Patna High Court
Dr. Neeraj Kumar @ Neeraj Kumar vs The State Of Bihar on 25 September, 2023
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1660 of 2023
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Dr. Neeraj Kumar @ Neeraj Kumar Son of Late Ravi Nandan Prasad Sinha,
Resident of Jehanabad House, Aadarsh House, Road No. 3, Professor Colony,
Near Lal Babu Market, North Shashtri Nagar, P.S. Shashtri nagar, L.B.S.
Nagar, Patna.
... ... Petitioner
Versus
1. The State of Bihar through Pr. Secretary Higher Education Department,
Government of Bihar, Patna.
2. The Vice Chancellor, Dr. Shailendra Kumar Chaturvedi, Veer Kunwar Singh
University, Arrah
3. The Registrar, Prof. Dhirendra Kumar Singh, Veer Kunwar Singh
University, Arrah
4. Vice Chancellor, Veer Kunwar Singh University, Bhojpur at Ara.
5. Dr. Vinay Kumar Mishra, Associate Professor and CCDC, PG, Physics
Department, Veer Kunwar Singh University, Bhojpur at Ara.
... ... Respondents
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Appearance :
For the Petitioner : Ms. Archana Sinha @ Archana Shahi, Advocate
For the State : Mr. Subhash Chandra Mishra, SC-16
For the University : Mr. P.K. Shahi, Sr. Advocate
Mr. Rajesh Prasad Choudhary, Advocate
Mr. Vivekanand Singh, Advocate
For the Resp. No. 5 : Mr. Sanjeev Kumar Mishra, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 25-09-2023
This writ application has been filed seeking the
following reliefs:-
"(i) For quashing of letter dated 28.11.2022 from the
post of Co-ordinator College Development Council
(CCDC) by which petitioner has been removed
arbitrarily from the post of CCDC without assigning any
reason, without issuance of any show cause notice,
without giving any opportunity of explanation, which is
a violation of natural justice.
(ii) For setting aside letter No. 1994/Estab/2022 by
which Dr. Vinay Kumar Mishra, Associate Professor,
Patna High Court CWJC No.1660 of 2023 dt.25-09-2023
2/21
PG Physics Department has been appointed on the post
of CCDC for the period left over of the petition, i.e.,
27.08.2024.
(iii) For removal of respondent no. 2 from the post of Vice Chancellor for not having the appropriate qualification for holding the post of Vice Chancellor.
(iv) For removal of respondent no. 3, i.e. Registrar Veer Kunwar Singh University, Arrah from the post of Registrar as he was retired from his post in August, 2022 after completion of 62 years and also that he was suspended from 1.6.2021 vide Ref no. VC(R)/50/2021 by VC Prof. Dr. D.P.Tiwari.
(v) For directing the independent agency to do inquiry against respondent no. 2 for defalcation of money for withdrawing highest salary in respect of non-production of Last Pay Slip.
(vi) For directing the respondents to withheld the appointment of Guest teacher and promotions of teachers under various schemes.
(vii) For any consequential relief or reliefs for which the petitioner is entitled during the course of hearing."
2. From the order dated 19.06.2023, it would appear that learned counsel for the petitioner has not pressed the prayer nos.
(iii) and (iv).
Vide I.A. No. 01/2023 which has been allowed by order dated 03.08.2023 the writ petition has been amended with the following prayer:-
"(viii) That the petitioner may be reinstated not only on the post of CCDC but he may be reinstated on all the post which he was holding at the time of removal from the post of CCDC with all notified works."
There is a statement that petitioner is withdrawing prayer no.
(v) of the main writ petition as the same is connected prayer with prayer no.(iii).
Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 3/21 Case of the Petitioner
3. In fact, the whole argument on behalf of the petitioner has centered around a challenge to the memo no. 1994 Estab/22 dated 28.11.2022 (Annexure '3' to the writ application) issued under the signature of the Registrar of Veer Kunwar Singh University, Arrah (Respondent No. 3) whereby and whereunder the petitioner who was appointed as a Co-ordinator College Development Council (in short 'CCDC') of the Veer Kunwar Singh University, Arrah (hereinafter referred to as the 'University') in terms of Section 14 B of the Bihar State University Act, 1976 (hereinafter referred to as the 'Act of 1976') has been removed and in his place, Dr. Vinay Kumar Mishra, Associate Professor (Respondent No. 5) has been appointed for the remaining period up to 27.08.2024.
