Allahabad High Court
Dr. Sunita Chandra (Now S/S) vs U.O.I. Thru. Secy. Ministry Of Human ... on 17 April, 2019
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved on: 23.01.2019
Delivered on:17.04.2019
Court No. - 24
Case :- SERVICE SINGLE No. - 25802 of 2017
Petitioner :- Dr. Sunita Chandra (Now S/S)
Respondent :- U.O.I. Thru. Secy. Ministry Of Human Resource Development &
Counsel for Petitioner :- Sameer Kalia,Srideep Chatterjee
Counsel for Respondent :- A.S.G.,Amit Bose,Dr.V.K.Singh,Nilaya Gupta,Rajesh Tiwari
Hon'ble Irshad Ali,J.
(1) Heard Sri S.K. Kalia, learned Senior Advocate assisted by Sri Sameer Kalia, learned counsel for the petitioner who concluded the argument finally, Sri Anil Tiwari, learned Senior Advocate assisted by Dr. V.K. Singh, learned counsel for the respondents and Sri Amit Bose, learned counsel for the respondent No.5.
(2) The Petitioner while working as Deputy Registrar on a substantive post in Banaras Hindu University (BHU) applied for being appointed as Registrar in Babasaheb Bhimrao Ambedkar University, Lucknow (for short, 'BBA University') and was accordingly selected and appointed on tenure basis.
(3) There are certain undisputed facts therefore, it would be appropriate to set-out the same before this Court proceeds to deal with the arguments advanced on the issues raised in this petition. The post of a Registrar is that of an Officer of the University as defined under Section 10 (5) of the Babasaheb Bhimrao Ambedkar University Act, 1994 (for short, "Act of 1994").
(4) The Registrar is appointed as per the Statutes of the University framed under Section 27 of the 1994 Act and contained in the second Schedule. Clause 5 of the second Schedule prescribes the mode of appointment of the Registrar.
(5) The University under the Statutes has the power to appoint an Officer for a fixed tenure and as indicated above, the Registrar has to be appointed for a term of five years with a future eligibility of re-appointment. The selection is through a Selection Committee.
(6) This appointment is to be made by the Board of Management for a fixed tenure as is provided for in Statute - 22.
(7) Thus, the appointment is not an appointment on deputation but is a tenure appointment under the aforesaid process.
(8) An advertisement was issued for appointment on the post of Registrar. The advertisement clearly prescribes the conditions, under which the appointment is to be made. Advertisement No.1 of 2013 dated 28.06.2013 is for non teaching posts with a stipulation that it shall be subject to Ministry of Human Resource Development and UGC regulations framed from time to time. The same specifically prescribes the post to be a tenure post for five years.
(9) What is noticeable in the said advertisement is that there are several posts advertised including that of Finance Officer which is also indicated as a 'tenure post' for 5 years and similar is the status of Controller of Examination. However, at Sl. No.5, the post of Internal Audit Officer has been described as on deputation basis. Thus, the posts that were to be filled on 'tenure basis' and 'deputation basis' have been separately indicated in the advertisement. The post of Registrar has not been indicated to be filled up by way of deputation. The terms and conditions of the advertisement described as General Instructions and Essential Information are contained at the tail end of the advertisement. Clauses 20 and 21 are important to understand the significance of the word 'deputation' in the context in which the present arguments have been advanced.
(10) That the Board of Management in its 46th meeting held on 20.11.2013, approved the proposal of the petitioner having been selected for appointment after recommendation as per rules on the post of Registrar for a period of five years. The letter of appointment was issued on 21.11.2013. The petitioner appears to have written a letter, thereafter, to her parent employer/BHU on 26.11.2015 making a request for relieving her on deputation for five years, so as to enable her to join the post of Registrar in the Ambedkar University.
(11) The BHU informed the petitioner vide letter dated 22.01.2014 that the sanction of deputation by the University has been extended for three years to join as Registrar at Ambedkar University w.e.f. 24.01.2014. The petitioner joined on the said post and notification was issued by the Ambedkar University on 24.01.2014. The notification does not mention about the joining on deputation basis of the petitioner and in this regard an intimation was sent to the Secretary, Department of Higher Education, Ministry of Human Resource Development, Government of India about having been selected and appointed on the general terms and conditions, which according to her was noted by the Board of Management in the meeting held on 09.04.2014.
(12) It appears that the earlier resolution dated 21.12.2013 was quoted, whereafter an Action Taken Report was mentioned as highlighted above indicating the petitioner having been relieved for three years and joining on the post of Registrar that was accepted on 24.01.2014 on deputation and the same was being intimated to the Ministry of Human Resource Development, accordingly.
(13) The petitioner, thereafter, continued to discharge her duties as Registrar of the Ambedkar University and when her three year's deputation period was about to come to an end, she moved an application before the BHU/her parent employer on 16.12.2016 requesting therein to extend the deputation for a period of another two years. The BHU vide letter dated 23.01.2014 intimated the petitioner about the same indicating the extension from 24.01.2017 to 23.01.2019.
(14) The Vice Chancellor issued a direction about the extension of the deputation of the petitioner to be placed in the meeting of the Board of Management as a reporting item. This noting is the bone of contention as to whether it had been issued and as to whether the letters that were received from the BHU on 23.01.2017 and whether the Vice Chancellor had been fully made aware of.
(15) The Finance Officer of the Ambedkar University wrote a letter to the Registrar of the BHU on 16.01.2017 informing the authority that in view of the provisions referred therein and the audit observations made in relation to her service conditions, the transformation of the status of the service of the petitioner from tenure appointment to an appointment on deputation was not in accordance with any guidelines and she had not been appointed on deputation, even though, she has been relieved by the BHU on deputation to join the post as Registrar of the Ambedkar University. The Finance Officer, accordingly, suggested for taking disciplinary action against the petitioner for having attained pecuniary advantages and on the ground that she was not on deputation.
(16) Thereafter, a writ of quo warranto, which was numbered as Writ Petition No.3698 (MB) of 2017 was filed before this Court challenging the appointment of the petitioner on deputation basis that whether the appointment has been made in accordance with the provisions of the statute and Act of the University. In the writ petition, this Court passed an interim order on 20.02.2017 restraining the petitioner from discharging her duties on the post of Registrar of the Ambedkar University. After hearing the parties, the writ petition was disposed of with certain directions, wherein extension of the petitioner by BHU dated 23.01.2017 came to be challenged by one Dr. Kamal Jaiswal (member of the Board of Management of the University).
(17) The writ petition was finally decided and disposed of vide judgment and order dated 01.05.2017. While passing the said judgment and order, the Hon'ble Court had been pleased to frame four issues; the first issue was with respect to maintainability of the writ petition; the second issue was with respect to selection on the post, of it's components, the advertisement and the final offer of appointment; the third issue was of the power of appointing authority to be exercised for permitting the selected incumbent to join on the post on terms and conditions that are neither part of the statute nor the advertisement and the fourth issue, which falls for consideration was as to whether the permission to join on deputation consequent to the offer made was permissible under law or not.
