Gujarat High Court
Dr vs Gujarat on 12 August, 2008
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
Print
SCA/832520/2008 19/ 19 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION NO. 8325 OF 2008
======================================
DR.
LOKENDRA MALIK - Petitioner(s)
Versus
GUJARAT
NATIONAL LAW UNIVERSITY & ORS. - Respondent(s)
======================================Appearance
:
Mr. Dipak R. Dave for
Petitioner(s).
Ms. Dharmishta Rawal for Respondent(s) : 1.
Mr.
Niraj Soni, AGP for the respondent-State.
None
for Respondent(s) : 2 - 14.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/08/2008
ORAL
ORDER
The present petition has been filed by the petitioner under Article 226 of the Constitution of India for the prayers, inter alia, to quash and set aside the decisions dated 30th May, 2008 of respondent No.1 and 16th May, 2008 of the Executive Council of respondent No.1. It is also prayed to direct respondent No.1 to continue the petitioner in service as Assistant Professor of Law with continuity of service and all consequential benefits, etc. It is further prayed to hold and declare that respondent Nos.3 to 14 are not possessing necessary qualification as per the Rules of University Grants Commission and since their appointments are illegal, they have no authority to continue on the post.
2. The facts of the case briefly summarised are that the petitioner had been serving as an Assistant Professor of Law, who has been discontinued from the Gujarat National Law University ( GNLU for short) by the impugned order dated 30th May, 2008 passed by respondent No.1, which has been challenged herein on the ground that it is arbitrary and illegal. The petitioner has also challenged the appointments of respondent Nos.3 to 14 as absolutely illegal and in flagrant violation of the University Grants Commission Act, 1956 ( UGC Act for short) and the Rules and Regulations under the said Act. The petitioner had been appointed as an Assistant Professor of Law by GNLU, which is established under the Gujarat National Law University Act, 2003. The petitioner, who had applied for the post of Assistant Professor of Law pursuant to the advertisement at Annexure-B, was called for the interview and he was interviewed on 20th January, 2008 by the Selection Committee of respondent No.1. The petitioner was thereafter offered the appointment letter dated 27th January, 2008 (Annexure-C), appointing him to the post of Assistant Professor of Law. Thereafter, he joined the services with respondent No.1 with effect from 3rd February, 2008.
3. It is the case of the petitioner that as he was popular amongst the students which the respondents did not like and since they did not want the petitioner to overshadow them in teaching, respondent No.6, who was also appointed along with the petitioner, as an Assistant Professor of Law, started causing harassment to the petitioner. It is also averred that though he had informed to respondent No.3 about the same, no action was taken. It is also contended that he came to know that respondent No.6 is not qualified and eligible for the post of Assistant Professor of Law as per the UGC norms. He, therefore, applied for the information under the Right to Information Act, 2005 on 18th April, 2008, which annoyed respondent No.6. Therefore, at the instance of respondent No.6, as he instigated certain students to file false complaints against the petitioner, few girl students filed a complaint against the petitioner on the last date of examination, i.e. on 2nd May, 2008. It is averred that the Committee constituted to investigate the said complaint found the allegations vague and false as per the information available to the petitioner. The petitioner was called and explained everything before the Committee and thereafter, the complaint has been filed. It is averred that respondent No.3 was also not holding the qualification and eligibility for the post of Associate Professor of Law at the time when he applied for the post and therefore, the petitioner had sought for information under the Right to Information Act, 2005. Thereafter, the petitioner was provided with the details on 10th June, 2008 (Annexure-E). It is, therefore, contended that neither respondent No.3 nor respondent No.6 were holding necessary eligibility and qualification for being appointed to the post and therefore, they joined the hands together and harassed the petitioner and they tried to pressurise the petitioner for giving the resignation from the services. However, as the petitioner started fighting calling for the further information under the RTI Act, he has been victimised. It is also contended that as regards the qualification of respondent No.6, he has also made representation to the Honourable Visitor, who is the Honourable the Chief Justice of India, on 12th May, 2008, which is at Annexure-G. However, it is contended that instead of taking the action against respondent No.6, the petitioner has been victimised. It has been specifically contended that the Executive Council of respondent No.1 in its meeting dated 16th May, 2008 decided to discontinue the services of the petitioner with immediate effect without showing any reason, which is at Annexure-H. It is, therefore, contended that the petitioner was not even heard before passing such resolution and no reasons were given for taking such decision by the Executive Council. It has been contended that the petitioner has been victimised at the instance of respondent Nos.3 and 6 and the petitioner, who is having good academic record, has been discriminated and the Executive Council of respondent No.1 has adopted pick and choose policy and the decision has been taken at the instance of respondent Nos.3 and 6. Further, the averments are also made in paragraph 2.16 that representations made by him to the Honourable the Chief Justice of India and Honourable Mr. Justice C. K. Thakkar, who is a Member of General Council, GNLU, have not been considered and the same are produced at Annexures I and J. It is also contended that the Executive Council has itself taken the arbitrary decision at the instance of respondent Nos.3 and 6 and has given premium to the ineligible persons. Thus, the present petition has been filed challenging the decision to discontinue the petitioner as well as to question the appointments of respondent Nos.3 to 14 on various grounds stated in the petition as well as submitted in detail at the time of hearing of the petition.