4. It is the case of the petitioner that earlier he had held the post of Associate Professor since 05.11.2010. Again, the petitioner was appointed on the post of CCDC vide letter no. 1597/Estb dated 27.08.2021 for a period of three years. A copy of the letter dated 27.08.2021 has been enclosed as Annexure '1' to the writ application from which it appears that the petitioner was appointed on the post of CCDC in the light of Section 14 B of the Act of 1976.
Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 4/21
5. It is his stand that the Respondent No. 2 who joined as Vice-Chancellor in the University on 24.08.2022 was indulged in doing illegal works and started allotting the works of the petitioner to the Registrar. The post of the Registrar is a non-teaching post of University and the allotment of sensitive/financial matters to the Registrar was in fact an interference in the work of CCDC. There are allegations that Respondent Nos. 2 and 3 had ignored all parameters of the recruitment of Guest Teachers in the University and was taking gratification to appoint Guest Teachers in the University in illegal manner.
6. It is alleged that the petitioner being an elected member of the Senate, also an elected member of the Finance Committee had objected in the financial matters of the University in which Respondent Nos. 2 and 3 had by pressurizing the Purchase Committee got sanctioned Air Conditioner Cars for the University Officials. The petitioner has alleged that Respondent No. 2 was earlier working as a Teacher in Narayana Vidyapeth Management Institute, Kanpur which is a Self Finance Course and an affiliated Institute of the Abdul Kalam Technical University of Lucknow. He was not a Professor in any College and should not have been appointed as a Vice-Chancellor of any University. He has not produced his Last Pay Certificate (in short 'LPC') fixing Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 5/21 his salary and is withdrawing the highest salary against the work of Vice-Chancellor which is in the nature of financial irregularities and defalcation of public money.
7. As regards Respondent No. 3, it is stated that he is holding the post of Registrar of the University. He is a suspended employee whose suspension had never been revoked by any authority. He attained the age of superannuation in the month of August, 2022 after completion of 62 years but till today in spite of his suspension/retirement, he is working as Registrar of the University and is illegally drawing funds from the University. The grievance of the petitioner is that he has been removed from the post of CCDC without assigning any reason in the Memo No. 1994 (Annexure '3'). The petitioner has neither been heard prior to his removal before the completion of the three years period nor his representation in this regard has been considered.
Stand of the University
8. A counter affidavit has been filed on behalf of the respondent nos. 3 and 4. Mr. P.K. Shahi, learned senior counsel while representing the respondent nos. 3 and 4 has taken a plea based on the statements made in the counter affidavit. It is submitted that the petitioner does not have eligibility for the post of 'CCDC'. Referring to Section 14 B of the Act of 1976, learned Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 6/21 senior counsel submits that the post of 'CCDC' may be filled up only from and amongst the teachers who is not below the rank of Reader/Associate Professor. It is stated that the petitioner has not been promoted to the post of Reader/Associate Professor in the University till date and there is no notification to this effect.
9. Learned senior counsel has also taken this Court through the statute for promotion of Lecturer in the senior pay scale (Rs.3,000-5,000) to the post of Readers in the pay scale of Rs.3700-5700 and the placement of Lecturers in the senior scale of pay to the post of Lecturers in the selection grade (Rs.3700- 5700). Referring to the provisions contained in the statute, learned senior counsel submits that every Lecturer in the senior scale will be eligible for the promotion to the post of Reader in the scale of pay of Rs.3700-5700/- on the recommendation of the Bihar State University (Constituent Colleges) Service Commission, subject to the conditions contained under Clause (a) to (e). It is submitted that according to Clause '2' of the Statute, there shall not be any automatic promotion and the promotion shall be made on the recommendation of the Commission on consideration of experience, records and papers pertaining to the conditions laid down in Clause '1'.
Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 7/21
10. It is submitted that according to Clause '6', the Lecturers who are in the senior scale but do not have the Ph.D. degree or equivalent published work to meet the scholarship and research standard of a Lecturer to fulfill the other criteria laid down in Clause '1' and have a good record in teaching or participation in extension activities, shall be placed in the selection grade of Rs.3700-5700/-, subject to the recommendation of the Screening Committee and the Commission as mentioned in Clause '2'. Lecturers in the Selection Grade could offer themselves for a fresh assessment after obtaining Ph.D. Degree or fulfilling other requirements for promotion as Reader and if found suitable by the Screening Committee and the Commission, they shall be given the designation of Reader.
