuance should not be disturbed. Following the aforesaid ratio of law laid down by Supreme Court a Division Bench of this Court in Special Appeal No.313 of 2015 had held that after long continuance in service, the appointment of a person to his service should not be disturbed.

(v). Even otherwise, when the aspect of cancellation of appointment was being considered the relevant facts should have been taken into account that on the date of such consideration the petitioner fulfilled all the educational qualifications including teaching experience. The deficiency if any, stood fulfilled and not taking this into account the respondents have acted in the most arbitrary manner. It is in the aforesaid circumstances this Court is of the considered view that the impugned order cancelling her selection and terminating the services clearly illegal and arbitrary.

70. Writ A No.4310 of 2022 (Dr. Mrityunjay Mishra Vs. State of U.P. and others)

(i).The petitioner had applied in pursuance to the advertisement No.17/2013-14 for the post of Associate Professor, Department of Hearing Impairment, Faculty of Special Education. It has been submitted that even prior to appointment as Associate Professor in the Department of Hearing Impairment, Faculty of Special Education the petitioner was already working on the post of Lecturer in the respondent -University since 25.8.2009 and prior to his joining the respondent University in 2009, he was working as Course Coordinator, a post which is equivalent to the post of Lecturer, in Research Education and Audiology Development Society, which is a society registered under the Societies Registration Act, 1860 and recognized by Rehabilitation Council of India from 15.9.2003 to 24.8.2009. According to the advertisement No.17 /2013-14 the essential qualification required for the post of is as under:-

i. Master's Degree in any discipline with not less than 50 % of marks ii. M.Ed. Degree in specific disability area with not less than 55 % of marks or an equivalent grade of B in 7-point scale or An Equivalent degree from a foreign university recognized by R.C.I. iii. Ph.D. in Education with research emphasis on Special Education.

iv. Should have completed at least 5 years of experience as Lecturer in specific disability area v. Should have completed at least one general orientation course and two refresher courses in education/special education of UGC.

(ii). Desirable Additional Qualification:

a. Publication pertaining to special education in indexed journals and research experience.

(iii). It has been submitted by learned counsel for the petitioner that in her application form she had provided complete details of education/experience and also that she has five years' experience as Lecturer in Specific Disability area. He has further submitted that the respondent-university while issuing show cause notice to the petitioner was of the opinion that the experience of the petitioner with the respondent-university on the post of Lecturer was only 4 years and 7 months and on the said basis had formed an opinion that the petitioner does not fulfil the requisite qualifications of having experience of 5 years as Lecturer in Specific Disability area. Petitioner's case is that she is fully eligible and qualified to be appointed on the post of Associate Professor in the Department of Hearing Impairment in as much as apart from working as Lecturer with the respondent -university for 4 years and 7 months she had worked as Post Coordinator in D.S.E. (Hearing Impairment) and B.Ed. (SEC) in the Research Education Audiology Development Society, Jaipur which is duly registered under the Societies Registration Act and recognized by the Rehabilitation Council of India. Her experience from 15.10.2003 to 24.8.2009 was supposed to be considered as according to clause 8.01 to 8.03 of the First Statute of 2009 it is provided that in the Faculty of Special Education the educational qualification would be what is prescribed by Rehabilitation Council of India. It has further been submitted that the petitioner had acquired Master Degree in 2008 and has two years' experience on the post of Associate Professor and even if the experience is counted from 2008, the petitioner would have had acquired five years' requisite qualification when she applied in pursuance of the Advertisement No.17/2013-14.

(iv). The candidature of the petitioner was duly considered by five member selection committee comprising of Vice Chancellor and its Chairman and three expert members from outside the university and one expert member from the university and in their collective wisdom the case of the petitioner was duly recommended for appointment on the post of Associate Professor in the Departmental of Hearing Impairment. The recommendations and qualifications were further duly considered by the Executive Council of the respondent university and after recommendations the petitioner was found to be fully qualified and eligible, offer of appointment was made.

(v). Sri Sudeep Seth has fairly submitted that though the inquiry committee was constituted for scrutinising the qualification of the persons appointed in pursuance of the Advertisement No.17/2013-14, it was of the opinion that the petitioner did not have requisite qualification at the time when the selection was made but subsequently at the time when the selection was sought to be cancelled the petitioner did have the experience in as much as she has continuously worked on the post of Associate Professor in the university since the date of his appointment in 2015 till the date of passing of the impugned order in 2022. It is noticed that even if the case of the respondent-university is accepted the petitioner was duly selected and duly appointed by the selection committee and even if for a moment the arguments of the university are accepted then also the services of the petitioner should not have been terminated on the ground that he fell short of experience of 5 months considering the fact that he has already working on the post of Lecturer in the university since 2009.