(18) It is further transpired that during the period when the petitioner was restrained by means of interim order dated 20.02.2017 passed by this Court, one Professor R.B. Ram was appointed as acting Registrar of the University in place of the petitioner. After the judgment passed by this Court, the petitioner went to join duties on 05.05.2017. The letter of the joining was marked to the Finance Officer. In spite of the letter of joining submitted by the petitioner on 05.05.2017, no formal order of assessment of charge was passed by the respondent No.3 permitting the petitioner to function as such and illegally the incharge Registrar was allowed to function in utter defiance of the order passed by this Court.
(19) Therefore, the petitioner approached to the members of the Board of Management of the university brining to their knowledge the illegal deductions being made from her salary and other entitlements and also against the functioning of the parallel Registrar and in this regard, a notification dated 08.05.2017 has been brought on record of the writ petition as Annexure No.21 showing that a notification dated 08.05.2017 was issued in the name of the Registrar under the signature of acting Registrar- Professor R.B. Ram.
(20) The petitioner, thereafter, approached to the University authorities ventilating her grievances in regard to the illegal continuance of Professor R.B. Ram on the post of Registrar.
(21) Vide letter dated 01.06.2017, under the orders of respondent No.3, the Director, Computer Centre of the University was directed to report to the Vice Chancellor of the University.
(22) As per the judgment and order passed by this Court on 01.05.2017, the matter of the petitioner for her continuance on the post of Registrar of the University for a further period of two years, as was to be considered by the Board of Management, was done by the Board of Management of the University in its meeting held on 22.7.2017. The Board of Management of the University vide its resolution dated 22.07.2017, permitted the petitioner to continue as Registrar for five years on tenure basis from the date of her joining i.e. 24.01.2014.
(23) The Vice Chancellor wrote a letter to the petitioner on 18.08.2017 informing her that she has not submitted her proper relieving from the BHU and as such if she wants to continue on the post of Registrar of the University on tenure appointment, she should furnish revised proper relieving order w.e.f. 24.01.2014 from the BHU, Varanasi within fifteen days of the receipt of the order, failing which, her appointment on the post of Registrar shall stand cancelled immediately after expiry of aforesaid period.
(24) In compliance of the letter issued by the Vice Chancellor of the respondent-University, the petitioner approached to the BHU on 25.08.2017 and in pursuance thereto a letter of relieving was issued on 30.08.2017 relieving the petitioner w.e.f. 24.01.2017 to 23.01.2019 to work on the post of Registrar of the present university i.e. for a period of five year on extraordinary leave without pay.
(25) The letter issued by the BHU dated 30.08.2017 was placed before the Vice Chancellor by the petitioner vide letter dated 04.09.2017. The Vice Chancellor issued a notice on 18.09.2017 to the petitioner to show cause to the effect that the appointment was being sought to be considered by the Vice Chancellor and again despite the same having already been considered by the Board of Management of the University. The notice further reveals that the petitioner was required by the Vice Chancellor to resign from her service with the BHU in order to continue on the post of Registrar of the present University and to submit reply, seven day's time was granted to the petitioner with the stipulation as to why her appointment on the post of Registrar of the University may not be cancelled.
(26) The show cause notice dated 18.09.2017 was replied by the petitioner vide reply dated 25.09.2017 to the respondent no.3 requesting him to inform regarding the Government Rules, which prohibits her to maintain her lien while holding a tenure post of the University and further that the decision of the Board of Management of the University does not require the petitioner to submit her resignation to the BHU and further two weeks time was sought to submit proper reply to the show cause notice.
(27) The Vice Chancellor - respondent No.3 after receiving the reply of the petitioner dated 25.09.2017, again sent a letter through e.mail on 29.09.2017 requiring the petitioner to submit reply within seven days as last opportunity with a requirement that she should show the provision under which she can maintain her lien in the BHU while working as Registrar in the Ambedkar University.
(28) The petitioner submitted her reply on 04.10.2017. In reply, the petitioner raised objections regarding the authority of the Vice Chancellor to initiate proceeding for terminating her services as Registrar of the University and further informing that the same amounts to contempt of the judgment and order passed by this Court on 01.05.2017.
(29) The Vice Chancellor of the University passed an order on 17.10.2017 cancelling the appointment of the petitioner exercising the emergency power provided under Section 12(b) of the Act of 1994.
(30) It is also relevant that on the issue in regard to the continuation of the petitioner, the Board of Management fixed a meeting to be held on 23.10.2017. The meeting of the Board of Management scheduled to be held on 23.10.2017 was deferred subsequently by means of the order dated 18.10.2017 issued under the orders of the in-charge Registrar of the University and after cancellation of the appointment of the petitioner, the charge of the post of Registrar of the University was given to Professor R.B. Ram, who substantively holds the post of Professor Horticulture in the university, who was directed to start the process of advertising the post of Registrar of the university.
(31) The matter in regard to appointment of the petitioner was also placed before the National Commission for Scheduled Caste, New Delhi on the complaint lodged by a Member of the Parliament. A contempt was also filed before this Court which was numbered as Contempt Petition No.2113 of 2017, which was finally decided and dismissed by means of the judgment and order dated 11.10.2017. Subsequently, the Board of Management of the University in its 63rd meeting held on 14.11.2017, while discussing the agenda item No.63.4, has approved the action of the Vice Chancellor taken vide order dated 17.10.2017.
(32) The petitioner has assailed the order dated 17.10.2017, passed by the Vice Chancellor, advertisement issued on 19.10.2017 contained as Annexure Nos.1 and 2 to the writ petition respectively, and minutes of the meeting dated 14.11.2017 contained as Annexure No.45 to the writ petition in as much as the office order dated 12.01.2017 issued by respondent No.5 contained as Annexure No.3 to the writ petition, the office order dated 28.02.2017 issued by the respondent No.5 contained as Annexure No.4 to the writ petition and impugned orders dated 05.05.2017 and 30.05.2017 and 31.07.2017 passed by respondent No.5, collectively contained as Annexure No.5 to the writ petition.
(33) Assailing the impugned orders, submission of Sri S.K. Kalia, learned Senior Counsel is that the exercise of power under Section 12 (3) of the Act of 1994 requires reasons to be recorded and while passing the impugned orders, no reasons have been assigned. Therefore, the orders vitiate in law.
(34) He further submitted that neither the resolution of the Board of Management dated 22.07.2017 nor the judgment and order dated 01.05.2017 envisage taking of fresh relieving from the BHU, Varanasi as the Court had not made it open either to the Board of Management of the University or to the Vice Chancellor of the University to consider the issue of appointment of the petitioner and it was only her further continuance on deputation, which was required to be considered by the Board of Management, which was actually done by the Board of Management while taking aforesaid resolution and as such, initiation of such an action by the respondent No.3 was completely without jurisdiction and in absolute defiance of the orders passed by this Court.
(35) He next submitted that the order of the Vice Chancellor is beyond his jurisdiction, as the authority to take decision with respect to the matters concerning the service of the petitioner and matters related thereto vests with the Board of Management of the University being the appointing authority.