11. Learned senior counsel submits that even though the petitioner claims that he was promoted to the post of Associate Professor/Reader, the fact remains that he has only been placed on promotion from Lecturer (senior scale) to the Lecturer (Selection Grade) on the recommendation of the Selection Committee and on the basis of approval of Syndicate held on 10.08.2011 w.e.f. 05.11.2007. Reliance in this regard has been placed on Annexure 'A/1' to the counter affidavit.
Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 8/21
12. To distinguish the case of the petitioner from those promoted to the post of Reader, learned senior counsel has placed Annexure 'B' to the counter affidavit which is a notification issued by the University vide Memo No. 480/Estab/16 dated 30.05.2016. By this Annexure 'B', the Lecturer in senior scale who fulfilled the eligibility conditions have been promoted to the post of Reader as per provision of Career Advancement Scheme Statute. Dr. Binay Kumar Mishra, (respondent no. 5) is at serial no. 26 in Annexure 'B' and the effective date of his promotion to the post of Reader has been shown as 28.06.2012.
13. Learned Senior Counsel submits that on a bare reading of Section 14 B of the Act of 1976, it would appear that for the post of 'CCDC', it is necessary to be in the rank of Reader/Associate Professor of the University. It is submitted that the petitioner cannot claim that he is in the rank of Reader/Associate Professor only because he has been allowed the pay scale of Rs.3700-5700/-. The removal of petitioner has been sought to be justified on the ground that the then Vice-Chancellor had appointed the petitioner without adhering to the provisions contained in Section 14 B of the Act of 1976.
14. Learned Senior Counsel submits that the petitioner has wrongly got entries made in his service books showing himself Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 9/21 promoted to the post of Reader/Associate Professor on 01.03.2013 w.e.f. 05.11.2007 whereas the fact is that he obtained his Ph.D. degree only on 08.05.2013 and one of the conditions for the promotion to the post of Reader is that the Lecturer in the Senior Scale must have the Ph.D. degree. It is submitted that he is working as 'CCDC' in the University from 27.08.2021 to 28.11.2022. The petitioner has got entries made in the service book from page no. '22' onwards by the Principal of the concerned College and this has been done by misusing his position as 'CCDC'. It is submitted that since the petitioner does not have the eligibility for the post of 'CCDC', there shall be no need to serve any show cause notice to the petitioner prior to his removal as no prejudice would be caused to him. Reliance in this regard has been placed on the judgment of the Hon'ble Supreme Court in the case of Mohd. Sartaj and Another Vs. State of U.P. and Ors. reported in (2006) 2 SCC 315.
Rejoinder on behalf of the Petitioner
15. Replying to the submissions of learned Senior Counsel for the Respondent Nos. 3 and 4, learned counsel for the petitioner submits that the post of Lecturer (Selection Grade) is equivalent to the post of Reader/Associate Professor. Referring to the notification as contained in Memo No. P1/CCDC/136/Estab/10 Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 10/21 dated 20.02.2010 (Annexure 'R/1' to the rejoinder) and the notification contained in Memo No. 978/Estab/13 dated 01.03.2013 available with the rejoinder, learned counsel submits that on 05.11.2002, the petitioner was promoted to the post of Senior Lecturer on the basis of the recommendation of the Selection Committee, w.e.f. 05.11.2007, he was promoted to the post of Selection Grade/Reader in the meeting of the Selection Committee held on 01.03.2013. It is submitted that Selection Grade and Reader are in the same rank having same salary and perks. It is for this reason that after getting promotion on Selection Grade, the petitioner was promoted after three years on 05.11.2010 automatically and has been designated as Associate Professor in all the contemporaneous records of the University.
16. Learned counsel submits that the case of the petitioner would be covered by Clause 'ix' of paragraph '7' of the resolution No. 15/D1-01/09 Part-I, Higher Education H.E. dated 29th July, 2010. To strengthen her submission, learned counsel has taken this Court through the entries made in the service book which has been certified under the seal and signature of the Registrar of the University and the various contemporary documents in form of correspondences and the chart showing pay fixation with advance increment for those teacher's who obtained Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 11/21 their Ph.D. degree after 01.01.2006. Annexure 'R/2' to the rejoinder of the petitioner has been placed to show that designation of the petitioner has been shown as 'Associate Professor'. In the pay fixation and the correspondences the Registrar and the Vice- Chancellor of the University have also addressed the petitioner as "Associate Professor, Department of Hindi, H.D. Jain College, Arrah, Bhojpur." Learned counsel submits that in fact in the batch of this petitioner, the Lecturer (Selection Grade) have been given promotion to the post of Associate Professor but no notification has been issued to this effect by the University.