71. The petitioners have completed more than 8 years of service after having been appointed as Associate Professor in the University. In the case of Mohd. Abul Lash Vs. State of U.P. and others, the Hon'ble Apex Court while considering a case where a person was not qualified at the time of appointment, but he acquired the requisite qualification later on, refused to interfere with the appointment and set aside the judgment and order dated 19.12.2014 passed by a Division Bench of this Court in Special Appeal (Defective) No.701 of 2014. In another case of Nahar Singh and others Vs. State of U.P. and others and Savitri Devi and others Vs. State of U.P. and others, Hon'ble Supreme Court in Civil Appeal No.3904 of 2013 held that once a person has continued in service for a long period, his continuance should not be disturbed. Following the aforesaid ratio of law laid down by Supreme Court a Division Bench of this Court in Special Appeal No.313 of 2015 had held that after long continuance in service, the appointment of a person to his service should not be disturbed.

72. Considering the aforesaid facts this Court is of the considered opinion that the period the petitioner worked i.e. from 2003 to 2009 as Post Coordinator in READS is required to be counted as his experience as Lecture. The panel of experts having examined the said issue found the petitioner to be possessing the requisite experience. It is not subsequently open for a body not having requisite qualification or expertise in the subject to test the validity of the decision taken by expert body/selection committee and also considering the fact that on the date of passing of the impugned order the petitioner has the requisite qualifications there was no occasion for the respondent-university to have terminated his services after 7 years of his working in the respondent university as Associate Professor.

73. Writ A No.4312 of 2022 (Avanish Chandra Mishra Vs. State of U.P. and others):

The petitioner had applied post of Professor in the Department of history pursuant to the advertisement dated 17/02/2014. The essential qualification criteria of having completed minimum 10 years of teaching experience in university/college, and/or experience in research at the university/national level institutions/industries, including experience of guiding candidates for research at doctoral level. The petitioner submitted that he has worked on the post of Associate Professor from 01/01/2004 till 15/01/2014 which is for a period of more than 10 years at Jagatguru Rambadrachara Handicapped University, Chitrakoot on permanent basis. In this regard he fulfilled all the minimum qualifications. The controversy in the present case is with regard to the fact that while working as Associate Professor in the Jagatguru Rambadrachara Handicapped University, Chitrakoot the petitioner was also given additional charge for the post of Registrar. The respondent university has cancelled the appointment of the petitioner on the ground that when the petitioner worked on the post of Registrar, he could not have been involved in teaching and the period has worked as registrar has been deducted from his teaching experience. The petitioner submitted that only additional charge of the Registrar was given to him along with his teaching assignment which continued without any break. There is no material with the respondent university to indicate as to whether during this period the petitioner functioned as it wholetime registrar or was not involved in any teaching assignment. It is noticed that mainly on the basis of assumption, that while discharging his duties as registrar the petitioner would not have been involved in teaching, the experience so obtained on the said post has been reduced. In absence of any material and considering the fact that the petitioner was only discharging the functions of Registrar in addition to his teaching assignment as Assistant Professor, it cannot be said that during the period he was only discharging the duties of the registrar, so that his teaching experience cannot be counted. In this regard the contention of the petitioner has force and the arguments to the contrary accordingly rejected.

74. The 2nd ground for cancellation of the appointment is with regard to the publication of the research papers. In the advertisement of 2014 issued by the respondent university the qualifications required for the post of Professor in history was that a candidate should be "an eminent scholar with Ph.D qualifications in the concerned/Allied/relevant disciplines and published work of high-quality, actively engaged in research with evidence of published work with minimum of 10 publications as books and/or research/policy papers". The petitioner in his application form had claim to have published 8 research papers and authored 3 books. It is stated out of the 8 research papers 5 were already published and the remaining 3 were accepted for publication. The petitioner had mentioned that 2 books where already published and 1 book had been accepted for publication. At the time when the petitioner appeared for verification of documents the research papers and the book which had been accepted for publication had in fact been published and the proof of the same was produced before the selection committee. The petitioner had also submitted the proof with regard to the acceptance for publication along with the application form. He submitted that even if the papers are accepted for publication, the same is adequate proof of publication as per the norms of the University Grants commission. According to the guidelines for part-time research associate issued by the University Grants commission it is provided "(a) if yes, please indicate the number of papers published/accepted in standard referred journals (i) Indian (ii) foreign (a list of research papers published - accepted for publication should be attached. If, for e-publication, the title, names of all authors, name of journal, volume, number, year and pages. Enclose copies of papers and accepted papers. Photo copy of letter of acceptance from and it should be enclosed for paper accepted for publication."