(36) The Board of Management of the University in its meeting held on 22.07.2017, has been pleased to uphold the continuation of the petitioner for a tenure of five years. Thus, the order of the Vice chancellor is contrary to the decision taken by the Board of Management and is not sustainable in law.
(37) He further submitted that the appointment of the petitioner was made absolutely after following the due process of law for a tenure of five years and this Court in the judgment and order passed on 01.05.2017, has not found any fault with the initial appointment of the petitioner, which was for a tenure of five years. Therefore, his submission is that there was no urgency on the part of the Vice Chancellor to exercise the emergency power as vested under Section 12(3) of the Act of 1994.
(38) It is submission of the learned Senior Counsel that the Ministry of Human Resource Development, Government of India considering the abuse of emergency power of Vice Chancellor, issued an office memorandum on 11.06.2001 providing that the emergency powers conferred should be exercised with restrain and only in such emergency situations, where the authority ordinarily empowered to exercise such powers is unlikely to meet in the near future and deferring a decision for consideration of the appropriate body is likely to create serious administrative inconvenience. In the order of the Vice Chancellor, there is no such finding, therefore, the order vitiates in law.
(39) He, therefore, further submitted that the Board of Management of the University has already scheduled to meet on 23.10.2017 and the University was started from 18.10.2017 to 22.10.2017, thus, passing the order almost on the date of meeting of the Board of Management, is absolute abuse of the extraordinary power provided under Section 12(3) of the Act of 1994.
(40) He next submitted that the impugned orders re-fixing the pay of the petitioner and affecting the recoveries against her have been passed without jurisdiction by the Finance Officer and the University, as it is not vested with any authority to pass an order against the Registrar of the University. The impugned orders affecting the recoveries against the petitioner have been passed unilaterally without calling any explanation from the petitioner. Therefore, his submission is that the orders affecting the recoveries against the petitioner are in violation of the principles of natural justice.
(41) His next submission is that the impugned orders have been passed on account of extraneous reasons and malice of the respondent Nos.4 and 5, who acted maliciously against the petitioner.
(42) He further submitted that a bare perusal of the minutes of the impugned meeting dated 14.11.2017 would reveal that twelve members participated in the meeting, which included the Vice Chancellor, who was the Chairman of the Board of Management.
(43) His last submission is that the subsequent meeting held on 14.11.2017 has not been approved as yet and while holding the meeting the Vice Chancellor and Professor Kamal Jaiswal - Members of the Board of Management ought to have not participated in respect of consideration of the case of the petitioner since both the persons were biased towards the petitioner. Therefore, the decision taken in the meeting held on 14.11.2017 is contrary to the rules of fair play which requires impartial persons to deliberate and take a decision.
(44) In support of the submissions, learned Senior Counsel for the petitioner relied upon certain judgments on the point, which are being quoted below:
i) Gyan Chandra Mehrotra Vs. University of Allahabad through Registrar and another; 1963 SCC Online All 218.
ii) Marathwada University Vs. Seshrao Balwant Rao Chavan; (1989) 3 SCC 132.
iii) State of Orissa and another Vs. Mamata Mohanty; (2011) 3 SCC 436.
(45) On the other hand, Sri Anil Tiwari, learned Senior Counsel for the respondents raised preliminary objection in regard to maintainability of the writ petition being availability of appeal against the order passed under Section 12 (3) of the Act of 1994.
(46) He next submitted that due to non joinder of the necessary party to the Finance Officer, the writ petition is liable to be dismissed.
(47) He further submitted that the Division Bench of this Court in the judgment dated 01.05.2017, has recorded certain finding, wherein it has been recorded that the appointment on deputation is not permissible in law and it is not permissible on the basis of long leave granted to the candidates to join in pursuance to the selection on the post of Registrar, thus, his submission is that the Vice chancellor has not committed any illegality in passing the impugned order dated 17.10.2017.
(48) His next submission is that the decision of the Vice Chancellor was subsequently considered by the Board of Management and after the objection filed by the petitioner, the Board of Management approved the decision taken by the Vice chancellor. Thus, the same does not suffer from any infirmity or illegality.
(49) In support of his submissions, he placed reliance upon the judgments referred herein below:
i) Vice Chancellor Vs. S.K. Ghosh; AIR 1954 SC 217.
ii) Virendra Singh Vs. The Jiwaji University; AIR 1976 MP 230.
iii) Prakash Yadeo Vs. The Principal, AIR 1965 MP 217.
iv) Shivnarayan Vs. Vice Chancellor, University of Sagar; AIR 1960 MP 208.
(50) Sri Amit Bose, learned counsel has filed Impleadment Application No.132277 of 2018 for impleadment on behalf of Dr. Kamal Jaiswal, whose application for impleadment has already been rejected vide order dated 30.10.2017. Therefore, another application on behalf of the same applicant on the same set of facts and grounds is not maintainable in view of the provisions contained under Chapter 22 Rule 7 of the High Court Rules. Accordingly, the same is hereby rejected.
(51) Sri Amit Bose, learned counsel appearing on behalf of respondent No.5-Finance Officer of the University made following submissions:
i) As per the provisions contained under the Act of 1994, the appointment on the post of Registrar on deputation basis is not permissible. Therefore, his submission is that the Vice Chancellor and Board of Management has committed no illegality in cancelling the appointment of the petitioner.
ii) Under the theory of ratification, once it has been found that the very basis of the appointment of the petitioner is contrary to the act and statute of the University, therefore, the same has been corrected by passing the impugned orders, which do not suffer from any infirmity or illegality.
iii) He further submitted that the Vice Chancellor and the Board of Management have committed no illegality and have passed the orders in consonance with the provisions contained under the act and statutes. Therefore, no interference is required by this Court under Article 226 of the Constitution of India.
(52) On the point of deputation and lien as well as theory of ratification, learned counsel for respondent No.5 placed reliance upon certain judgments referred herein below:
i) State of Punjab Vs. Inder Singh; (1997) 8 SCC 372.
ii) Umapati Choudhary Vs. State of Bihar; (1994) 4 SCC 659.
iii) Indu Shekhar Singh Vs. State of U.P.; (2006) 8 SCC 129.
iv) Prasar Bharti Vs. Amarjeet Singh; (2007) 9 SCC 539.
v) Ashok Kumar Ratilal Patel Vs. Union of India; (2012) 7 SCC 757.
vi) State of Rajasthan Vs. S.N. Tiwari; (2009) 4 SCC 700.
vii) Jugraj Singh Vs. Jaswant Singh; (1970) 2 SCC 386.
viii) Parmeshwari Prasad Gupta Vs. Union of India; (1973) 2 SCC 543.
ix) Marathwada University Vs. Seshrao Balwant Rao Chavan; (1989) 3 SCC 132.
x) High Court of Judicature for Rajasthan Vs. P.P. Singh; (2003) 4 SCC 239.
xi) State (Anti-Corruption Branch), Govt. of N.C.T. of Delhi Vs. Dr. R.C. Anand; (2004) 4 SCC 615.
xii) Claude-Lila Parulekar Vs. Sakal Papers (P) Ltd.; (2005) 11 SCC 73.