17. On the aforementioned grounds, learned counsel for the petitioner submits that the petitioner has the eligibility in terms of Section 14 B of the Act of 1976 but this issue being raised for the first time through statements made in counter affidavit, therefore, this Court need not travel into this issue and it would have been appropriate if the University decides this, if so advised, after considering the records and after hearing the petitioner.
Consideration
18. In the present writ application, it is an admitted position that the petitioner had been earlier appointed as 'CCDC'. He was again appointed on the post of 'CCDC' vide letter no. 1597/Estab dated 27.08.2021 for three years vide Annexure '1' to Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 12/21 the writ application. Annexure '1' to the writ application reads as under:-
"vf/klwpuk izks0 ¼MkW½ tehy v[rj] leUo;d] egkfo|ky; fodkl ifj'kn~ }kjk fn, x, vkosnu ij fopkj djrs gq, bUgsa leUo;d] egkfo|ky; fodkl ifj'kn~ ds dk;ksZ ls fojfer djus ds mijkUr fcgkj jkT; fo"ofo|ky; vf/kfu;e 1976 ;Fkk la"kksf/kr v|ru dh /kkjk 14 B esa fufgr izko/kku ds vkyksd esa MkW uhjt dqekj] ,lksfl,V izksQslj] fgUnh foHkkx] ,p0Mh0 tSu dkWyst] vkjk dks leUo;d] egkfo|ky; fodkl ifj'kn~ ohj dq¡oj fo"ofo|ky;] vkjk ds in ij rRdky izHkko ls vxys 3 o'kksZ ds fy, fu;qDr fd;k tkrk gSA ekuuh; dqyifr ds vkns"kkuqlkj g0@& dqylfpo Kkikad & 1597@Estab@2021 fnukad &27@08@2021 "
(Underline is mine)
19. It is evident on a bare reading of Annexure '1' that the petitioner has been described as Associate Professor in the Department of Hindi, H.D. Jain College, Arrah. He has been appointed for a period of three years. He has been removed vide notification contained in Memo No. 1994/Estab/2022 dated 28.11.2022 (Annexure '3') which reads as under:-
"vf/klwpuk fcgkj jkT; fo"ofo|ky; vf/kfu;e 1976 ;Fkk la"kksf/kr v|ru dh /kkjk 14 B esa fufgr izko/kku ds vkyksd esa MkW0 uhjt dqekj dks leUo;d] egkfo|ky; fodkl ifj'kn] ohj dq¡oj flag fo"fo|ky;] vkjk ds in ls eqDr djrs gq, MkW0 fou; dqekj feJk] ,lksfl,V izksQslj] LukrdksŸkj HkkSfrdh foHkkx] ohj dq¡qoj flag fo"ofo|ky;] vkjk dks rRdky izHkko ls leUo;d] egkfo|ky; fodkl ifj'kn]~ ohj dq¡oj flag fo"ofo|ky;] vkjk ds in ij "ks'k vof/k fnukad 27-08-2024 rd ds fy, fu;qDr fd;k tkrk gSA ekuuh; dqyifr ds vkns"kkuqlkj g0@& dqylfpo Kkikad & 1994@Estab@2022 fnukad &28@11@2022 "
Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 13/21
20. On a reading of this, it would appear that the petitioner has been removed from the post of 'CCDC' in the light of Section 14B of the Act of 1976 but save and except referring to the said provision, nothing has been stated showing the reasons for removal of the petitioner before expiry of its tenure of three years. Apparently and admittedly, no notice to show cause or prior information in any form was given to the petitioner providing the reasons for which the Vice-Chancellor of the University wanted to remove the petitioner. There is no whisper in the impugned memo (Annexure '3') that the petitioner was being removed because he was not an Associate Professor/Reader. Therefore, at the first instance, the petitioner has been able to make out a case of violation of principle of natural justice.
