Sikkim High Court
Rajendra Prasad vs Sikkim University And Ors on 2 November, 2019
Equivalent citations: AIRONLINE 2019 SK 62
Author: Meenakshi Madan Rai
Bench: Meenakshi M. Rai, B. R. Pradhan
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED: 2nd NOVEMBER, 2019
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DIVISION BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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WA No.02 of 2015
Appellant : Rajendra Prasad
versus
Respondents : Sikkim University and Others
Appeal under Rule 148 of the Sikkim High
Court (Practice and Procedure) Rules, 2011
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Appearance
Appellant in person.
Mr. R. K. Dev Choudhury, Advocate for Respondents No.1
and 2.
Mr. Thinlay Dorjee Bhutia, Advocate for Respondent No.3.
Ms. Pollin Rai, Assistant Government Advocate for
Respondent No.4.
None for Respondents No.5, 6 and 7.
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JUDGMENT
Meenakshi Madan Rai, J.
1. Dissatisfied with the finding of the learned Single Judge in WP(C) No. 12 of 2012, by which the Writ Petition was dismissed, the Appellant assails the Judgment dated 17.04.2015.
2. In the Writ Petition, the prayers of the Petitioner (the Appellant herein) were for quashing of the entire recruitment process under the two Appointment Notices, one dated 29.04.2010 (Annexure P-1) and the second dated 28.04.2011 WA No. 02 of 2015 2 Rajendra Prasad vs. Sikkim University and Others (Annexure R/2-17), on the basis of which the Respondent No.2 issued appointments to vacant posts in its teaching faculty. That, the private Respondents No.5, 6 and 7 in the Writ Petition being appointees to the posts of Assistant Professors, be allowed to remain in service on temporary basis until fresh recruitment process is concluded in terms of the rules and regulations. He also sought the quashing of the Termination Order dated 16.03.2012, by which his services were terminated and reinstatement into service with continuity and back wages. The learned Single Judge having discussed the points raised by the Appellant in the Writ Petition, concluded as follows in the impugned Judgment;
"7. The substantive prayers in the Writ Petition are for quashing (i) the selection process and, (ii) the order of termination of the Petitioner. In so far as the first prayer is concerned, it has already been held that there was no illegality committed by the Respondents No.1 and 2 in the recruitment process as alleged by the Petitioner and also that the Petitioner having acquiesced in the position, had waived his right to question the selection process. As regards the second prayer also, it has been held that the order of termination of the Petitioner was issued in due compliance of the procedure laid down in the relevant Statutes and Act of the Sikkim University and was not arbitrary. It would also be significant to note that the Petitioner was a contractual employee the term of which expired on 31-03-2012. Therefore, the prayer for reinstatement of the Petitioner in service with back wages could not have been allowed. Although the termination was effective from 16-03- 2012, the salary for the remaining period also had been paid to him and was issued with an experience certificate sought for by him by orders of this Court details of which shall be stated hereafter.
8. The Writ Petition thus fails on account of both its merit and its maintainability.
9. In the result, the Writ Petition is dismissed.
10. However, before parting, it is observed that quite apparent from the records, the Petitioner was terminated from his service on 16-03-2012 WA No. 02 of 2015 3 Rajendra Prasad vs. Sikkim University and Others when his contractual tenure was to end 15 (fifteen) days later, i.e., on 31-03-2012. The Petitioner was paid for the entire period till 31-03-2012 by order of this Court dated 25-02-2013 in CM Appl No.18 of 2013 and experience certificate was also issued pursuant to subsequent order dated 16-07-2013 in CM Appl No.31 of 2013. In view of this and in view of the fact that the Petitioner is a young person with aspirations for future employment, in the interest of justice, the Respondent University shall consider converting the order of termination of his contractual service dated 16-03-2012 as termination simplicitor by deleting the last words "on grounds of misconduct"."
3. The facts in the Writ Petition are necessarily to be delved into for clarity in the matter. Vide Order dated 23.09.2008 the Appellant was appointed on contract w.e.f. 01.10.2008 as an Assistant Professor, in the Respondent No.2 University in the "Department of Peace and Conflict Studies and Management," for a period of six months on consolidated salary, which post he joined accordingly. On completion of the contractual period, on submission of fresh application, he was reappointed in the same post, the last letter of appointment on contract having been issued to him on 02.01.2012 employing him up to 31.03.2012.