xiii) Maharashtra State Mining Corpn. Vs. Sunil; (2006) 5 SCC 96.
xiv) Ashok Kumar Sahu Vs. Union of India; (2006) 6 SCC 704.
xv) Ashok Kumar Das Vs. University of Burdwan; (2010) 3 SCC 616.
xvi) National Institute of Technology Vs. Pannalal Choudhary; (2015) 11 SCC 669.
xvii) Dr. Abdul Khair Vs. Miss Sheila Myrtla James; AIR 1957 Pat 308.
xviii) Halsbury's Laws of England, Fourth Edn. Reissur, Vol 1(12).
xix) Williams Vs. North China Insurance Co.; (1876) 1 CPD 757.
xx) Irvine Vs. Union Bank of Australia; (1877) 1 AC 366.
xxi) Bolton Partners Vs. Lambert; (1889) 41 Ch.D. 295.
xxii) In re. Portuguese Consolidated Copper Mines; (1890) 45 Ch.D. 16 (CA).
xxiii) Firth Vs. Staines; (1897) 2 QB 70.
xxiv) In re. Tiedmann and Ledermann Freres; (1899) 2 QB 66.
xxv) In re. Gloucester Municipal Election Petition 1900; Foed Vs. Neweth (At pg. 693); (1901) I KB 683.
xxvi) The King Vs. Chapman; (1918) 2 KB 298.
xxvii) KoenigsBlatt Vs. Sweet; (1923) 2 Ch.D. 314.
xxviii) Boston Deep Sea Fishing & Ice Co. Ltd. Vs. Farnham; (1957) 1 WLR 1051.
xxix) Williams Vs. Vreeland; 250 U.S. 295 (1919).
(53) Having heard the rival contentions advanced by learned counsel for the parties, I perused the record of the writ petition as well as the law reports relied upon by learned counsel for the parties.
(54) To resolve the controversy involved in the present writ petition, the provisions contained under Section 12 of the Act of 1994 are being quoted below:
"(12) (1) The Vice-Chancellor shall be appointed by the Visitor in such manner as may be prescribed by the Statutes.
(2) The Vice-Chancellor shall be the principal executive and academic head of the University and shall exercise general supervision and control over the affairs of the University and give effect to the decisions of all the authorities of the University.
(3) The Vice-Chancellor may, if he is of opinion that immediate action is necessary on any matter, exercise any power conferred on any authority of the University by or under this Act and shall report to such authority, the action taken by him on such matter:
PROVIDED that if the authority concerned is of opinion that such action ought not to have been taken, it may refer the matter to the Visitor whose decision thereon shall be final:
PROVIDED FURTHER that any person in the service of the University who is aggrieved by the action taken by the Vice-Chancellor under this sub-section shall have the right to appeal against such action to the Board of Management within three months from the date on which decision on such action is communicated to him and thereupon the Board of Management may confirm, modify or reverse the action taken by the Vice-Chancellor.
(4) The Vice-Chancellor, if he is of the opinion that any decision of any authority of the University is beyond the powers of the authority conferred by the provisions of this Act, the Statutes or the Ordinances or that any decision taken is not in the interest of the University, may ask the authority concerned to review its decision within sixty days of such decision and if the authority refuses to review the decision either in whole or in part or no decision is taken by it within the said period of sixty days, the matter shall be referred to the Visitor whose decision thereon shall be final.
(5) The Vice-Chancellor shall exercise such other powers and perform such other duties as may be prescribed by the Statutes or the Ordinances."
(55) In regard to the first submission advanced by learned Senior Counsel for the petitioner that while exercising emergency power the Vice Chancellor has not assigned reasons in passing the impugned orders, he placed reliance upon paragraph No.7 of a judgment of this Court in the case of Gyan Chandra Mehrotra (Supra), which is being quoted below:
"7. The powers of the Vice-Chancellor under S. 12(7) can only be exercised after the Vice-Chancellor arrives at the opinion that there is an emergency requiring immediate action to be taken, and, unless this preliminary condition is satisfied, the Vice-Chancellor will not be competent to take action under Section 1297) of the Allahabad University Act. In this case, since no such opinion was recorded by the Vice-Chancellor and while there is no material on the record of the writ petition to show that he ever arrived at any such opinion, it has to be held that the Vice-Chancellor did not and could not act under Section 12(7) of the Allahabad University Act. This view of ??? is further strengthened by the fact that even the Vice-Chancellor, according to himself, newer purported to exercise the powers vested in him under this provision and, on the other hand, purported to act under Ordinance 13 of Chapter 29. Consequently, we are unable to accept the argument on behalf of the appellant that the earlier order of the Vice-Chancellor should be held to have been passed by him in exercise of his powers under Section 12(7) of the Allahabad University Act."
(56) Upon perusal of the impugned orders, it is evident on the face of it that the Vice Chancellor while exercising the power under Section 12 of the Act has not recorded satisfaction to arrive at the opinion that there is emergency requiring immediate action to be taken.
(57) In the present case, the Board of Management was considering the case of the petitioner in pursuance to the direction issued by this Court and date was fixed on 23.10.2017, then there was no occasion on the part of the Vice-Chancellor to proceed to exercise the emergency powers that too without recording satisfaction and reasons in passing the order. The order exercising the emergency power must record reasons.
(58) It has further been transpired that neither the resolution of the Board of Management dated 22.07.2017 nor the judgment and order dated 01.05.2017 envisaged taking of fresh relieving from the BHU, Varanasi. The issue was in regard to further continuance of the petitioner on deputation, which was required to be considered by the Board of Management and the same was done. Thus, the action taken by the Vice Chancellor is completely without jurisdiction and in absolute defiance of the order passed by this Court. The competent authority to take decision in regard to continuance of the petitioner is the Board of Management of the University being the appointing authority.
(59) Next submission of the learned Senior Counsel for the petitioner is that the appointing authority of the petitioner is the Board of Management, therefore, the Vice Chancellor acted beyond his jurisdiction. On the issue, he placed reliance on the the following judgment:
i) Marathwada University Vs. Seshrao Balwant Rao Chavan; (1989) 3 SCC 132, paragraph No.27:
"27. These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified.
(60) In regard to the submission of learned Senior Counsel for the petitioner that Ministry of Human Resource Development, Government of India issued a memorandum on 11.06.2001 in regard to exercise of emergency power by the Vice-Chancellor providing that emergency powers conferred should be exercised with restrain and only in such emergent situations, where the authority ordinarily empowered to exercise such powers is unlikely to meet in the near future and deferring a decision for consideration of the appropriate body is likely to create serious administrative inconvenience.
(61) On perusal of the order of the Vice-Chancellor, neither satisfaction in this regard has been recorded nor the Vice-Chancellor has recorded his satisfaction that why he has been compelled to exercise his emergency powers. Therefore, the order being unreasoned, vitiates in law.