21. Learned Senior Counsel for the respondent University has given much emphasis on the various provisions of the Statute to demonstrate the procedures required to be followed to grant promotion to a Lecturer in Senior Scale and then to the post of Reader / Associate Professor. Reference has been made to the provisions contained in the Statute, however, there is no denial of the fact that the petitioner was placed in the Selection Grade of Rs.3700-5700/- which is the scale of pay for the post of Reader as well. In the service book of the petitioner, which has been certified Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 14/21 under the signature of the Registrar of the University, the petitioner has been shown as Associate Professor. In his pay fixation, he has been shown as Associate Professor and in fact, in his letter of appointment as 'CCDC' also, he has been shown as Associate Professor. Now, the entries made in the service book are being questioned for the first time and both sides have made submissions for and against as to the correctness of the entries in the service book.
22. On this issue, this Court is of the considered opinion that in the nature of the disputes which is being raised for the first time by filing a counter affidavit on behalf of the University in the present proceeding, it would not be just and proper for a Writ Court to delve into the facts and it would have only been in the fitness of the things that such issue should have been raised by the University, if at all so advised by calling upon the petitioner to explain his position.
23. On the face of the several materials which have been placed on behalf of the petitioner which include the certified entries made in the service book and the correspondences made by the Registrar and the Vice-Chancellor of the University and the chart showing pay fixation of the petitioner with advance increment, this issue need to be considered by the University Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 15/21 authorities at the first instance after giving appropriate opportunity of hearing to the petitioner.
Judgment in Mohd. Sartaj (supra)-Distinguished
24. Learned Senior Counsel for the University has relied upon a judgment of the Hon'ble Supreme Court in the case of Mohd. Sartaj (supra) wherein the Hon'ble Supreme Court has held that the appellants in the said case could not have been appointed on the post of Assistant Teachers without having training required under the rule, therefore, the appointment of appellants were dehors the rule and need not treated to be continued. In such circumstance, the Hon'ble Supreme Court held in paragraph '20' of the judgment as under:-
"20. In our opinion, on the above facts no prejudice has been caused to the appellants by not serving notice of giving hearing before the order of cancellation was issued."
25. To this Court, therefore, it appears that the judgment of the Hon'ble Supreme Court in the case of Mohd. Sartaj (supra) is in the facts of the said case. In the said case, facts were that the appellants were not qualified as they did not possess Basic Teacher's Certificate, Hindustani Teacher's Certificate, Junior Teacher's Certificate, or Certificate of Teaching or certificate of any other training courses recognised by the State Government as equivalent thereto at the time of their initial appointment. In view Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 16/21 of the basic lack of qualifications, they could not have been appointed nor their appointment could have been continued, hence, it was held that the appellants did not hold any right over the post and, therefore, no hearing was required before the cancellation of their services. The facts of the present case are quite different and distinct. In this case, the petitioner was given promotion as Lecturer (Selection Grade) with effect from 05.11.2007. He also obtained his Ph.D. degree on 08.05.2013 and it is not the case of the University that the petitioner is not qualified for the post of Associate Professor/Reader. As stated above, there are contemporaneous records showing that the petitioner was being described as Associate Professor and he has been getting the same pay scale. This Court, therefore, is of the considered opinion that the judgment in the case of Mohd. Sartaj (supra) would not help the respondent University.
Violation of Principles of Natural Justice -Prejudice-Burden of Proof-Explained
26. On the point of prejudice, this Court finds that by not giving an opportunity of hearing to the petitioner and then taking a stand in this Court that he is not an Associate Professor, in itself is likely to cause prejudice to the interest of the petitioner. First of all, such a decision has a civil consequence in as much as if it is Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 17/21 accepted, it will reduce the petitioner in his status. In the case of S.L. Kapoor versus Jagmohan and Others reported in (1980) 4 SCC 379, the Hon'ble Supreme Court has observed that a separate showing of the prejudice caused is not necessary and the non- observance of natural justice is in itself a prejudice caused. In fact, in the case of Mohd. Sartaj (Supra) itself, the Hon'ble Supreme Court has taken note of its earlier judgment in the case of State of Orissa v. Dr. (Miss) Binapani Dei and Others reported in AIR 1967 SC 1269 laying down the proposition that even if an administrative action involves civil consequences, it must observe rules of natural justice.