4. In the meanwhile, on 29.04.2010, the Respondent No.2 issued advertisements in various local, national newspapers and the website of the University, advertising vacancies in regular teaching positions. The Appellant applied for the post of Assistant Professor in the "Department of Peace and Conflict Studies and Management" and was required to and appeared for the interview on 15.02.2012 at New Delhi. When the results were declared he emerged unsuccessful. Aggrieved, the WA No. 02 of 2015 4 Rajendra Prasad vs. Sikkim University and Others Appellant submitted a written representation on 27.02.2012 before the Second Executive Council of the Respondent No.2, complaining of gross violation of the Sikkim University Act, 2006 (for short "Act of 2006") and Statutes of the Act of 2006 (hereinafter, "Statutes") and serious lapses on the part of the University in the recruitment process. However, pursuant to the submission of the representation, the Appellant and three others were issued Show Cause Notice by the Respondent No.2. By the second meeting of the Second Executive Council held on 16.03.2012, the services of the Appellant and another contractual faculty member were dispensed with allegedly on grounds of misconduct, sans opportunity to defend the accusation, thereby allegedly violating Clause 26 of the Statutes. The Appellant averred that the results of the interview were neither published in the newspapers nor affixed in the Notice Board or the website of the Respondent No.2 but letters offering appointment were issued to the private Respondents, while he learnt of his failure only on enquiry from the University. That, although the regular posts were sanctioned by the University Grants Commission (for short "UGC Regulations") during the year 2008-2009, the advertisements thereto were published only on 29.04.2010, while the interview came to be conducted later between 10.01.2012 and 17.02.2012 in the absence of both the Executive and the Academic Council. Besides, the University failed to adhere to the provisions of Clause 18(1) and (2) of the Statutes which prescribes details of members who are to constitute the Selection Committee. Instead the members of the WA No. 02 of 2015 5 Rajendra Prasad vs. Sikkim University and Others Selection Committee were selected by the Respondent No.1, usurping powers endorsed to the Executive and the Academic Council to facilitate selection of his own candidates to the vacant posts. This was done despite the Memorandum No.F.3-9/97- Desk(U), dated 11.06.2001, of the Government of India which explicitly prohibits Vice Chancellors from exercising emergency powers. That, the first Executive Council demitted Office on 03.04.2011 and the first Academic Council on 24.08.2011. Thereafter the first meeting of the Second Executive Council was held on 22.02.2012 but interviews were conducted in the intervening period as mentioned supra during the absence of both Councils. In the said meeting of 22.02.2012 recommendations of the Selection Committee were endorsed and appointment letters issued to the private Respondents however, the Executive Council meeting lacked the minimum requisite quorum of seven members as only six members were present as evident from a response to an RTI query. The interview was held at Delhi away from the Gangtok Head Office. The Respondent No.2 also conducted a test for Computer Skills with no notice of such test either in the advertisement or call letter. That, the roster reservation policy was not implemented in both the impugned advertisements, neither was any representative of the SC, ST or OBC communities included in the Selection Committee against the mandate of Section 5.1.1 [a(6)] of the UGC Regulations, dated 30.06.2010. A copy of the Certificate issued by the concerned Authority declaring the Appellant to be from the Other Backward Class was also WA No. 02 of 2015 6 Rajendra Prasad vs. Sikkim University and Others annexed. Assailing the entire selection process as surreptitious, arbitrary, mala fide and in violation of the provisions of the Statutes, the Appellant sought the reliefs in the Writ Petition as extracted supra.