4. Mr. Dipak Dave, learned Advocate for the petitioner, has submitted referring to the pleadings that the petitioner has been victimised at the hands of respondent Nos.3 and 6. He has referred to the petition to point out that the respondents, who have been appointed, are not possessing necessary qualification and in spite of that, they have been continued whereas the petitioner, who is eligible and qualified, has been discontinued at the instance of respondent Nos.3 and 6. It was strenuously submitted that respondent Nos.3 and 6 have joined the hands and at their instance, respondent No.1 has taken the decision to discontinue the petitioner. He also submitted that at the instance of respondent No.6, respondent No.3 has, during the meeting of the Executive Council, persuaded the Executive Council to take such a decision. It was submitted that what has transpired during the meeting, he would not have known, but, he apprehends that at the instance of respondent Nos.3 to 6, such a decision has been taken and he is victimised. Therefore, it was strenuously submitted that such a decision is arbitrary and it is taken by the Executive Council at the instance of respondent No.3, who is the Ex-Officio Member of the Executive Council. It has also been contended that before passing the resolution of the Executive Council, no opportunity has been given to the petitioner and therefore, it is arbitrary, illegal and violative of Article 14 of the Constitution of India. In support of this submission, the learned Advocate has referred to and relied upon the judgement of the Honourable Apex Court in the case of State of Orissa vs. Dr. (Miss) Binapani Devi, reported in AIR 1967 SC 1269 and emphasised that even the executive orders are required to be supported by reasons, which have not been given in the impugned order. He also referred to a judgement of the Honourable Apex Court in the case of National Textile Workers' Union & Ors. vs. P. R. Ramakrishnan & Ors., reported in (1983) 1 SCC 228 and submitted that if the order has any civil consequence, then, the reasons have to be given and also an opportunity has to be given. He emphasised and submitted that in the facts of the present case, no reasons are given nor any opportunity has been given though the services of the petitioner are discontinued or terminated and therefore, the impugned decision is arbitrary and violative of Article 14.
4.1 As the Court had raised the query about locus standi of the petitioner to question the appointments of respondents, referring to that aspect, he submitted that the respondent No.1-University is established under the Gujarat National Law University Act, 2003 with the object of having excellence in the field of knowledge of law, law reforms and therefore, the students and research scholars are trained for developing such skills, and since the appointments of respondent Nos.3 to 14 are given in utter disregard to the norms established by the UGC Act, he has challenged their appointments. Mr. Dave has submitted that what avowed the objects with which the University has been established and had been started and functioning with progress, but, the merit is compromised and facts are suppressed by respondent No.3 before the Executive Council, which has resulted in the impugned order of discontinuation of the petitioner. He emphasised that the Executive Council may not have been presented with all the facts and all the facts may not have been brought to the notice of the Executive Council. Therefore, he has challenged the appointments of the respondents. In support of this submission, he has referred to and relied upon the judgement of the Honourable Apex Court in the case of Dr. (Mrs.) Meera Massey vs. Dr. S. R. Mehrotra & Ors., reported in AIR 1998 SC 1153. He also submitted that the rules and regulations of the University Grants Commission are required to be followed and if that is taken into consideration, none of the respondents is eligible and qualified. Referring to the eligibility criteria, Mr. Dave also referred to the judgement of the Karnataka High Court at Bangalore in the case of Sachidananda K. & Ors. Vs. Bangalore University & Ors., in Writ Petition No.19399 of 2005 and the observations made therein, for which he also referred to the provisions of UGC Act. He emphasised that in that case also, the appointment of the respondents therein in the Faculty of Law itself was questioned on the ground of National Eligibility Test for the Lecturership and also other qualifications as per the UGC Act, which prescribes the minimum qualification for the appointment to the post. He also pointedly referred to the excerpts from the University Grants Commission (Minimum Qualification required for the Appointment and Career Advancement of Teachers in University and Institutions affiliated to it) Regulations, 2000, which has been quoted and referred to in that judgement for supporting his submissions. He also referred and relied upon a judgement of the High Court of Rajasthan in the case of Krishna C. Mathur vs. The University of Jodhpur and Ors. in S. B. Civil Writ Petition No.160 of 1978.