75. It is seen that even according to the University Grants Commission if the research papers have been accepted for publication the same would be counted towards the research papers and due weightage has to be given to the same. In the present case 3 research papers had been accepted for publication, and consequently the same were to be counted towards the published works of the candidate. The respondents, not considering this aspect of the matter have acted arbitrarily and contrary to the guidelines issued by the University Grants commission and even otherwise the perusal of the impugned order does not contain any reason and it is not known whether this aspect was even taken account of either by the committee or by the Executive Council. The research papers authored by the petitioner which have been accepted for publication were required to be considered, which were duly taken into account by the selection committee but arbitrarily not considered by the inquiry committee and consequently there was no infirmity/deficiency in the qualification of the petitioner in this regard.

76. It has further been contended that even the API score has been wrongly calculated by the respondent university leading to cancellation of his appointment. The petitioner has stated that he has an API score of 469.5 which is more than the required API score. The details of publications have been enclosed by the petitioner which clearly indicate his API score. The selection committee has duly looked into the API score of the petitioner and was satisfied that the same was more than the minimum required to score as per the University Grants commission norms and consequently he was held to be selected. The respondents have not indicated is what manner the API score of the petitioner is below the minimum required. Considering the fact that API score of the petitioner is more than the minimum required, the finding to the contrary recorded by the respondents is clearly illegal and arbitrary.

77. From the aforesaid discussions it is clear that the petitioner was fully qualified, his qualifications were duly looked into by the selection committee recommended his candidature for appointment to the post of Professor in History. There is no reason for a review of his qualifications after a period of 7 years, in absence of any allegations of fraud and misconduct have been having been committed by the petitioner, the cancellation of his selection is clearly illegal and arbitrary and libel to be set aside.

78. The petitioners have assailed the order of termination on the ground that there was violation of principles of natural justice, while the respondent university on the other hand have submitted that as the petitioners do not possess the minimum eligibility qualifications and hence no purpose would have been served by giving an opportunity for hearing. Having duly considered the rival contentions this Court is of the considered view that it is only after giving an opportunity of hearing that the decision can be arrived at as to whether the petitioners fulfilled all the qualifications or not. By declaring that they do not fulfil the qualifications, would amount to prejudging the issue which is not permissible. In the case of Nisha Devi v. State of H.P., (2014) 16 SCC 392 the Supreme Court held:-

5. Trite though it is, we may yet again reiterate that the principle of audi alteram partem admits of no exception, and demands to be adhered to in all circumstances. In other words, before arriving at any decision which has serious implications and consequences to any person, such person must be heard in his defence. We find that the High Court did not notice the violation and infraction of this salutary principle of law. Accordingly, on this short ground, the impugned judgments and orders require to be set aside, and are so done. The matter is remanded back to the Divisional Commissioner for taking a fresh decision after giving due notice to the appellant and affording her an opportunity of being heard. The Divisional Magistrate, Kullu, shall complete the proceedings expeditiously, and not later than six months from the date on which a copy of this order is served on him."

79. As we have already discussed the individual cases and this Court is of the considered view that all the petitioners are duly qualified and their services could not be terminated. It was mandatory for the respondents to have followed the proper procedure and the rules and to have given them proper opportunity of hearing before terminating their services. As stated by the Supreme Court in the cases referred to above the principle of natural justice do not have any exceptions, and hence, in the present case also proper opportunity of hearing should have been given, and the procedure prescribed should have been followed. It is only where without any inquiry and from bare perusal of the record, it is abundantly apparent that a person does not hold qualifications then in those rare cases the applicability of the principles of natural justice may be dispensed with but where inquiry has to be conducted to determine the issue and it is not apparent from bare perusal of the records as to whether the candidate fulfils the qualifications and the matter is debatable then no order should be passed without giving due opportunity of hearing to the concerned person. In the present case, after examining the individual cases, and also considering the fact that the petitioners have been permitted to continue for 7 years, it cannot be said that principles of natural justice could have been given a go-bye and the arguments of the respondents in this regard are bereft of any reasons and are accordingly rejected. As we have already discussed neither was the procedure followed in as much as neither the Rules of 1999 were followed nor the procedure prescribed in the statutes 9.07 was followed, but a new procedure was devised which is not prescribed anywhere nor was followed. Copy of the enquiry report was not given to the petitioners, and the authority which finally decided the question regarding the eligibility qualifications never given them an opportunity of hearing, and consequently we have no hesitation in holding that the entire procedure was illegal and arbitrary and in clear violation of principles of natural justice.

