Himachal Pradesh High Court
Himachal Pradesh University vs Dr. Pramod Sharma on 24 October, 2017
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
HO'BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No.2366 of 2017
.
Decided on: October 24, 2017
Himachal Pradesh University ..........Petitioner
Versus
Dr. Pramod Sharma ........Respondent
_________________________________________________
Coram:
The Hon'ble Mr. Justice Dharam Chand Chaudhary, J.
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes.
For the petitioner : Mr. Shrawan Dogra, Sr. Advocate with Mr. J.L. Bhardwaj, Advocate.
For the respondent : Mr. B.C. Negi, Sr. Advocate with Mr. Nitin Thakur, Advocate.
Dharam Chand Chaudhary, J. (Oral).
The power of judicial review has been sought to be exercised by this Court to quash and set aside the impugned order dated 18.10.2017, Annexure P-2, passed by learned H.P. Administrative Tribunal, in O.A. No.4971 of 2017, on the grounds, inter-alia, that the same is without any 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 10/11/2017 12:14:09 :::HCHP 2jurisdiction as grant of interim injunction against statutory provisions is not legally permissible and that in interim the .
main relief claimed in the original application could have not been granted. Also that the right to contest election being not a Fundamental Right nor a Common Law Right, the impugned amended provisions contained under Ordinance 35.20 of Himachal Pradesh University First Ordinances, 1973 (in short 'Ordinances'), are neither unconstitutional nor violate fundamental rights of the respondent (hereinafter referred to as 'original applicant').
2. The original applicant is working as Professor in Business School of Himachal Pradesh University, the petitioner herein, however, hereinafter referred to as the respondent-University in short. He was appointed as Assistant Professor in the year 1997. Also that he had previously contested the assembly elections from Kumarsain and Theog legislative assembly constituencies in the years 2003, 2007 and 2012, respectively. The University teachers 2 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 3 as per un-amended provisions contained under Ordinance 35.20 of the First Ordinances, were entitled to contest the .
State Assembly/ Parliament Elections and also being allowed to avail leave of the kind due for this purpose. However, Ordinance 35.20 was amended by the respondent-University vide notification dated 24.12.2014 (Annexure A-1 to the original application) and thereby made provisions that neither teachers nor employees of the University shall take part in any political activity. According to the original applicant, when the right to contest an election is not only a constitutional right but also a fundamental right granted to citizens under Article 21 of the Constitution of India, the same could have not been restricted by way of carrying amendment in Ordinance 35.20 and thereby imposing restrictions upon the University teachers and employees. The restrictions so imposed have been claimed to be highly unreasonable, arbitrary, oppressive and also in violation of Article 14 of the Constitution of India. Reference has also been made to the 3 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 4 provisions contained under Article 171 (3)(c) of the Constitution of India, which provide for a separate .
constituency exclusively for teachers to the legislative council, a political body. By way of amendment not only the constitutional and fundamental right of the applicant to contest the election, is stated to be abrogated but has also extended a right to respondent-University to initiate disciplinary action against him in case he contests elections during the course of his employment as teacher. It was also urged in the original application that the procedure prescribed under Section 40(2) and 40 (3) of the Statute governing the procedure to be followed at the time of carrying out amendment in the First Ordinances, has also not been followed and observance if any of such prescribed procedure is there, the same is more in its breach rather than in its compliance. To substantiate such claim, it has been averred that the prescribed procedure provided for obtaining the assent of the Chancellor in consultation with the State 4 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 5 Government to the proposed amendment is also stated to be missing in this case. It is in this backdrop the original .
applicant has prayed for the grant of following reliefs:
"(i) Quash Annexure A-1, impugned notification dated 24.12.2017.
(ii) Direct the Respondent authorities to permit the applicant to contest in the upcoming elections to the Himachal Pradesh Legislative Assembly. ..."
3. In the interim, the operation of impugned notification dated 24.12.2014 (Annexure A-1), was sought to be stayed.
4. The original application came to be listed for the first time before learned Tribunal on 20.09.2017, when the following order came to be passed:-
".....O.A. No.4971 of 201720.09.2017 Present: Mr. Bipin C. Negi, Senior Advocate with Mr. Narender Singh Thakur, Advocate for the applicant.