5. Ms. Dharmistha Rawal, learned Advocate appearing for the respondent-GNLU, has submitted that the Court may consider in brief the submissions or points as formulated hereunder:
(i) The petition deserves to be dismissed on the ground of suppressio veri and suggestio falsi.
(ii) Disputed questions of facts.
(iii) The petition is filed to settle the personal score.
She also pointedly referred to the averments made in the petition to highlight some of the allegations made qua respondent Nos.3 and 6 as well as respondent No.1 and also the Executive Council as well. She also referred to the letter of appointment dated 27th January, 2008 (Annexure-C) and submitted that as reflected in this letter, the post is offered to the petitioner on probation initially for such period as may be determined by the Executive Council. She emphasised that the appointment of the petitioner itself was subject to the terms and conditions, which include certain specific clauses. Clause-5 of the appointment letter reads as under:
5. Your employment with the University during probation may be terminated without assigning any reasons at one month's notice or salary in lieu thereof and you may also have a corresponding right to terminate it at one month's notice or on payment of salary in lieu thereof.
After probation, the termination period will be of three months.
She also submitted that as per the GNLU Act, the appointment is by the Executive Council and the powers are delegated to respondent No.1 by the Executive Council. For that purpose, she referred to the communication dated 17th July, 2008, which is the information provided under the Right to Information Act, as requested by the petitioner, and more particularly, question No.2 has a reference to the very aspect regarding the power and authority of the Director In-charge for the appointment, which reads as under:
Q.2 The power and authority of the Director-In-Charge for the appointment of teaching staff and whether the Director-In-Charge is having power to issue the appointment orders without the approval of the Executive Council? Kindly furnish the details.
Ans.2 The Director has the power and the authority for making the appointments of the teaching staff as per:
The Gujarat National Law University Act, 2003 under section 22, the power is delegated.
The Resolutions of the Statutory Bodies at their respective meetings.
The appointments so made are on the recommendations of the Selection Committee and are subject to the approval of the Executive Council.
It is also clarified that the Executive Council guides the recruitment of the faculty. Therefore, Ms. Rawal submitted that the appointment is subject to the approval of the Executive Council as it has the powers and authority to make the appointment, which powers are delegated to respondent No.1 subject to the approval by the Executive Council on completing the process of the recruitment. Therefore, she submitted that the submissions that he has been victimised at the instance of respondent Nos.3 and 6 are misconceived as it is the decision taken by the Executive Council and not any individual or respondent Nos.3 and 6. She also referred to constitution of the Executive Council which consists of the Honourable Visitor - Honourable the Chief Justice of India and also the Honourable Judges of the Supreme Court and High Court and other dignitaries. She also referred to the representation made by the petitioner dated 3rd June, 2008 (Annexure-I) and pointedly drawn the attention as to the language used and the manner in which the allegations are made. She emphasised the following paragraph:
My representation to the Visitor - Honourable the Chief Justice of India dated 12.5.2008 was retaliated by the decision stated to have been taken on 16.5.2008 by not approving my appointment, without disclosing which parameter, I am not meeting with.
Thereafter also, there are other allegations that my representation is against the decision of the Executive Council in not approving my appointment and circumstances leading to such decision .