(62) On perusal of the record, it is also reflected that the Board of Management of the University fixed meeting on 23.10.2017 and the Vice-Chancellor in exercise of emergency powers passed an order on 17.10.2017 cancelling the appointment of the petitioner under Section 12(b) of the Act of 1994. This clearly demonstrates that it is nothing but the abuse of the power by the Vice-Chancellor without recording his satisfaction to exercise the power.
(63) In regard to the submission of learned Senior Counsel for the petitioner in regard to exercise of power at the level of Finance Officer of the University in refixation of salary of the petitioner and effecting recoveries against her, the Finance Officer of the University is not entrusted power to initiate proceeding against the Registrar of the University under any provision of the Act of 1994 and statute framed thereunder. Therefore, the action on the part of the Finance Officer is wholly without jurisdiction, as he has no power to pass an order against the Registrar of the University.
(64) In regard to the submission of learned Senior Counsel for the petitioner that the minutes of the meeting dated 14.11.2017 of the Board of Management, the Vice-Chancellor and Professor Kamal Jaiswal have participated in respect of consideration of the case of the petitioner, who were biased with the petitioner, therefore, rules of fair play in consideration of impartial decision, their participation cannot be held to be justified. In case the Vice-Chancellor being Chairman of the Board of Management has exercised his emergency powers in cancellation of appointment of the petitioner and Professor Kamal Jaiswal has filed a writ petition of quo warranto against the petitioner, both were biased and would not have participated in the meeting of the Board of Management held on 14.11.2017. The decision taken by the Vice-Chancellor was validated by holding a meeting of the Board of Management on 14.11.2017. Validation of an order by holding meeting by the Board of Management cannot be made once it is bad at the initial stage. The proceedings consequent to the order illegally passed being nonest cannot be approved of. In this regard, learned Senior Counsel for the petitioner placed reliance upon a judgment in the case of State of Orissa and another (Supra), paragraph No.37, which is being quoted below:
"37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (vide Upen Chandra Gogoi v. State of Assam, Mangal Prasad Tamoli v. Narvadeshwar Mishra and Ritesh Tewari v. State of U.P.)."
(65) On perusal of the judgment, the legal position is that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action / development cannot validate the action, which was not lawful at its inception.
(66) Sri Anil Tiwari, learned Senior Counsel for the respondents raised a preliminary objection in regard to maintainability of the writ petition being availability of appeal against the order passed under Section 12(3) of the Act of 1994 and also due to non joinder of necessary parties to the Finance Officer in the writ petition.
(67) In this regard, I perused the provisions of the Babasaheb Bhimrao Ambedkar University Act, 1994.
(68) On its perusal, it is apparent that the Vice-Chancellor has been empowered to exercise his emergency powers under Section 12(3) of the Act and appeal lies against the decision to the Board of Management.
(69) This Court after considering the submissions of learned Senior Counsel for the petitioner has arrived at the conclusion that the order passed by the Vice-Chancellor is wholly without jurisdiction as while passing the order, he acted arbitrarily and has not recorded reasons in exercise of powers given to him. The meeting of the Board of Management for consideration of the claim was scheduled to be held on 23.10.2017, therefore, there was no occasion on the part of the Vice-Chancellor to exercise his emergency powers. Thus, the alternative remedy to file appeal is not barred in view of the judgment of Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others [1998 (8) SCC 1]. Therefore, the submission advanced by learned Senior Counsel for the respondents fall down.
(70) The submission of learned Senior Counsel for the respondents in regard to non joinder of the Finance Officer as necessary party is wholly baseless as he has been arrayed as respondent No.5 in the array of parties.
(71) In regard to the submission of learned Senior Counsel for the respondents that the appointment on the post of Registrar of the University on deputation basis is not permissible and the submission that the order of Vice-Chancellor and the decision taken by the Board of Management do not suffer from any infirmity or illegality, taking into consideration the submissions advanced by learned counsel for the respective parties, this Court is of the opinion that the Vice Chancellor has acted arbitrarily and without recording his satisfaction in exercise of emergency powers and without recording reasons has proceeded to pass the impugned orders. The Board of Management in its meeting held on 23.10.2017 was proceeding to consider the claim of continuance of the petitioner and in case in the meeting held on the aforesaid date and the decision of the Vice-Chancellor was approved of, even then the decision of the Vice-Chancellor cannot be validated in the eyes of law. Therefore, the submission advanced by learned Senior Counsel for the respondents cannot be approved of. In support of his submissions, learned Senior Counsel for the respondents relied upon following judgments, which are being quoted below:
i) Vice Chancellor Vs. S.K. Ghosh; AIR 1954 SC 217, paragraph Nos.16, 17, 18 and 19:
"16. The reason for the stricter rule laid down in the cases cited before us is that though an incorporated body like an University is a legal entity it has neither living mind nor voice. It can only express its will in formal way by a formal resolution and. so can only act in its corporate capacity by resolutions properly considered, carried and duly recorded in the manner laid down by its constitution. If its rules require such resolutions to be moved and passed in a meeting called for the purpose, then every member of the body entitled to take part in the meeting must be given notice so that he can attend and express his views. Individual assents given separately cannot be regarded as equivalent to the assent of a meeting because the incorporated body is different from the persons of which it is composed.
Hence, an omission to give proper notice even to a single member in these circumstances would invalidate the meeting and that in turn would invalidate resolutions which purport to have been passed at it. But this is only when such inflexible rigidity is imposed by the incorporating constitution.
The position is different when, either by custom or by the nature of the body or by its constitution and rules, greater latitude and flexibility are permissible. Each case must be governed by its own facts and no universal rule can be laid down; also it may well be that in the same body certain things, such as routine matters, can be disposed of more easily and with less formality than others. It all depends on the nature of the body and its rules.
17. In the present case, there were not one but two meetings. Proper notices of both meetings were issued to all the members including the two absentees. The only defect is that the matter we are concerned with was not included in the agenda of either meeting. We need not decide here whether this must always be done-there are English cases which indicate that is not always necessary, see for example The King v. Pulsford(1), La Compagnie De Mayville v. Whitley(1), and Parker and Cooper Ltd. v. Reading(1); also, in the present case one of the items in the agenda of both notices was " other matters, if any. "
But it is not necessary to go into that because in this case these members did in fact attend one or other of the meetings and expressed their views, not individually, but as members of a meeting which was considering the matter; and there was unanimity on both occasions Even on the stricter view taken in the cases relied on by counsel it is pointed out that want of due notice can be waived in given circumstances. Thus, if a person who was not noticed appears at the meeting and waives the irregularity, the defect is cured; so also when a person is too far away to be reached in time to enable him to communicate with the Committee before the meeting: the sending of a notice is then excused. See - 'AIR 1934 PC 62(A)' and 'Young v. Ladies Imperial Club Ltd.' (1920) 89 LJKB 536 (E).
The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law, we are not prepared to let an unessential defect in form defeat what is otherwise a proper and valid resolution. We, however, confine our remarks to the facts of this case where there was actual appearance without objection at meetings properly convened and where there was complete unanimity on both occasions. Whether it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say. In our opinion, the High Court was wrong in holding that the two resolutions were invalid. Whatever may be thought about each taken separately, the defects, if any, are, in our judgment, cured when the two are read together and regarded as a whole.