Mr. Raj Kumar Negi, Advocate vice Mr. Jiya Lal Bhardwaj, Advocate for the respondent.
Heard. Notice.
5 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 6Mr. Raj Kumar Negi, Advocate appearing vice Mr. Jiya Lal Bhardwaj, learned Standing .
Counsel waives service of notice on behalf of the sole respondent.
Reply be filed within three weeks.
List on 18.10.2017.
Sd/-
(Justice V.K. Sharma)
September 20, 2017 Chairman. ...."
5. Instead of 18.10.2017, the returnable date, the original application was taken up a day prior to that, i.e. on 17.10.2017. The order passed on that day also reads as follows:-
".....O.A. No.4971 of 201717.10.2017 Present: Mr. Bipin C. Negi, Senior Advocate with Mr. Narender Singh Thakur, Advocate for the applicant.
Mr. Sanjay Bhardwaj, Advocate vice Mr. Jiya Lal BHardwaj, Advocate for the respondent.
Reply not filed.
6 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 7On the request of the learned vice counsel appearing on behalf of the respondent-
.
University, list on 18.10.2017.
However, in the meanwhile, the learned Standing Counsel for the respondent shall also obtain instructions in the matter.
Sd/-
(Justice V.K. Sharma) Chairman Sd/-
r (Prem Kumar)
October 17, 2017 (Member (Administrative)..."
6. On the next date, i.e. 18.10.2017, though reply on behalf of the respondent-University was not filed, however, on instructions, learned counsel had informed learned Tribunal that the matter requires adjudication.
Consequently, the order dated 18.10.2017 (Annexure P-2), under challenge in this writ petition, came to be passed after hearing learned counsel on both sides and taking into consideration the statutory provisions as well as un-amended and amended provisions contained under Ordinance 35.20 7 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 8 and also the law laid down by the High Court of Andhra Pradesh. Learned Tribunal has stayed the impugned .
notification (Annexure A-1) to the original application to the extent it relates to the amendment of Ordinance 35.20 of the First Ordinances of respondent-University.
7. Since reply has not yet been filed to the original application and as the impugned order has been assailed on legal grounds alone as highlighted at the very outset, therefore, with the consent of learned counsel on both sides, we proceeded to hear and decide this petition at admission stage itself.
8. Mr. Shrawan Dogra, Senior Advocate assisted by Mr. J.L. Bhardwaj, Advocate, learned Standing Counsel for the respondent-University, has mainly emphasized on the following questions of law to persuade us to exercise the power of judicial review to quash and set-aside the impugned order:-
(i) The interim order passed without jurisdiction is nullity in the eyes of law;8 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 9
(ii) It is not legally permissible to grant the main relief in interim;
.
(iii) The grant of interim injunction against the statute/ statutory provisions, is not legally permissible and
(iv) Right to contest election is neither fundamental right nor common law right, hence, the restriction imposed upon the teachers and employees of University not to take part in any political activity, is neither unconstitutional nor violatiive of the fundamental right of the original applicant.
9. Additionally, in view of the impugned amendment in the Ordinances having been approved on 04.12.2014 and duly notified vide impugned notification (Annexure A-1), dated 24.12.2014, the original application suffers from inordinate delay and latches, the procedure prescribed under the first statute of respondent-University for carrying amendment in Ordinances was fully complied and the impugned amendment has been made after obtaining the assent of the Chancellor and that the recommendation made 9 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 10 by a Committee constituted by the Government to frame rules/regulations etc., could have not been taken into .
consideration by learned Tribunal while allowing the prayer made for the grant of interim relief.
10. Mr. B.C. Negi, Sr. Advocate assisted by Mr. Nitin Thakur, Advocate, has urged that taking away the right of teachers like original applicant to contest assembly election on availing the leave of the kind due, is an action concerning with service condition and as such, the present being a service matter within the meaning of Section 3(q) of H.P. Administrative Tribunal Act, the original applicant has rightly invoked the jurisdiction of learned Tribunal for redressal of his grievances by filing the original application. It is also argued that the respondent-University has failed to file reply to the original application on its behalf despite opportunity granted and ld. counsel rather sought adjudication of the matter, ld. Tribunal has proceeded further in the matter and not only extended time for filing reply to the original application 10 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 11 by the respondent-University but in peculiar circumstances has rightly stayed the operation of impugned amendment in .
the Ordinances, i.e. notification Annexure A-1 and thereby facilitated the contesting of assembly election by the original applicant. According to Mr. Negi, all the points urged on behalf of respondent-University, at this stage, are premature as even the response to original application has also not been yet filed. The remedy available to the respondent, if any, is to file reply to the original application and get the points in issue first adjudicated by learned Tribunal.