5.1 Ms. Rawal also referred to and relied upon a judgement of the Honourable Apex Court in the case of Sadananda Halo & Ors. vs. Momtaz Ali Sheikh & Ors., reported in (2008) 4 SCC 619, wherein the earlier judgement in the case of Union of India vs. Bikas Kuanar, reported in (2006) 8 SCC 192 was relied upon and in the said judgement it was observed that the Selection Committee recommends selection of a person, the same cannot be presumed to have been done in a mechanical manner in absence of any allegation of favouritism or bias. A presumption arises in regard to the correctness of the official act. The party who makes any allegation of bias or favouritism is required to prove the same. In the instant case, no such allegation was made. The selection process was not found to be vitiated. No illegality was brought to the Court's notice. Therefore, Ms. Rawal submitted that as it was an offer for the appointment on contract basis subject to the approval of the Executive Council, the petitioner cannot make a grievance if he is terminated simplicitor. It was submitted that there is no question of giving any opportunity of hearing. She also referred to the pleadings and submitted that admittedly, there were some complaints made by the girl students about the conduct of the petitioner, for which the Committee was formed. However, to avoid any further consequences, the Executive Council, on the basis of the material, has decided to discontinue the services by passing the impugned resolution, which cannot be said to be arbitrary. She, therefore, submitted that the submissions made by the petitioner are misconceived. She also submitted that the petitioner has no locus standi to question the appointment of others and in support of this submission, she has, referring to and relying upon the judgement of the Honourable Apex Court in the case of Sadananda Halo (supra), pointed out the observations in paragraph 59 that it is also a settled position that the unsuccessful candidates cannot turn back and assail the selection process. There are of course exceptions carved out by this Court to this general rule.
Therefore, referring to these observations and also similar observations made in the judgement in the case of Trivedi Himanshu Ghanshyambhai vs. Ahmedabad Municipal Corporation & Ors., reported in (2007) 8 SCC 644, wherein also, observations have been made with regard to locus standi to challenge the appointments of others on the ground that they did not have requisite experience or qualification. Similarly, she has also referred and relied upon the judgement of the Honourable Apex Court in the case of B. Srinivasa Reddy vs. Karnataka Urban Water Supply & Drainage Board Employees' Assn. & Ors., reported in (2006) 11 SCC 731 and submitted that one is required to have reference to the nature of the appointment in the organisation and therefore, the present petition may be dismissed.
6. In view of the rival submissions, it is required to be considered that whether the impugned decision of discontinuation of the services of the petitioner by the Executive Council by the impugned resolution dated 16th May, 2008 can be said to be arbitrary and violative of Article 14 of the Constitution of India. For appreciating the submissions, few admitted facts are required to be considered. It is not in dispute that the Executive Council is having absolute authority or power to make the appointments and for the purpose of recruitment process, the powers are delegated to respondent No.1, but, the appointments shall be subject to the approval of the Executive Council. The petitioner, who had applied, pursuant to the advertisement, was selected and offered an appointment as an Assistant Professor of law as per the appointment letter dated 27th January, 2008 subject to the terms and conditions. As highlighted and pointed out, Clause (5) makes it clear that the services could be terminated without assigning any reasons at one month s notice or salary in lieu thereof and the incumbent like the petitioner had also a corresponding right to leave with one month s notice or on payment of salary in lieu thereof. After the appointment of the petitioner in January-2008 and as reflected, admittedly, in the petition as well as in the representation made by the petitioner at Annexure-I, there were some complaints by the girl students, for which, admittedly, a committee was formed and on the basis thereof, the Executive Council has ultimately taken the decision to discontinue the petitioner after the academic term by the impugned resolution at Annexure-A. Therefore, the short point or issue which is required to be focused is can it be termed that such decision taken by the Executive Council is arbitrary or violative of Article 14 of the Constitution of India. Though in the petition, averments and allegations have been made with regard to bias or prejudice by respondent Nos.3 and 6 inasmuch as initially, he seems to have a quarrel with respondent No.6 and had questioned his eligibility by calling the information under the Right to Information Act. Thereafter, the petitioner has again questioned the eligibility and qualification of respondent No.3 by seeking the information under the Right to Information Act. Thereafter, the allegations are made that he has been victimised at the instance of respondent Nos.3 and 6, the decision is taken admittedly by the Executive Council and therefore, he has made the allegations that respondent No.3 had either misinformed or not put the facts properly before the Executive Council, resulting in the impugned decision. In other words, it also imputes that the Executive Council has also arbitrarily taken the decision and it has been specifically averred so, as discussed above, in paragraph 2.18 that the Executive Council has taken arbitrary decision at the instance of respondent Nos.3 to 6 without giving any opportunity. The Executive Council, as discussed above, is comprising of various dignitaries, namely, Honourable Visitor - Honourable the Chief Justice of India, who is the patron in chief of the institute, and Honourable Judges of the Supreme Court and High Court and others, who are the members of the Executive Council. One fails to understand how respondent No.3 can veil the power or authority over all the members of the Executive Council so that the Executive Council is carried away at the instance of respondent No.3. Therefore, merely by making the allegations, the action does not become arbitrary or violative of Article 14. The Honourable Apex Court has observed in its judgement in the case of Sadananda Halo & Ors.