18. We also think the High Court was wrong on the second point. The learned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a pro- position to which we are not able to assent.
19. We are not prepared to perpetrate the error into which the learned High Court Judges permitted themselves to be led and examine the facts for ourselves as a court of appeal but in view of the strictures the High Court has made on the Vice- Chancellor and the syndicate we are compelled to observe that we do not feel they are justified. The question was one of urgency and the Vice-Chancellor and the members of the syndicate were well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judges indicate, but it is not the function of courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law.
The University authorities acted honestly as reasonable and responsible men confronted with an urgent situation are entitled to act. They had experts of their own on their body. They examined others who in their opinion, might throw light on the incident. They themselves compared the two papers and, after a deliberation of some six hours, arrived at an unanimous decision and then they reviewed the matter afresh at a second meeting with the assistance of one of their number who was not present on the first occasion. It is inaccurate to describe that as haste and unjust to characterise their action as unreasonable and lacking due care. This is decidedly not the sort of case in which a mandamus8 ought to issue. We accordingly set aside the order of the High Court."
ii) Virendra Singh Vs. The Jiwaji University; AIR 1976 MP 230, paragraph No.14:
"14. Sub-section (5) of Section 15 of the Act provides that on receipt of the report the authority concerned, if it does not approve of the action taken by the Vice-Chancellor, shall refer the matter to the Chancellor whose decision shall be final. Sub-section (6) lays down that the action taken by the Kulpati under Sub-section (4) shall be deemed to be taken by the appropriate authority until it is set aside by the Chancellor on a reference made under Sub-section (5) or is set aside by the Executive Council on an appeal under the second proviso to Sub-section (4). There is nothing to show that the action of the Vice-Chancellor was not approved either by the authority concerned or any appeal was filed against the action taken by him to the Executive Council, In these circumstances the action of the Vice-Chancellor is not open to challenge in these proceedings particularly because it was within the competence of the authorities of the University, namely, the Academic Council and the Executive Council. "
iii) Prakash Yadeo Vs. The Principal, AIR 1965 MP 217, paragraph No.4:
"4. The admission of the petitioner to the second year class when he had not passed the Preliminary Examination was contrary to the express provision contained in paragraph 12 of Ordinance No. 33, and the orders passed by the Vice-Chancellor, Saugar University, on 2nd July 1963 and 8th February 1964 were also in violation of paragraph 12 of the Ordinance. In the return filed by the Vice-Chancellor no attempt whatsoever has been made to show the authority under which these two orders were issued by the Vice-Chancellor. It has been repeatedly stated in the return that the aforesaid two orders speak for themselves. The first order dated 2nd July 1963 mentioned in the very beginning that it had been made by the Vice-Chancellor in exercise of the powers vested in him by Section 14(4) of the University of Saugar Act. The second one made no such mention. But, presumably, that order was also made by the Vice Chancellor purporting to exercise the power given to him by Section 14 4. Now, Section 14(4) is as follows:
"The Vice-Chancellor may. in any emergency which in his opinion requires that immediate action should be taken, lake such action as he deems necessary, and shall at the earliest opportunity report his action to the authority which in the ordinary course would have dealt with the matter."
It will be seen that under this provision the Vice-Chancellor can act only in a matter which any authority of the University is competent to deal with and if, in the opinion of the Vice-Chancellor, there is an emergency which requires immediate action in the matter without reference to the University Authority concerned, the Vice-Chancellor is no doubt the sole judge of the existence of any emergency calling for immediate action and this Court cannot inquire into the existence of emergency or the propriety of the action taken by the Vice-Chancellor without reference to the University authority. But this Court can certainly examine the legality of the action taken in the purported exercise of the power under Section 14(4) and see whether the Vice-Chancellor has taken action in a matter which any of the University authorities was competent to deal with. The Vice-Chancellor cannot under the cloak of an emergency usurp to himself the powers which the University authorities have not under the Act, or the University Statutes or Ordinances. When paragraph 12 of Ordinance No. 33 strictly laid down that no candidate could be admitted to the second year class of the Three Year Degree Course unless he had passed the Preliminary Examination, the Vice-Chancellor could not, by making any order under Section 14(4), permit the admission of any failed student into the second year class. In our opinion, the orders passed by the Vice-Chancellor on 2nd July 1963 and 8th February 1964 were altogether ultra vires the Art and Ordinance No. 33."
iv) Shivnarayan Vs. Vice Chancellor, University of Sagar; AIR 1960 MP 208, paragraph No.9:
"9. The contention that the Vice-Chancellor had no power to pass an order terminating the applicant's services and that the competent authority was the Executive Council alone cannot be accepted. Under Section 14(4) of the University of Saugar Act, 1946, the Vice-Chancellor is empowered to take immediate action in any emergency without reference to the Executive Council. That sub-section provides :
"The Vice-Chancellor may, in any emergency which in his opinion requires that immediate action should he taken, take such action as he deems necessary, and shall at the earliest Opportunity report his action to the authority which in the ordinary course would have dealt with the matter."
According to this provision, it is the Vice-Chancellor and the Vice-Chancellor alone who is concerned, and the intention of the framers of the Act is to leave the Vice-Chancellor the power to decide whether any emergency exists which calls for immediate action. The Court cannot enquire into the existence of emergency or the propriety of the action taken by the Vice-Chancellor without reference to the Executive Council. In this connection the observations made by the Supreme Court in Vice-Chancellor, Utkal University v. S.K. Gosh, AIR 1954 SC 217 as to the limits of the power of the High Court to interfere in the decisions of an incorporated body like a University are pertinent.
That was a case in which the Syndicate of the Utkal University resolved that there had been leakage of questions in anatomy, that the results in anatomy examination held in 1951 be cancelled, and that another examination be held. The validity of this resolution was challenged in the Orissa High Court by an application under Article 226 of the Constitution mainly on the ground that the meeting of the Syndicate had not been called in accordance with law and that the resolution was also not validly passed.
The High Court examined the facts for itself and conducted that even if the evidence was sufficient to indicate the possibility of some leakage there was no justification for the Syndicate to pass such a drastic resolution in the absence o£ proof of the quantum and amplitude of the leakage. The High Court, therefore, issued a mandamus directing the Syndicate to take steps for the publication of the results. The Supreme Court observed:
"We are not prepared to perpetrate the error into which the learned High Court Judges permitted themselves to be led and examine the facts for ourselves as a Court of appeal but in view of the strictures the High Court has made on the Vice-Chancellor and tile Syndicate we are compeled to observe that we do not feel they are justified. The question was one of urgency and the Vice-Chancellor and the members of the Syndicate were well within their rights In exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judge indicate, but it is not the function of Courts o law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law."
In view of these observations, it is not open to us to examine whether any emergency existed and whether the Vice-Chancellor was justified in making an order on his own terminating the petitioner's services."