5. The Respondents No.1 and 2, while inter alia admitting in their response that the impugned interview took place on 15.02.2012, stated that the Appellant participated in the interview without protest along with other applicants and is now estopped from challenging the selection process. The results of the interview were sealed in an envelope on 15.02.2012 itself, by the Selection Committee and on 22.02.2012, at the first meeting of the Second Executive Council held at Gangtok, Sikkim, the results were opened and declared. Consequently, the Respondents No.5, 6 and 7 being successful, came to be appointed as Assistant Professors in the Department of Peace and Conflict Studies and Management. Admittedly, the aggrieved Appellant having failed, along with his colleagues submitted a representation dated 27.02.2012 before the members of the Second Executive Council, but instead of awaiting the decision, the Appellant on 28.02.2012 went to the Press making false allegations and insinuations against the authorities of the University. Consequent thereto on 06.03.2012, the Respondent No.2 with the approval of the Respondent No.1, sought an explanation from the Appellant for his act of breach of privilege. Instead of showing cause, the Appellant questioned the competence of the Respondent No.2 to issue the said letter. That, on 16.03.2012, the Associate Professor, Department of WA No. 02 of 2015 7 Rajendra Prasad vs. Sikkim University and Others Peace and Conflict Studies and Management, reported to the Respondent No.2 that the Appellant was abstaining from routine activities of the Department and had not taken classes. In the second meeting of the Second Executive Council held at New Delhi, on 16.03.2012, following discussions the services of the Appellant and another faculty member were terminated from the same afternoon on grounds of misconduct. The Respondents No.1 and 2 also denied the allegation of procedural lapses in the recruitment process or flouting of Clause 18(1) and 2 of the Statutes in the constitution of the Selection Committee. That, Block Roster Reservation Policy was followed and there was no mala fide exercise of emergency powers by the Vice Chancellor who acted on the directions and authorisation of the First Executive Council and the First Academic Council in their meeting held on 03.04.2011 and 20.08.2011 respectively, to nominate the required number of members to the Selection Committee. Denying that the Respondent University fell under the provisions of Section 5.1.1 of the UGC Regulations, dated 30.06.2010, it was asserted that they are governed by the provisions of Clause 18(2) of the Statutes. That, no procedure is prescribed for the University to declare results of the interview in accordance with the suggestions of the Appellant and the practice is to telephonically inform the successful candidates, followed by issuance of appointment letters to them. That, the principles of natural justice and Clause 26 of the Statutes were not flouted as the services of the Appellant being contractual was regulated by the terms of the contract, which, at Clause 10 WA No. 02 of 2015 8 Rajendra Prasad vs. Sikkim University and Others specifies that his services may be terminated without notice if he was found guilty of violation of one or more of the terms set out in the letter. Besides, the Selection Committee constituted of many eminent experts and public figures. Explaining as to why the recruitments were made during the period pointed out, it was submitted that the UGC had sanctioned teaching posts against its "XI Plan allocation" and the recruitments were to be concluded during the said Plan period. However, the interviews could not be conducted during the existence of the First Executive Council and First Academic Council due to the absence of visitor's nominee and also the time entailed for carrying out the essential shortlisting and other procedures, including finalising of the dates of interview, duly considering the availability of the visitor's nominee and other Selection Committee members. That, the Second Executive Council in its first meeting held on 22.02.2012 fulfilled the requisite six members in terms of Clause 11(3) of the Statutes contrary to the Appellant's allegation, as two-third of the existing members of the Executive Council comprise the quorum. The interviews were conducted at Delhi as per the suggestions of the visitor's nominee and other Selection Committee members who came from different parts of the country, for which the candidates were paid TA/DA and the date of interview was intimated to the Appellant two months prior to the interview i.e. on 20.12.2011. That, the Computer Skills Test was conducted by the University to assess the knowledge of computers of the applicants as a mandatory qualification before participants appear for the WA No. 02 of 2015 9 Rajendra Prasad vs. Sikkim University and Others interview. The recruitment process was carried out in absolute adherence to the Act of 2006 and the Statutes and hence the Writ Petition be dismissed.
6. The Respondent No.3 in the Writ Petition was proceeded ex parte vide Order dated 16.10.2012 therein. Similarly, Respondents No.5 and 6 were proceeded ex parte vide Order dated 29.06.2012 and Respondent No.7 was proceeded ex parte vide Order dated 03.09.2012. Respondent No.4 had no Counter-Affidavit to file.