80. This Court having looked into the educational qualifications and the eligibility criteria required for appointment of the petitioners for various posts, is of the considered view that there is no deficiency in their educational qualifications or experience coupled with the fact that all these facts were duly inquired into by the expert panel of the selection committee who after being satisfied recommended the case of the petitioners for appointment. There is no allegations against the selection committee of malafide, or of not following the procedures etc. The recommendations of selection committee were duly considered and approved by the Executive Council of the respondent university and subsequently appointment letters were issued. After one year of the working they were confirmed on their respective posts. At this point also the respondents would have looked into all these matters. In the meanwhile, mainly because there were certain allegations against the former Vice Chancellor, all the appointments made under his regime were sought to be scrutinised after a period of 7 years. Mainly because the petitioners were appointed during the period of particular Vice Chancellor, and there were certain allegations against him, cannot itself lead to any conclusion that the appointment made under his regime were illegal and arbitrary. Such a sword of Damocles, that an appointment can be cancelled anytime, cannot be left hanging at the head of the selected candidates in any institution during their entire tenure. Once an appointment is duly made, then in case there is any shortcomings in the said selection which is of such a nature that the same cannot be condoned, action has to be taken expeditiously soon after the said selections is made in accordance with law. In the present case, there is no allegation that the petitioners had misrepresented about their educational qualifications or were somehow responsible for getting themselves appointed. In absence of any mistake or misrepresentation having been committed by the petitioners, whether the services can be terminated after long period of seven years after the due selection, is a prime issue before this Court in the present writ petitions.

81. To answer this question it would be relevant to go through the judgement of the Supreme Court in the case Vikas Pratap Singh v. State of Chhattisgarh, (2013) 14 SCC 494 which has held as under:-

"22. The pristine maxim of fraus et jus nunquam cohabitant (fraud and justice never dwell together) has never lost its temper over the centuries and it continues to dwell in spirit and body of service law jurisprudence. It is settled law that no legal right in respect of appointment to a said post vests in a candidate who has obtained the employment by fraud, mischief, misrepresentation or mala fide. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi [(1990) 3 SCC 655 : 1990 SCC (L&S) 520 : (1990) 14 ATC 766] , S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1] and Union of India v. M. Bhaskaran [1995 Supp (4) SCC 100 : 1996 SCC (L&S) 162 : (1996) 32 ATC 94] .) It is also settled law that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardising the interests of the meritorious and worthy candidates. However, in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, this Court has taken a sympathetic view in the light of various factors including bona fide of the candidate in such appointment and length of service of the candidate after such appointment (see Vinodan T. v. University of Calicut [(2002) 4 SCC 726 : 2002 SCC (L&S) 606] ; State of U.P. v. Neeraj Awasthi [(2006) 1 SCC 667 : 2006 SCC (L&S) 190] ).

23. In Girjesh Shrivastava v. State of M.P [(2010) 10 SCC 707 : (2011) 1 SCC (L&S) 192] , the High Court had invalidated the rule prescribing selection procedure which awarded grace marks of 25 per cent and age relaxation to the candidates with three years' long non-formal teaching experiences as a consequence of which several candidates appointed as teachers at the formal education institutions under the said rule stood ousted. This Court while concurring with the observations made by the High Court kept in view that upon rectification of irregularities in appointment after a considerable length of time an order for cancellation of appointment would severely affect economic security of a number of candidates and observed as follows: (SCC p. 714, para 31) "31. ... Most of them were earlier teaching in non-formal education centres, from where they had resigned to apply in response to the advertisement. They had left their previous employment in view of the fact that for their three-year long teaching experiences, the interview process in the present selection was awarding them grace marks of 25%. It had also given them a relaxation of 8 years with respect to their age. Now, if they lose their jobs as a result of the High Court's order, they would be effectively unemployed as they cannot even revert to their earlier jobs in the non-formal education centres, which have been abolished since then. This would severely affect the economic security of many families. Most of them are between the age group of 35-45 years, and the prospects for them of finding another job are rather dim. Some of them were in fact awaiting their salary rise at the time of quashing of their appointment by the High Court."