(72) In the light of the observation made in earlier paragraphs and the law reports cited by learned Senior Counsel for the respondents, this Court records that the order of the Vice-Chancellor exercising the emergency power was arbitrary and without jurisdiction, therefore, the facts and circumstances of the cases referred herein above are distinguishable and do not attract to the present facts and circumstances of the case. Therefore, the submission advanced by learned Senior Counsel for the respondents cannot be accepted.
(73) Sri Amit Bose, learned counsel appearing on behalf of respondent No.5 - Finance Officer made submission that the appointment on the post of Registrar of the University is not permissible on deputation basis. Thus, his submission is that there is no illegality in the order of the Vice-Chancellor and the decision taken by the Board of Management.
(74) His further submission is that if there any wrong has been committed, then under the theory of ratification the same can be corrected. The appointment of the petitioner was contrary to the act and statute, which has been corrected by passing the impugned orders. In support of his submissions, he placed reliance upon the following judgments:
i) State of Punjab Vs. Inder Singh; (1997) 8 SCC 372.
ii) Umapati Choudhary Vs. State of Bihar; (1994) 4 SCC 659.
iii) Indu Shekhar Singh Vs. State of U.P.; (2006) 8 SCC 129.
iv) Prasar Bharti Vs. Amarjeet Singh; (2007) 9 SCC 539.
v) Ashok Kumar Ratilal Patel Vs. Union of India; (2012) 7 SCC 757, paragraph Nos.13, 14 and 15:
"13. Ordinarily transfers on deputations are made as against equivalent post from one cadre to another, one department to another, one organisation to another, or one Government to another; in such case a deputationist has no legal right in the post. Such deputationist has no right to be absorbed in the post to which he is deputed. In such case, deputation does not result into recruitment, as no recruitment in its true import and significance takes place as the person is continued to be a member of the parent service.
14. However, the aforesaid principle cannot be made applicable in the matter of appointment(recruitment) on deputation. In such case, for appointment on deputation in the services of the State or organisation or State within the meaning of Article 12 of the Constitution of India, the provisions of Article 14 and Article 16 are to be followed. No person can be discriminated nor it is open to the appointing authority to act arbitrarily or to pass any order in violation of Article 14 of the Constitution of India. A person, who applies for appointment on deputation has indefeasible right to be treated fairly and equally and once such person is selected and offered with the letter of appointment on deputation, the same cannot be cancelled except on the ground of non- suitability or unsatisfactory work.
15. The present case is not a case of transfer on deputation. It is a case of appointment on deputation for which advertisement was issued and after due selection, the offer of appointment was issued in favour of the appellant. In such circumstances, it was not open for the respondent to argue that the appellant has no right to claim deputation and the respondent cannot refuse to accept the joining of most eligible selected candidate except for ground of unsuitability or unsatisfactory performance."
vi) State of Rajasthan Vs. S.N. Tiwari; (2009) 4 SCC 700, paragraph No.15, 16 and 17:
"15. It may be necessary to notice Rule 18 of Rajasthan Service Rules which is re-produced in its entirety hereunder:
18. Termination of lien (a) A Government servants lien on a post may in no circumstances be terminated, even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post.
(b) A Government servants lien on a post stands terminated on his acquiring a lien on a permanent post (whether under the Government or Central/other State Governments) outside the cadre on which he is borne.
A bare reading of the Rule makes it clear that a government servants lien on a post cannot be terminated in any circumstances even with his consent if it results in leaving the government servant without a lien or a suspended lien upon a permanent post. A government servants lien on a post stands terminated only on his acquiring a lien on a permanent post outside the cadre on which he is borne.
16. It is not the case of the State that the respondent employee was made permanent as a Homeopathic Doctor in ESI Corporation. The respondent employee did not acquire any lien in the ESI Corporation. The question of termination of lien does not arise since the respondent employee did not acquire a lien on a permanent post outside the cadre on which he is borne.
17. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post."
vii) Jugraj Singh Vs. Jaswant Singh; (1970) 2 SCC 386.
viii) Parmeshwari Prasad Gupta Vs. Union of India; (1973) 2 SCC 543.
ix) Marathwada University Vs. Seshrao Balwant Rao Chavan; (1989) 3 SCC 132.
x) High Court of Judicature for Rajasthan Vs. P.P. Singh; (2003) 4 SCC 239.
xi) State (Anti-Corruption Branch), Govt. of N.C.T. of Delhi Vs. Dr. R.C. Anand; (2004) 4 SCC 615.
xii) Claude-Lila Parulekar Vs. Sakal Papers (P) Ltd.; (2005) 11 SCC 73.
xiii) Maharashtra State Mining Corpn. Vs. Sunil; (2006) 5 SCC 96.
xiv) Ashok Kumar Sahu Vs. Union of India; (2006) 6 SCC 704.
xv) Ashok Kumar Das Vs. University of Burdwan; (2010) 3 SCC 616.
xvi) National Institute of Technology Vs. Pannalal Choudhary; (2015) 11 SCC 669, paragraph Nos.29, 30 and 31:
"29. The expression "Ratification" means "the making valid of an act already done". This principle is derived from the Latin maxim "ratihabitio mandato aequiparatur" meaning thereby "a subsequent ratification of an act is equivalent to a prior authority to perform such act." It is for this reason; the ratification assumes an invalid act, which is retrospectively validated.
30) The expression "ratification" was succinctly defined by the English Court in one old case, Hartman Vs. Hornsby reported in 142 Mo 368 44 SW 242, 244 as under:
" ''Ratification' is the approval by act, word, or conduct, of that which was attempted (of accomplishment), but which was improperly or unauthorisedly performed in the first instance."
31) The law of ratification was applied by this Court in Parmeshwari Prasad Gupta Vs. U.O.I (1973) 2 SCC 543. In that case, the Chairman of the Board of Directors had terminated the services of the General Manager of a Company pursuant to a resolution taken by the Board at a meeting. It was not in dispute that the meeting had been improperly held and consequently the resolution passed in the said meeting terminating the services of General Manager was invalid. However, the Board of Directors then convened subsequent meeting and in this meeting affirmed the earlier resolution, which had been passed in improper meeting. On these facts, the Court held, "Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance of the invalid resolution of the Board of Directors passed on 16-12-1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on 17-12-1953."