7. In Rejoinder, the Appellant mostly reiterated the averments made in the Writ Petition.
8. In Appeal the Appellant assailed the Judgment in the Writ Petition and reiterated the points raised in the Writ Petition. The Respondents No.1 and 2 while supporting the impugned Judgment, reiterated the grounds put forth by them in their respective averments.
9. We have heard the rival contentions of the Appellant and the learned Counsel for the Respondents No.1 and 2 at length and have carefully considered all documents on record and perused the impugned Judgment. The citations made at the Bar have also been carefully considered.
10. In the impugned Judgment, the learned Single Judge first took up the question of violation of the Reservation Policy by the Respondent University and after verbose discussions concluded that reservation to various posts appear to have been complied as prescribed by the UGC and hence there is no WA No. 02 of 2015 10 Rajendra Prasad vs. Sikkim University and Others violation of the Government of India Office Memorandum No.36012/2/96-Estt.(Res), dated 02.07.1997, issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training).
11. Assailing the said finding, the Appellant relying on the decision of the Hon'ble Supreme Court in Dr. Suresh Chandra Verma and Others vs. The Chancellor, Nagpur University and Others1 and R. K. Sabharwal and Others vs. State of Punjab and Others2 postulated that the scheme for reservations was to be applied post wise, i.e. subject wise and not block reservations as done by the Respondents No.1 and 2. It was contended that the learned Single Judge also ignored the fact that no records of the Selection Committee were furnished, no roster was produced and no attempt was made to disclose as to which candidate was appointed against which roster point and why no OBC candidate was appointed. The only fact disclosed to the High Court was the ultimate result of the chosen candidates. Thus, the learned Single Judge was in error in holding that the reservations had been applied as prescribed by the UGC when infact the Office Memorandum of 1997 supra was clearly flouted. That, in the concerned Department, from three vacancies two were assigned to the general category while one went to the Scheduled Tribe sans reasons, which adversely affected the results.
12. The Respondents No.1 and 2 resisting the contentions of the Appellant held that block roster reservation 1 (1990) 4 SCC 55 2 (1995) 2 SCC 745 WA No. 02 of 2015 11 Rajendra Prasad vs. Sikkim University and Others had been adopted in the advertised posts and therefore due adherence given to the reservation policy. Moreover, at the relevant time the Appellant had failed to vent his grievance on this count and instead chose to appear for the interview thereby waiving his rights, apart from which he is estopped from raising such contentions belatedly. In this context, the learned Single Judge while arriving at his finding gave prolix reasons which, in our considered view, was not necessary for the following reasons; it is evident that the advertisement to the vacant posts was issued on 29.04.2010 wherein the details of the roster were reflected. It is clear that the interview was held between 10.01.2012 and 17.02.2012. Thus, the Appellant had more than adequate time to object to the non-adherence of reservation of roster points if any, if he was so aggrieved and was of the opinion that the directions as laid down in Dr. Suresh Chandra Verma (supra) and R. K. Sabharwal (supra) were not being complied with. The bogey of non-compliance of roster reservation policy has been raised by the Appellant only after he emerged unsuccessful in the interview, having failed to do so in the time between the issuance of the advertisement and the interview which he willingly participated in. This ground therefore merits no consideration clearly being an afterthought.
13. The next point taken up for consideration in the assailed Judgment was the allegation of violation of Clause 18(1) and (2) of the Statutes and thereby constitution of the Selection Committee. The learned Single Judge held that the first Executive Council and the first Academic Council vide their WA No. 02 of 2015 12 Rajendra Prasad vs. Sikkim University and Others meetings held on 03.04.2011 and 20.08.2011 respectively, authorised the Vice Chancellor to nominate the required members of the Selection Committee to initiate the interview process. That, the Vice Chancellor had been authorised to exercise his emergency powers to select the required number of experts from the panel of names recommended by the House and constitute the Selection Committee and proceed with the recruitment action. Thus, emergency powers were resorted to by the Respondent No.1 on the authorisation and the resolution of the first Academic Council but not suo moto. The act of the Respondent No.1 was in conformity with Clause 42 of the Statutes.