11. This Court has also been apprised qua the subsequent development, i.e. issuance of communication dated October 21, 2017, by the respondent-University not only issuing "No Objection Certificate" thereby but also granting extra ordinary leave (without pay) w.e.f. 21.10.2017 to 30.12.2017 in favour of the original applicant, enabling him to contest ensuing Legislative Assembly Election. The relevant portion of the communication, addressed by the 11 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 12 respondent-University to the original applicant Dr. Pramod Shama, reads as follows:-
.
"With reference to your application dated 21.10.2017 on the above noted subject, the Hon'ble Vice-Chancellor in terms of the order passed by the Hon'ble HP Administrative Tribunal in OA No.4971/17 titled as Dr. Pramod Sharma Vs. H.P. University, has been pleased to accord his approval to grant no objection certificate and extra-ordinary leave (without pay) w.e.f.
21.10.2017 to 30.12.2017 to contest the ensuing Himachal Pradesh State Assembly Election 2017 subject to the outcome of the proposed Civil Writ Petition being filed by the H.P. University before the Hon'ble High Court of HP against Order dated 18.10.2017 passed by the Hon'ble HP Administrative Tribunal as well as the final outcome of the OA No.4971/2017 filed by you.
In the event of vacating the order dated 18.10.2017 passed by the Hon'ble HP Administrative Tribunal you will have to resign from the service of the University."12 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 13
12. Mr. Negi has further pointed out that the original applicant has been sponsored by a National Political Party to .
contest the assembly election from Shimla (Rural) Assembly Constituency and he even has filed his nomination papers also. Therefore, it has been urged that allowing the impugned amended provisions in the Ordinances to continue that too when the election process has already commenced, is not legally permissible. The impugned order, as such, has been sought to be affirmed.
13. Now, if adverting the grounds of challenge raised on behalf of the respondent-University in the light of rival contentions, statutory as well as constitutional provisions and also the law cited at bar, since the question of jurisdiction is a mixed question of law and facts and as the respondent-
University has failed to file reply despite four weeks time granted to do so by learned Tribunal, therefore, we refrain ourselves from making any observations touching merits of the case as in that event prejudice is likely to be caused to 13 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 14 the case of either party on merits and leave this question open to be considered and adjudicated by learned Tribunal .
after taking on record the response of respondent-University.
It is, thus, not deemed appropriate to elaborate this part of the case of the respondent-University any further nor to discuss the case law as cited at bar.
14. Now, if coming to the second point urged on behalf of the respondent-University, no doubt, the Apex Court in Union of India and Others versus Oswal Woollen Mills Ltd., (1984) 2 Supreme Court Cases 646, has deprecated the practice of granting an exparte interim order staying thereby statutory order such as the one under Clause 8-B of the Import Control Order, 1955, by the competent authority in the discharge of its official duty and in the larger public interest on the ground that the power and consequences which may ensue itself justify the grant of stay order without there being sufficient grounds justifying that the order so passed is abuse of the power conferred under 14 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 15 the statute. However, the present is not a case of granting exparte stay order and rather notice of the original .
application and also that of interim application was given to respondent-University, which failed to file its response irrespective of four weeks time granted by learned Tribunal and on the other hand, the matter qua interim relief was sought to be adjudicated without there being its response on record. On the other hand, since by way of impugned amendment, the respondent-University has imposed restriction upon teachers and its employees not to participate in any political activity which prima-facie includes to contest election, the same if not in violation of Articles 14 and 21 of the Constitution of India nor an infringement of fundamental right of the original applicant prima-facie restricted his legal right to contest the election and in such a peculiar situation, withholding of interim relief would have virtually resulted in the dismissal of the original application itself for the reason that the Election Commission has already announced the 15 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 16 programme for holding election to Himachal Pradesh Legislative Assembly on 9th November, 2017. Therefore, by .
the time the original application will ripe for hearing, nothing would have left to be allowed as relief even if legally admissible.