38) This view was approved by this Court in High Court of Judicature for Rajasthan Vs. P.P. Singh & Anr. (2003) 4 SCC 239."
xvii) Dr. Abdul Khair Vs. Miss Sheila Myrtla James; AIR 1957 Pat 308.
xviii) Halsbury's Laws of England, Fourth Edn. Reissur, Vol 1(12).
xix) Williams Vs. North China Insurance Co.; (1876) 1 CPD 757.
xx) Irvine Vs. Union Bank of Australia; (1877) 1 AC 366.
xxi) Bolton Partners Vs. Lambert; (1889) 41 Ch.D. 295.
xxii) In re. Portuguese Consolidated Copper Mines; (1890) 45 Ch.D. 16 (CA).
xxiii) Firth Vs. Staines; (1897) 2 QB 70.
xxiv) In re. Tiedmann and Ledermann Freres; (1899) 2 QB 66.
xxv) In re. Gloucester Municipal Election Petition 1900; Foed Vs. Neweth (At pg. 693); (1901) I KB 683.
xxvi) The King Vs. Chapman; (1918) 2 KB 298.
xxvii) KoenigsBlatt Vs. Sweet; (1923) 2 Ch.D. 314.
xxviii) Boston Deep Sea Fishing & Ice Co. Ltd. Vs. Farnham; (1957) 1 WLR 1051.
xxix) Williams Vs. Vreeland; 250 U.S. 295 (1919), paragraph No.12:
"12. Approval, ratification, and acquiescense all presuppose the existence of some actual knowledge of the prior action and what amounts to a purpose to abide by it. Owings v. Hull, 9 Pet. 607, 629, 9 L. Ed. 246; Western National Bank v. Armstrong, 152 U. S. 346, 352, 14 Sup. Ct. 572, 38 L. Ed. 470; Glenn v. Garth, supra. When defendant in error signed blank powers of attorney she did not know what her husband had done, and certainly entertained no purpose to approve transfer of the certificates to herself. She thought she was merely doing something to enable him to correct his avowed mistake and nothing else. Nobody was misled or put in a worse position as the rusult of her act. 'As between the original parties that could not be deemed a ratification which was accompanied by a refusal to ratify and a declared purpose to undo the unauthorized act. The form adopted, by itself and unexplained, would tend to an inference of ratification, but it is not left unexplained. The actual truth is established, and that truth must prevail over the form adopted as between parties who have not been misled, to their harm, by the form of the transaction as distinguished from its substance. The presumption which might have flowed from the form of the transaction disappears upon the explanation made, and in view of the substantial truth proved by the evidence.' Glenn v. Garth, supra, 133 N.Y. 36, 37, 30 N.E. 651, 652."
(75) I perused the judgments relied upon by learned counsel for the parties and on overall consideration of the submission advanced by learned counsel for the parties, I am of the view that the Vice Chancellor while exercising emergency power has nowhere recorded his satisfaction or reasons to arrive on the conclusion to exercise his emergency powers.
(76) The Vice-Chancellor is the Chairman of the Board of Management. A meeting to consider the claim of the petitioner for continuance in service was fixed on 23.10.2017, therefore, the exercise of power by the Vice Chancellor clearly demonstrates that the same has been exercised with ulterior motive. The impugned order clearly reflects that the same has been passed in an arbitrary manner under the influence of the Finance Officer, who has passed certain orders against the petitioner in regard to recovery of certain amount from him.
(77) It is well settled principle of law that the power should be exercised by the authority, who has been conferred power under the statutory provisions. The statutory authority cannot travel beyond the powers conferred. Any action without power has no legal sanctity in the eyes of law. Once, in the meeting held by the Board of Management of the University on 22.07.2017 it has been upheld that the petitioner shall continue to complete his tenure of five years, therefore, there was no occasion to exercise the power by the Vice-Chancellor in passing the impugned orders.
(78) The selection and appointment of the petitioner was made inviting applications from the open market in accordance with the provisions contained under the act and statute of the University for a period of five years. The same was subject matter of challenge in a writ petition filed for issuance of quo-warranto. This Court declined to interfere in the selection and appointment of the petitioner by recording finding that the petitioner is not usurper and directed to the Board of Management to consider his further continuance in the University by making certain observation and in pursuance thereof, the Board of Management in its meeting held on 22.07.2017 considered the claim of the petitioner and pleased to uphold the continuation for a tenure of five years.
(79) In view of the above, the exercise of power by the Vice-Chancellor appears tobe not justifiable in law.
(80) The powers given under the statute should be exercised with caution and restrain. The Vice-Chancellor while exercising the emergency powers has crossed the restrain provided under the statute to exercise this power, therefore, this Court is of the opinion that the action of the Vice-Chancellor cannot be termed to be valid action. Therefore, the order of the Vice-Chancellor being exercised in an arbitrary manner cannot be approved of.
(81) It is the tenure appointment on the post of Registrar of the University. The petitioner was granted appointment after holding a selection on the post of Registrar, therefore, the submissions advanced by learned counsel for the respondents that the appointment is bad in law cannot be accepted. The appointment was made by following the procedure prescribed under the act and statutes, therefore, the selection and appointment of the petitioner to that extent is valid.
(82) The dispute was in regard to submission of leave application that whether the application for grant of leave from BHU can be granted on deputation basis or on long leave basis was subject matter of consideration before the University and before this Court.
(83) Under the statute, the appointment on the post of Registrar on deputation basis is not permissible nor on the basis of long leave. But on the other hand, it should be kept in mind that the appointment on the post of Registrar of the BBA University was for a period of five years. The petitioner, who was holding the post of Assistant Registrar in BHU was selected on the post of Registrar of the BBA University. To save her earlier appointment on the post of Assistant Registrar in BHU, she applied for sanction of leave in BHU as long leave. The University, wherein the petitioner was granted appointment would not have objected on the leave granted to the petitioner.
(84) In case, due to some reasons the petitioner would not have permitted to continue or would not have selected in the further selection on the post of Registrar of the BBA University, then without retiring from service she would have retired on completion of five year in the present University. To save her appointment in the BHU, in case the University was ready to grant and sanction leave to the petitioner for five years, she tendered the leave application to the present University, the University would not have objected for the same.
(85) Grant of leave does not affects the nature of appointment in the present University. It was the concern of the University, wherein the petitioner was working prior to the appointment on the post of Registrar in this University. Therefore, the objection raised by learned counsel for the respondents on the grant of leave to the petitioner in the opinion of this Court the appointment cannot be termed to be illegal, which has been made by following the procedure prescribed under the Act of the University and statute framed thereunder.
(86) This is relevant to note that the appointment of the petitioner on the post of Registrar in the BBA University was a tenure appointment for a period of five years. This is very unfortunate that hearing in the case could not be concluded prior to expiry of tenure of five years, which has expired on 23.01.2019, thus, the tenure of appointment of five years of the petitioner cannot be permitted to continue beyond five year's period.
(87) In view of the above, no substantive relief can be granted to the petitioner due to expiry of tenure of five years of the post of Registrar but this Court is of the opinion that due to arbitrary and illegal exercise of power at the level of University and its authorities, the petitioner has suffered a lot.
(88) In regard to exercise of power at the level of Finance Officer of the University in refixation of salary of the petitioner and effecting recoveries against her, the Finance Officer of the University is not entrusted power to initiate proceeding against the Registrar of the University under any provision of the Act of 1994 and statute framed thereunder. Therefore, the action on the part of the Finance Officer is wholly without jurisdiction, as he has no power to pass an order against the Registrar of the University. In view of the above, the order being wholly without jurisdiction, is set aside.
(89) It is, however, directed to the University to issue fresh advertisement inviting applications from eligible and qualified candidates to apply and it is left open to the petitioner to apply for the same. It is, however, made clear that in case the petitioner applies in pursuance to the fresh advertisement, her claim shall be considered under strict provisions of the Act of 1994 and statute framed thereunder.
(90) In the result, this writ petition is partly allowed.
Dated:- 17.04.2019 Adarsh K Singh