14. Disagreeing with the finding the Appellant urged that the learned Single Judge also held that the Vice Chancellor had acted under Section 12(3) of the Act of 2006 which relates to emergency powers, when no requirement infact existed for invoking such powers as the Respondent No.1 could have during the existence of the first Academic Council, between 2008 to 2011 sought for the panel of names, which he failed to do, thus raising doubts of mala fides. That, no reserved category nominee existed in the Selection Committee and though the point was argued, the learned Single Judge did not deal with this issue at all. That, choosing expert members for the Selection Committee in several Departments cannot be dealt with by one person as done by the Respondent No.1 as it requires expertise, this has led to several discrepancies as apparent from the copy of the Minutes of the meeting of the Executive Council dated WA No. 02 of 2015 13 Rajendra Prasad vs. Sikkim University and Others 22.02.2012, one example being that in the Department of International Relations/Politics the Respondent No.1 chose a Professor of Geography as the expert while in the Department of Peace and Conflict Studies and Management, two members did not have the requisite specialization as also in the Department of Ethno Botany and Social Medicine Studies, Department of Psychology Studies and Department of Journalism and Mass Communications. That, the authorization of the First Executive Council vide its meeting dated 03.04.2011 is not legal neither is the selection and the exercise of emergency power by the Respondent No.1 illegal. That, it is now well settled by the ratio in University of Delhi vs. Raj Singh and Others3, that, the UGC Regulations apply to all Universities in the country which includes the Respondent University and hence the parameters prescribed therein ought to have been given compliance by the Respondents No.1 and 2. Per contra, the arguments advanced by Respondents No.1 and 2 was that the Respondent No.1 had acted as per directions of the Councils as observed in the impugned Judgment. That, no mala fides emanated in the act of the Respondent No.1 or Respondent No.2.
15. Evidently, the First Executive Council demitted Office on 03.04.2011 and the Academic Council on 24.08.2011. It is not the case of the Appellant that he was unaware of the provisions of the Act of 2006 or the Statutes as he himself has pointed out to the non-adherence of Clause 18(1) and (2) of the Statutes and Section 5.1.1 of the UGC Regulations of 2010. At 3 1994 Supp (3) SCC 516 WA No. 02 of 2015 14 Rajendra Prasad vs. Sikkim University and Others the same time it is noticed that the Appellant has failed to clear the air on which of the two provisions supra he relies on considering that the composition of the Selection Committee under the different provisions are not identical as Clause 18(1) and (2) of the Statutes makes no provision for representative of any specific community. It is also not his case that he was debarred by any authority from raising any objection on any count at any time. Assuming that the constitution of the Selection Committee was incorrect or that the Vice Chancellor had invoked his emergency powers under Clause 12(3) of the Act of 2006 contrary to the norms laid down, it is apposite to notice that the Appellant failed to take steps when he had the time to do so. As can be culled out from the submissions and records before us the interview was conducted on 15.02.2012, the Second Executive Council in its meeting on 22.02.2012 opened the results. Although the Appellant claims that he learnt of his failure on enquiry from the Respondent No.2, he has not ventured to disclose the date of such knowledge. We however find that on 27.02.2012 he filed the representation before the Second Executive Council. He could well have raised the issue of the constitution of Selection Committee during the interim period, when the First Executive Council and Academic Council demitted Office in the year 2011 on the various dates detailed above and the date of interviews held between 10.01.2012 to 17.02.2012, he chose not to do so.
WA No. 02 of 2015 15
Rajendra Prasad vs. Sikkim University and Others
16. On this count, we may beneficially refer to the ratio in Dr. G. Sarana vs. University of Lucknow and Others4 where the Petitioner consequent to his appearance for an interview for the post of Professor having been unsuccessful contended that the experts were biased. The Hon'ble Supreme Court would observe as follows;
"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. ......................"
This observation is indeed apt for the purposes of the matter at hand as well. Similarly, in Madan Lal and Others vs. State of J & K and Others5 the Petitioners assailed the viva voce test and the method that was conducted after emerging unsuccessful in the same. The Hon'ble Supreme Court held as follows;
"9. ............. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. .............."