27. In the case of Mohinder Singh Gill versus Chief Election Commissioner, New Delhi and Others reported in AIR 1978 SC 851, the Hon'ble Supreme Court held in paragraph '8' as under:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji AIR 1952 SC 16 (at p. 18):
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 18/21 have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older. "
28. While dealing with the burden to prove prejudice, the Hon'ble Supreme Court observed in paragraph '55' as under:-
"55. Normally, natural justice involves the irritating inconvenience for men in authority, of having to hear both sides since notice and opportunity are its very marrow. And this principle is so integral to good government, the onus is on him who urges exclusion to make out why. Lord Denning expressed the paramount policy consideration behind this rule of public law (while dealing with the nemo judex aspect) with expressiveness:
"Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking "the Judge was biased'."
We may adapt it to the audi alteram situation by the altered statement:
"Justice must be felt to be just by the community if democratic legality is to animate the rule of law. And if the invisible audience sees a man's case disposed of unheard, a chorus of 'no-confidence' will be heard to say, 'that man had no chance to defend his stance'."
That is why Tucker, LJ in Russel v. Duke of Norfolk (1949) 1 All ER 109 (at 118 E) emphasised that 'whatever standard of natural justice is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case'. What is reasonable in given circumstances is in the domain of practicability; not formalised rigidity. Lord Upjohn in Fernando (1967) 2 AC 337) observed that: 'while great urgency may rightly limit such opportunity timerously, perhaps severely, there can never be a denial of that opportunity if the principles of natural justice are applicable'. It is untenable heresy, in our view, to lock-jaw the victim or act behind his back by tempting invocation of urgency, unless the clearest Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 19/21 case of public injury flowing from the least delay is self-evident. Even in such cases a remedial hearing as soon as urgent action has been taken is the next best. Our objection is not to circumscription dictated by circumstances, but to annihilation as an easy escape from a benignant, albeit inconvenient obligation. The procedural pre-condition of fair hearing, however minimal, even post-decisional, has relevance to administrative and judicial gentlemanliness. The Election Commission is an institution of central importance and enjoy far-reaching powers and the greater the power to affect others right' or liabilities the more necessary the need to hear."
Situational Modifications-Permissible
29. The Hon'ble Supreme Court observed that the Court may not be taken to say that "situational modifications to notice and hearing are altogether impermissible. They are, as the learned Addl. Solicitor-General rightly stressed. The glory of the law is not that sweeping rules are laid down but that it tailors principles to practical needs, doctors remedies to suit the patient, promotes, not freezes, life's processes, if we may mix metaphors." Tucker, LJ drove home this point when he observed in the Duke of Norfolk case (1949) 1 All ER 109) in the following words:-
"There are no words which are of universal application to every kind of inquiry .... The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."
This circumstantial flexibility of fair hearing has been underscored in Wiseman v. Borneman (1971) AC 297 by Lord Reid when he said he would be "sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules".
Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 20/21
30. In Mohinder Singh Gill case (supra) their Lordships of the Hon'ble Supreme Court referred Lord Denning in Salvarajan (1976) 1 All ER 12 at page 19. Relevant paragraph are being reproduced hereunder for a ready reference:-
"Lord Denning, with lovely realism and principled pragmatism, set out the rule in Selvaraian [(1976) 1 All ER 12, 19] :
"The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigation body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report."
31. This Court has recorded the stand of respondent no. 5 in it's order dated 04.09.2023 that let it be a contest between the petitioner and the University only.
32. In the light of the discussions made hereinabove, this Court is of the opinion that the impugned order as contained in memo no. 1994 Estab/22 dated 28.11.2022 (Annexure '3' to the writ application) being in violation of the principles of natural justice is liable to be set-aside. The same is accordingly, set-aside.
Patna High Court CWJC No.1660 of 2023 dt.25-09-2023 21/21
33. As a result of setting aside of the impugned order at Annexure '3', the petitioner shall continue as 'CCDC' in terms of Annexure '1' and with all notified works. If removed, he will be re-instated forthwith with all consequential benefits. Respondent No. 5 shall handover the charge to the petitioner.
34. In case the University is, so advised to take fresh steps, the same would follow the principle of natural justice. In the facts of the present case such decision shall be taken only with the approval of the Chancellor of the University. Petitioner is at liberty to raise other issues, if any, before the Hon'ble Chancellor of the University.
35. This writ application stands allowed to the extent indicated above.
(Rajeev Ranjan Prasad, J) avin/-
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