15. Otherwise also, the element of grant of interim relief, i.e. existence of prima facie case, balance of convenience, irreparable injury as well as comparative mischief, would have been greater to the original applicant as compared to the respondent, in the event of interim relief declined, exists in favour of the original applicant in the case in hand. Therefore, the facts of this case and the one before, the Apex Court being slightly different, the ratio of the judgment in Oswal Woollen Mills Ltd. Case cited (supra), is not attracted to the present case. Mr. Shrawan Dogra, learned Senior Advocate, has also placed reliance on the judgments passed by the Apex Court in Council for Indian School Certificate Examination versus Isha 16 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 17 Mittal and Another, (2000) 7 Supreme Court Cases 521; Union of India and Others versus Modiluft Ltd., .
(2003) 6 Supreme Court Cases 65 and Mukhiya Karyapalak Adhikari, Uttar Pradesh Khadi Tatha Gramodyog Board Karmit Anubhag, Lucknow Karmit and Another versus Santosh Kumar, (2011) 12 Supreme Court Cases 654. No doubt, as per the principles settled therein, normally the final relief cannot be granted by way of interim but not in each and every case.
The grant of such a relief depends upon the facts and circumstances of a particular case which of course cannot be granted exparte and without affording an opportunity of being heard to the opposite party and recording satisfaction qua existence of prima-facie case, balance of convenience and irreparable injury. However, the nature of interim relief as granted vide impugned order, Annexure P-2, by learned Tribunal could have been granted or not, is left to be considered hereinafter, i.e. in later part of this judgment.
17 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 1816. In order to buttress the arguments addressed by Mr. Dogra, learned Senior Advocate, qua point No.3 (supra), .
the reliance has been placed on the judgment of Apex Court in Cotton Corporation of India Limited versus United Industrial Bank Limited and Others, (1983) 4 Supreme Court Cases 625. As a matter of fact, the point in issue in that case and as considered by a Division Bench of Hon'ble Apex Court, was that temporary injunction under Order 39 read with Section 151 of the Code of Civil Procedure restraining thereby a person from instituting any proceedings which he/she is otherwise entitled to institute in a Court not subordinate to that from which the injunction was sought, should be granted or not. The Hon'ble Apex Court has been pleased to decide the question so raised before it in negative with the observation that the Court has no jurisdiction either under Section 41(b) of the Specific Relief Act or under its inherent powers under Section 151 CPC to restrain a person from instituting any proceeding which such person is 18 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 19 otherwise entitled to institute in a Court of law not subordinate to the Court from which the injunction was .
sought. The present, however, again is not a case of this nature because here the grievance of the original applicant is that his legal right to contest the election has been taken away by the respondent-University by way of impugned amendment in Ordinance 35.20 of its First Ordinances. The law laid down by the Hon'ble Apex Court in Rajbala and Others versus State of Haryana and Others, (2016) 2 Supreme Court Cases 445, at this stage is hardly of any help to the respondent-University, of course it may take the support of this judgment at the time of final adjudication of the original application.
17. Therefore, we find the present a fit case where the interim order was necessarily required at least to protect the legal right of the petitioner to contest the ensuing Legislative Assembly Election 2017.
19 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 2018. As per the 4th point raised on behalf of the respondent-University, true it is that the contesting of an .
election is neither a Constitutional Right nor Fundamental nor under Common Law, as the Hon'ble Apex Court has held in Javed and Others versus State of Haryana and Others, (2003) 8 Supreme Court Cases 369; K. Krishna Murthy (Dr.) & Others versus Union of India and Another, (2010) 7 Supreme Court Cases 202 and Shyamdeo Pd. Singh versus Nawal Kishore Yadav, (2000) 8 Supreme Court Cases 46, however, as per further ratio of the judgment so cited, it is a legal right. The amendment in ordinance according to respondent-University has been made in its First Ordinance after due compliance of the procedure prescribed for the purpose under the first statute and also after obtaining approval of the Chancellor.