[emphasis supplied] 4 (1976) 3 SCC 585 5 (1995) 3 SCC 486 WA No. 02 of 2015 16 Rajendra Prasad vs. Sikkim University and Others In this context, useful reference can also be made to the ratio in Manish Kumar Shahi vs. State of Bihar and Others6 wherein the Hon'ble Supreme Court pronounced as under;
"16. ........... Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." [emphasis supplied] Further, in Ramesh Chandra Shah and Others vs. Anil Joshi and Others7 after the Petitioners took part in the process of selection and were unsuccessful in the interview, they challenged the method of recruitment. The Hon'ble Supreme Court was of the considered view as follows;
"24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."
17. Considering the facts as related by the Appellant and on examination of all relevant documents, it needs no reiteration that the Appellant slept over his rights, deigned it fit not to take steps although aware of the alleged illegalities and rose to defend his rights rather belatedly on his failure in the interview. Indeed, it is a case of sour grapes for the Appellant. In our 6 (2010) 12 SCC 576 7 (2013) 11 SCC 309 WA No. 02 of 2015 17 Rajendra Prasad vs. Sikkim University and Others considered opinion there was no requirement for the learned Single Judge to have dwelt on the provisions of the Statutes and justified the actions of the Respondent No.1 or the First Academic and First Executive Council as it is evident that the Appellant neglected to act when required. In other words, he chose not to strike when the iron was hot and by filing the Writ Petition, sought to take remedial measures for his non-action which without a doubt is frowned upon by law.
18. The next point that was considered was whether the action of the Respondent No.1 was in conflict with the Government of India Office Memorandum No.F.3-9/97-Desk(U), dated 11.06.2001 which contained guidelines for invocation of emergency powers of the Vice Chancellor. The learned Single Judge held that an extraordinary situation obtained in the Respondent University, which fell within the exception carved out in the Memorandum supra, hence there was no violation thereof. Repelling the finding, it was vehemently canvassed by the Appellant that the Selection Committee in terms of the provisions of the Statutes ought to have comprised of the persons enumerated therein. Contrary thereto, the Respondent No.1 constituted the Selection Committee by usurping powers endorsed to the Executive Council and the Academic Council in violation of the Office Memorandum supra of the Government of India, thus flouting the mandate of the provisions of the Act of 2006. The Memorandum explicitly prohibits the Vice Chancellor of the Central Universities from executing emergency powers for routine appointments. That, infact there was no emergency as a WA No. 02 of 2015 18 Rajendra Prasad vs. Sikkim University and Others Vice Chancellor could have well asked for the panel of names from the first Academic Council during the years 2008 to 2011 which he clearly avoided. In our considered opinion and as already pointed out supra, the Appellant had adequate time to address this issue prior to the interview. He has not denied knowledge of the exercise of such powers. It was incumbent upon him to take steps immediately which he failed to do. He cannot now be heard to cry foul on his failure in the interview. Besides, this question has already been dealt with supra and needs no further discussions.
19. The learned Single Judge next dealt with the allegation that there was undue delay in holding the interview and observed that this allegation does not appear to be justified in view of the explanation given by the University. The learned Single Judge also considered the point raised by the Appellant that the results were declared neither by publication in the newspaper nor was it put up on the website or Notice Board of the Respondent University and concluded that this does not by itself indicate any massive malpractice in the recruitment process. These findings not having been assailed in Appeal and hence do not require to be addressed.
20. On the issue of additional tests being held in Computer Skills it was concluded that no prejudice at all appears to have been caused and found the objection to be of no consequence. In Appeal, the Appellant assailing this finding contended that the insertion of the Computer Skills Test without WA No. 02 of 2015 19 Rajendra Prasad vs. Sikkim University and Others notice is contrary to the law laid down by the Hon'ble Supreme Court in Rakhi Ray and Others vs. High Court of Delhi and Others8, wherein it was held that once the selection process starts, it is not permissible to change the criteria in the midst of the selection process. That, based on the performance in the said test the mind of the members of the Selection Committee could have been prejudiced. To the contrary, it was contended by the Respondents No.1 and 2 that the Computer Skill Test is a mandatory qualification before participants appear for the interview.