Therefore, mindful of the aforesaid circumstances this Court directed non-ouster of the candidates appointed under the invalidated rule.

24. In Union of India v. Narendra Singh [(2008) 2 SCC 750 : (2008) 1 SCC (L&S) 547] this Court considered the age of the employee who was erroneously promoted and the duration of his service on the promoted post and the factor of retiring from service on attaining the age of superannuation and observed as follows: (SCC p. 758, paras 35-36) "35. The last prayer on behalf of the respondent, however, needs to be sympathetically considered. The respondent is holding the post of Senior Accountant (Functional) since last seventeen years. He is on the verge of retirement, so much so that only few days have remained. He will be reaching the age of superannuation by the end of this month i.e. 31-12-2007. In our view, therefore, it would not be appropriate now to revert the respondent to the post of Accountant for very short period. We, therefore, direct the appellants to continue the respondent as Senior Accountant (Functional) till he reaches the age of superannuation i.e. up to 31-12-2007. At the same time, we hold that since the action of the authorities was in accordance with statutory rules, an order passed by the Deputy Accountant General cancelling promotion of the respondent and reverting him to his substantive post of Accountant was legal and valid and the respondent could not have been promoted as Senior Accountant, he would be deemed to have retired as Accountant and not as Senior Accountant (Functional) and his pensionary and retiral benefits would be fixed accordingly by treating him as Accountant all throughout.

36. For the foregoing reasons, the appeal is partly allowed. Though the respondent is allowed to continue on the post of Senior Accountant (Functional) till he reaches the age of retirement i.e. 31-12-2007 and salary paid to him in that capacity will not be recovered, his retiral benefits will be fixed not as Senior Accountant (Functional) but as Accountant. In the facts and circumstances of case, there shall be no order as to costs."

25. This Court in Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] although recorded a finding that appointments given under the "wait list" were not in accordance with law but refused to set aside such appointments in view of length of service (five years and more).

26. In Buddhi Nath Chaudhary v. Abahi Kumar [(2001) 3 SCC 328 : 2001 SCC (L&S) 589 : (2001) 2 SCR 18] even though the appointments were held to be improper, this Court did not disturb the appointments on the ground that the incumbents had worked for several years and had gained experience and observed: (SCC p. 331, para 6) "6. ... We have extended equitable considerations to such selected candidates who have worked in the post for a long period...."

(See M.S. Mudhol v. S.D. Halegkar [(1993) 3 SCC 591 : 1993 SCC (L&S) 986 : (1993) 25 ATC 91 : (1993) 2 LLJ 1159] and Tridip Kumar Dingal v. State of W.B. [(2009) 1 SCC 768 : (2009) 2 SCC (L&S) 119] )

27. Admittedly, in the instant case the error committed by the respondent Board in the matter of evaluation of the answer scripts could not be attributed to the appellants as they have neither been found to have committed any fraud or misrepresentation in being appointed qua the first merit list nor has the preparation of the erroneous model answer key or the specious result contributed to them. Had the contrary been the case, it would have justified their ouster upon re-evaluation and deprived them of any sympathy from this Court irrespective of their length of service.

28. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list.

29. Accordingly, we direct the respondent State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation.

30. We clarify that their appointment shall for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment.

31. The order passed by the High Court shall stand modified to the above extent. Appeals disposed of. There shall be no order as to costs."

82. Applying the principles laid down by the Supreme Court in the case of Vikas Pratap Singh (supra) to the facts of the present case this Court of the considered opinion that after permitting a person to continue in service for a long time, the selection cannot be cancelled, or services cannot be terminated due to some infirmities in the selection, and accordingly the case of the petitioners are fully covered by the judgement of the Supreme Court as discussed above.

83. In view of the above, the writ petitions stand allowed. The impugned orders dated 06.07.2022 with respect to all the petitioners challenged in all the writ petitions, forming part of the bunch, are set aside. The respondent University is directed to reinstate the petitioners forthwith. Considering the fact that they have been working for the last 6 to 7 years and the orders of termination have been held to be illegal and arbitrary, they are entitled to all consequential benefits including the back wages from the date of termination of their services.

(Alok Mathur, J.) Dated: 08.05.2023.

RKM/Anurag

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