(supra) that the allegations are required to be proved or at least prima facie established.
7. Though much emphasis was given on the aspect of reasons having been not given or no opportunity has been given to the petitioner, the same is also without any merit. It is evident that Clause 5 of the appointment letter itself makes it clear that the appointment is subject to the approval of the Executive Council. It further makes it very clear that the services could be discontinued by one month's notice, as pointed out by the learned Counsel, Ms. Rawal, on the basis of the communication, which was addressed in response to the information sought for by the petitioner himself regarding the power and authority. Question No.2 and answer thereto makes it very clear that such authority or power rests with the Executive Council. It is, in these circumstances, that the question of giving an opportunity to the petitioner while discontinuing the services does not arise. At this juncture, the observations made by the Honourable Apex Court in its judgement in the case of A.M.S. Sushanth vs. M. Sujatha, reported in (2000) 10 SCC 197 are required to be appreciated. The Court has observed as under:
Natural justice has been variously defined. It is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of mind. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi- judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
Moreover, a useful reference can be had to the observations made by the Apex Court in its judgement in the case of Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corporation Ltd., Haldia & Ors., reported in (2005) 7 SCC 764, wherein the Honourable Apex Court has observed thus:
The principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straight-jacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. The approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than 'precedential'.
8. It is also well settled that for determining as to whether the decision is arbitrary or illegal, one is required to have reference to the decision making process, which would be relevant material. In the facts of the present case, the decision has been taken by the Executive Council on the basis of the material. Therefore, it is the decision based on the material having been considered objectively by a collective body like the Executive Council. It is in these circumstances that the submissions about the victimisation are required to be appreciated and considered. As observed by the Honourable Apex Court in the case of B. Srinivasa Reddy (supra), the burden of establishing the mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved and the very seriousness of such allegations demands proof of a higher order of credibility. Therefore, when the allegations are made that even the Executive Council has taken the decision at the behest and at the instance of respondent Nos.3 and 6, the allegations by mere words would not be sufficient and the petitioner who is otherwise well versed in law cannot be permitted to have such allegations without any material in support thereof.
9. As the appointment order itself, as stated above, clearly suggests that it is a tenure appointment subject to the approval by the Executive Council and if the Executive Council has not found it fit or desirable to approve the appointment itself by the impugned decision, it cannot be said that it is arbitrary or violative of rules of natural justice. If the appointment itself is according to the clause in the appointment order which clearly suggests about bilateral or mutual rights to terminate or discontinue the services, which would be again subject to the approval by the Executive Council, and the Executive Council has not approved the appointment itself and decided to discontinue the services, the same cannot be said to be arbitrary. There is no question of violation of the rules of natural justice or having not passed any reasoned order inasmuch as it is not punitive and it is simply non-approval of the appointment based on the material before the Executive Council, deciding about the suitability of the candidate like the petitioner. Therefore, as reflected in the appointment letter itself, reserving the right to discontinue during the probation, on one month s notice to either side, cannot be construed in a manner that even such appointment has to be continued per force, which in turn frustrates the said very clause in the appointment or agreement. Therefore, the petitioner, having accepted the appointment, cannot approbate and reprobate, that he would accept the order or appointment, but, wants to ignore the relevant clause.
10. As regards the aspect of locus standi, though the learned Advocate for the petitioner has referred to the judgement of the High Court of Karnataka with regard to the appointment of Faculty of Law questioned by the petitioner, it is, however, to be considered in the background of the facts and circumstances and it will not have any application qua the facts of the present case because, as observed in the judgement of the Honourable Court which has been referred to by the learned Counsel Ms. Raval reported in B. Srinivas Reddy (supra) that it cannot be challenged by the person like the petitioner to redress his personal grievance.
11. In view of the aforesaid discussion, this Court is of the opinion that the present petition deserves to be dismissed in limine. Hence, the same is dismissed.
[Rajesh H. Shukla, J.] kamlesh* Top