21. It may well be recalled that it is established law that the body conducting the examination cannot change the course midway, or for that matter as the proverb credited to Abraham Lincoln goes "Don't change horses in midstream", nevertheless the Appellant instead of protesting the Computer Skills Test at the relevant time on grounds as raised in the Writ Petition, chose to undergo the test and protested only on his failure on the overall tests conducted, although admittedly he passed the Computer tests. In view of the observations of the Hon'ble Supreme Court in the decisions cited hereinabove, the Appellant cannot turn around to challenge the examinations once he has participated therein and emerged unsuccessful, therefore this objection is of no consequence and falls flat. The finding of the learned Single Judge that the objection was of no consequence is not being differed with.
8 (2010) 2 SCC 637 WA No. 02 of 2015 20 Rajendra Prasad vs. Sikkim University and Others
22. The Appellant's challenge to his termination was next taken up for consideration and the learned Single Judge held that it was to be determined whether or not the procedure by which the services of the Appellant was terminated satisfies the requirement of the provisions of the Act of 2006. Clause 26 of the Statutes and the Sub-Clauses thereunder were discussed and it was concluded that the requirements therein were fulfilled as Show Cause Notice was issued to him. That, the Appellant instead of taking the opportunity to defend himself chose to adopt a confrontationist attitude by replying to the Show Cause questioning the authority of the Respondent No.2. The Appellant in Appeal advanced the argument that contrary to the finding of the learned Single Judge infact it was not established before the Executive Council meeting held on 16.03.2012 as to who had issued the Press Release. The Respondent No.2 without responding to the lapses pointed out in the Appellant's representation dated 27.02.2012, terminated him. That, the learned Single Judge had observed that the Appellant was involved in acts of misconduct and therefore no illegality obtained in his order of termination, when infact, no departmental enquiry was conducted. That, the Appellant and others similarly situated, preferred a complaint before the Sikkim State Human Rights Commission with regard to dismissal on grounds of misconduct and vide its Order dated 27.09.2012 the Commission made a recommendation in favour of the Appellant and others. That, Clause 26(4) of the Statutes provides that no member of the academic staff or other employee shall be WA No. 02 of 2015 21 Rajendra Prasad vs. Sikkim University and Others removed under Sub-Clause (2) or Sub-Clause (3) of Clause 26 unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. That, the Hon'ble Supreme Court has laid down in a catena of decisions that if an employee either permanent or temporary was terminated on grounds of misconduct and if such termination was found illegal then reinstatement with back wages is a normal remedy to meet the ends of justice. These arguments were fortified with the ratio in Parshotam Lal Dhingra vs. Union of India9, Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (D. ED.) and Others 10 and Roop Singh Negi vs. Punjab National Bank and Others11. The Respondents No.1 and 2 contradicted this argument by reiterating the submissions put forth in their averments and submitting in sum and substance that no errors emanated in his dismissal, the Appellant being a contractual employee and not covered by Clause 26 of the Statutes. In our considered opinion the application of the Clause supra is a moot question, the Appellant being a contractual employee and thereby bound by the terms of the contract. However, a Show Cause Notice had indeed been issued to the Appellant informing him that two newspapers from Gangtok being "Sikkim Now" and "Samay Dainik" published the Press Release given by him on 28.02.2012, making false allegations and insinuations against the Respondent University and its authorities. The notice explained that the act was a serious 9 (1958) 1 SCR 828 10 (2013) 10 SCC 324 11 (2009) 2 SCC 570 WA No. 02 of 2015 22 Rajendra Prasad vs. Sikkim University and Others violation of both the basic norms of the University and the Code of Conduct by the Appellant. He was required to show cause as to why action should not be initiated against him for the breach of privilege. He was also required to respond within forty eight hours of the issue of Notice failing which the Respondent University would be free to take any action against him. Instead of responding to the allegations held out against him in the Show Cause Notice and thereby putting up an adequate defence for his actions, he proceeded to question the competence of the Respondent No.2 to issue the Notice thereby waiving his right to take further steps in this context, leading to the grounds of waiver and estoppel as raised by the Respondents No.1 and 2.