However, nothing to substantiate such claim is yet placed on record by the respondent-University and on the other hand, the amended provisions take away the legal right of the 20 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 21 petitioner to contest election. Therefore, a prima-facie case for granting interim order is made out in his favour. Whether .
he is entitled to the grant of the kind of leave due or grant of "No Objection Certificate" to contest election, are, however, the questions to be considered and adjudicated at an appropriate stage after taking on record the version of the respondent-University.
19. True it is that the impugned amendment even if in accordance with the prescribed procedure was approved and notified on 24.12.2014 vide notification Annexure A-1, an action by the original applicant could have been instituted within one year from the date of the cause of action.
Reference to this effect can be made to the provisions contained under Section 21 of the H.P. Administrative Tribunal Act. However, in the case in hand, the cause of action prima-facie has accrued in favour of the original applicant on announcement of the general election of Himachal Pradesh Legislative Assembly by the Election 21 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 22 Commission during this month, i.e. October, 2017.
Otherwise also sub section 3 of Section 21 of the .
Administrative Tribunals Act, 1985, extends a right in favour of the applicant to present an application in the Tribunal for redressal of his grievance even after expiry of the prescribed period and learned Tribunal may entertain the same if satisfied that the applicant has sufficient cause for not making the application within the stipulated period. In the case in hand, prima-facie the cause of action to file the original application has arisen in favour of the original applicant during this month itself. Any how, we leave this question open to be considered and decided by learned Tribunal at an appropriate stage during the course of further proceedings in the original application.
20. Now, if coming to the question that an order staying the impugned notification Annexure A-1 to the original application to the extent of it relates to the amendment of Ordinance 35.20, we are in agreement with 22 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 23 the submissions made by Mr. Dogra, learned Senior Advocate, for the reason that a blanket order staying thereby .
the operation of the impugned amended Ordinance 35.20 could have not been passed and rather its operation stayed only qua the original applicant alone that too subject to final outcome of the original application he preferred. The necessary consequences of the order of this nature obviously would amount to allowing each and everyone, i.e. teachers and employees in the University to participate in all political activities which not only confine to contest the election but also joining political parties by them, attending meetings, processions and Dharnas etc. inside and outside the University campus sponsored by their respective parties.
They may also participate in election campaign etc. etc. Such activities by public servants are, however, not legally permissible. Therefore, if the impugned order is permitted to continue, it will result in far reaching consequences 23 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 24 detrimental to the larger public interest besides being not in the interest of administration also.
.
21. Therefore, in modification of the impugned order, the operation of the impugned notification (Annexure A-1) to the extent it relates to the amendment of Ordinance 35.20, is ordered to be stayed qua the original applicant alone subject to final outcome of the original application he preferred. The respondent-University vide its communication dated October 21, 2017, referred to hereinabove and produced on record by learned counsel for the original applicant, has not only granted No Objection Certificate but also sanctioned extra ordinary leave (without pay) w.e.f. 21.10.2017 to 30.12.2017 to contest the ensuing Himachal Pradesh State Legislative Assembly Election 2017, subject to the outcome of this writ petition and also the final outcome of the original application filed by the applicant before learned Tribunal.
22. The operation of the impugned notification dated 24.12.2014, Annexure p-1 (colly), to the extent it relates to 24 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 25 the amendment of Ordinance 35.20 though shall remain stayed, however, only qua respondent-original applicant Dr. .
Pramod Sharma, during the pendency of the original application before learned Himachal Pradesh Administrative Tribunal. The interim protection granted to him, however, shall be subject to the final outcome of the original application. In the event of the original application if ultimately dismissed and the interim order vacated, further consequences in accordance with law shall follow.
23. As mutually agreed, the reply to the original application on behalf of the petitioner-University shall be filed within one week from today. Rejoinder, if any, within one week thereafter. In the nature of the dispute involved, we expect that the original application is decided by learned Tribunal at the earliest preferably within eight weeks from the date of receipt of copy of this judgment and also the records.
25 ::: Downloaded on - 10/11/2017 12:14:10 :::HCHP 2624. The writ petition is accordingly disposed of.
Pending applications, if any, shall also stand disposed of.
.
The record of the original application be returned through special messenger, forthwith.
Copy 'Dasti'.
(Dharam Chand Chaudhary)
r Judge
(Vivek Singh Thakur)
October 24, 2017 (ysc) Judge
26
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