23. The learned Single Judge also addressed the consequence of the non-impleadment of the Respondents No.1 and 2 against whom allegations of mala fides were made and concluded that the Writ Petition suffers from the vice of non- joinder of necessary parties including non-joinder of those persons who had been successful in the recruitment process. On this count, the Appellant relied on the ratio of Dr. Suresh Chandra Verma (supra) at Paragraph 16 wherein it was stated that "When, therefore, services of the appellants are to be terminated in view of the change in the position of law and not on the account of demerits and misdemeanor of individual candidates, it is not necessary to hear the individual before their services are terminated. The rule of audi alterem partem does not apply in such cases and therefore there is not breach of the principle of natural justice." How the aforestated observation is WA No. 02 of 2015 23 Rajendra Prasad vs. Sikkim University and Others of any assistance to the Appellant is unfathomable. However, on consideration of the reasoning in the impugned Judgment and the averments and submissions before us, it appears that the Respondents No.5, 6 and 7 were the parties that the Appellant had a grievance against in view of their selection to the coveted posts in the Department of Peace and Conflict Studies and Management which was the Department that the Appellant had also applied to. It is only their appointments which would be affected in the event that reliefs were found justifiable to the Appellant. Therefore, it is evident that an error stares us in the face in the assailed Judgment on this count and we are in disagreement with the conclusion of the learned Single Judge on this aspect.
24. The learned Single Judge further delved into the want of quorum of the Executive Council held on 22.02.2012 and concluded that on this count the Appellant appears to be clearly misconceived. That, only six members were required to fulfil the quorum in the Executive Council Meeting and not seven as can be deduced from Clause 11(3) of the Act of 2006, which provides that twelve members out of total of twenty or two-third of the existing members of the Executive Council shall form a quorum. It was argued by the Appellant that the quorum ought to have comprised of seven members and there is no provision which requires further ratification to include the nominated members of the UGC as members of the Executive Council. The Respondents No.1 and 2 would support the finding of the learned Single Judge. On this aspect, Clause 11 of the Statutes provides that WA No. 02 of 2015 24 Rajendra Prasad vs. Sikkim University and Others seven members of the Executive Council shall form a quorum for a meeting of the Executive Council. However, neither Clause 11 or any other Clause of the Statutes lays down the repercussions or consequences of non-fulfilment of quorum. This can be juxtaposed with Clause 18 of the Statutes which deals with composition of a Selection Committee and provides specifically that unless the provisions as detailed in Clause 18(3)(a) and (b) are complied with the proceedings of the Selection Committee shall not be valid. Thus, in the absence of any specific consequence of non-formation of the quorum, added to the contention being raised only on the failure of the Appellant, no merit arises in the objection of the Appellant which is accordingly discarded.
25. It is also evident from the assailed Judgment that although the Appellant was terminated from his services on 16.03.2012 when his contractual tenure was to end on 31.03.2012, the Appellant was paid for the entire period till 31.03.2012 vide Orders of the Court dated 25.02.2013 in CM Appl. No.18 of 2013 in WP(C) No.44 of 2012. An Experience Certificate was also issued to the Appellant pursuant to an Order dated 16.07.2013 in CM Appl. No.31 of 2013 in WP(C) No.44 of 2012. Both the said Applications were of the year 2013. The Respondent No.2 was also to consider converting the order of termination dated 16.03.2012 as "termination simplicitor" by deleting the last words "on grounds of misconduct." WA No. 02 of 2015 25
Rajendra Prasad vs. Sikkim University and Others
26. It thereby concludes that the Appellant after being unsuccessful in the interview sought to challenge it on the grounds discussed above. It is pertinent to notice here that it is not the Appellant's case that he was a better candidate than the Respondents No.5, 6 and 7 and that therefore his non-selection was unfair and mala fide. His contention pivots around the formation of the Selection Committee the quorum of the Executive Council and the points already discussed hereinabove. It is submitted by the Appellant that he is now appointed elsewhere indicating that no prejudice was caused to him in terms of his future appointment.
27. For the reasons enumerated hereinabove, the Writ Appeal being devoid of merit deserves to be and is accordingly dismissed.
28. No order as to costs.
( Bhaskar Raj Pradhan ) ( Meenakshi Madan Rai )
Judge Judge
02-11-2019 02-11-2019
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