1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5283 of 2013 with W.P.(S) No. 5292 of 2013 ------ Ajay Kumar Ram son of late Shrichand Ram resident of house of D.S. Prasad IPS, July Park, Hazaribag, P.O. Hazaribag, P.S. Sadar, Dist Hazaribag. ….. ….. Petitioner (in W.P.(S) no. 5283 of 2013) Dr. Navin Prasad Son of Sri Sidheshwari Prasad, Resident of Cemetery Road, Near St. Columbas College, Hazaribag, P.S. Sadar, Dist Hazaribag. ….. ….. Petitioner (in W.P.(S) no. 5292 of 2013) Versus 1. The State of Jharkhand through the Principal Secretary to the Governor, having its office at Governor’s House, P.O. GPO, P.S. Kanke, District- Ranchi.
2. Chancellor of Universities through Officer on Special Duty (Judicial), having its office at Governor’s House, P.O. GPO, P.S. Kanke, District- Ranchi.
3. Vice Chancellor, Vinobha Bhave University, Hazaribag, P.O. Hazaribag, P.S. Sadar, Dist-Hazaribag.
4. Registrar, Vinobha Bhave University, Hazaribag, P.O. Hazaribag, P.S. Sadar, Dist-Hazaribag.
5. Jharkhand Public Service Commission through its Chairman, P.O. & P.S. Lalpur, Dist-Ranchi. ….. …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioner : M/s Rajiv Ranjan, (Sr. Adv.) & Shresth Gautam, Adv. For the Respondents 1 & 2 : Mr. Vikash Kumar, J.C. to A.A.G. For the Respondent-University : Mrs. Indrani Sen Choudhary, Adv. For the Respondent-J.P.S.C. : Mr. Abhay Prakash, Adv. CAV on:30th March, 2016 Pronounced on 07/09/2016 Per Pramath Patnaik, J.: Since the relief sought for in both the writ petitions more or less identical, with the consent of the respective counsels, both the writ petitions are heard together and are being disposed of by this common order/judgment.
2. In the accompanied writ applications, the petitioners have sought for issuance of writ of certiorari for quashing the notification dated 14.08.2013, pertaining to termination of their services from the posts of Finance Officer and Inspector of Colleges, (Arts & Commerce) respectively from the Vinoba 2 Bhave University and for passing of appropriate orders for all consequential benefits to the petitioners by restoring the petitioners to their posts.
3. Bereft of unnecessary details, the facts as disclosed in the writ applications are that an advertisement was issued by the Jharkhand Public Service Commission (J.P.S.C) for appointment on various posts under the Vinoba Bhave University vide advertisement bearing No.01/2010. As per the advertisement, the petitioners fulfilled all the essential qualifications as required. The petitioners were called for the interview and they were informed that certificates with regard to educational qualifications should be brought for inspection. After due inspection, interview letter dated 30.04.2010 was issued by the JPSC recommending the name of the petitioners for the post of Finance Officer and Inspector of Colleges, (Arts & Commerce). Another letter dated 12.05.2010 was again issued to the petitioners asking them to appear on 15.05.2010 before the Vice Chancellor, Vinoba Bhave University for inspection of documents. Upon the recommendation of the JPSC, the Vice Chancellor sent a letter to the Hon’ble Chancellor asking him to decide with regards to the appointment of the petitioners and the same was replied by the office of the Chancellor, asking the Vice-Chancellor to take a final decision at his level, as evident from Annexre-6 to the writ application. It has been submitted that the letter, which was sent to the Hon’ble Chancellor was under Section 58 of the University Act, for guidelines and appropriate direction, which was returned by the Hon’ble Chancellor stating therein that appropriate order may be passed by the Vice Chancellor to act upon the recommendation of the JPSC. It is pertinent to mention here that under Section 58(3), the order issued by the Chancellor upon recommendation, is final and binding and as such, the Vice-Chancellor came to a definite conclusion after verification of records in accordance with law, and decided to appoint the petitioners as they were fulfilling all the required qualification as per law. It has been further submitted that after due verification the name of the petitioners were sent for approval before the Hon’ble Chancellor and in furtherance thereto a notification dated 02.12.2010 vide Annexure-8 was issued, wherein it was informed that the Hon’ble Chancellor had taken a decision for appointment of the petitioners and the same was ordered vide letter dated 27.10.2010 and, as such, the petitioners were appointed on the posts of Finance Officer and Inspector of Colleges (Arts & Commerce) respectively in Vinoba Bhave 3 University, which is a tenure post for the period of four years. In pursuance to the appointment orders, the petitioners submitted their joining on 06.12.2010, which was duly accepted by the competent authority as evident from Annexure-9 to the writ petition. The Officer on Special Duty (Judicial) in the Governor’s Secretariat stated that recommendation to the post of Finance Officer and Inspector of Colleges, (Arts & Commerce), Vinobha Bhave University has been received, therefore, ad hoc continuance was not proper and accordingly, the University was directed to act strictly as per rules. Upon receiving letter, the J.P.S.C vide letter dated 07.10.2010 replied that after having found the petitioners possessing requisite qualification recommendation has been made for their appointment, as evident from Annexures-11 and 10 to the aforesaid writ petition. But, to the utter surprise and consternation, after lapse of around 1 and 1/2 years, letter dated 29.11.2012 was issued by the office of the Chancellor-cum- Governor asking for an explanation as to what has happened in furtherance to letter dated 27.10.2010 issued by the Chancellor, as per Annexures-12 and 11 to the aforesaid writ applications. It has further been stated that the same was duly replied vide letter dated 12.01.2013 informing therein that after following due procedure of law, petitioners have been selected and a notification for appointment has been issued as per Annexure-13 and 12 to the aforesaid writ applications. Thereafter, a show cause was issued to the Vice Chancellor by the Principal Secretary to the Chancellor, asking him to show cause as to under what circumstances the appointment of the petitioners have been made, as per Annexures-14 and 13 to the aforesaid writ applications. In pursuance to the said show cause, a detailed reply was given vide letter dated 14.03.2013 stating therein that after following the due process of law, appointment of the petitioners have been made. But, without considering the same, show cause was issued to the petitioners vide letter dated 09.07.2013 stating therein that the petitioners do not hold the requisite qualification and as such, why not the appointment of the petitioners to the post of Finance Officer and Inspector of Colleges, (Arts & Commerce) be cancelled. It is pertinent to mention that the show cause so issued was a perfunctory show cause, without providing the essential detail as to which qualifications petitioners’ lach. The same was replied in detail stating therein that the petitioners hold all the requisite qualifications and after following due procedure of law they have been appointed, as per Annexure-17 and 16 4 to the aforesaid writ applications. The services of the petitioners have been annulled without even considering the reply of the petitioners, which was a mere formality and a notification thereof was issued by the Registrar, Vinoba Bhave University informing therein that the Hon’ble Chancellor have been pleased to review his decision of appointment of the petitioners and as such the appointment of the petitioners stand terminated. Being aggrieved by and dissatisfied with the impugned orders dated 14.08.2013 vide Annexures-18 and 17 of the aforesaid writ applications, the petitioners having no other efficacious and alternative remedy being constrained, have approach this Court under Article 226 of the Constitution of India for redressal of their grievances.
4. Heard Mr. Rajiv Ranjan, learned counsel for the petitioners and Mr. Vikash Kumar, J.C. to A.A.G., appearing for the State, Mrs. Indrani Sen Choudhary, learned counsel for the University as well as Mr. Abhay Prakash appearing for the J.P.S.C.
5. Learned senior counsel appearing for the petitioners has strenuously urged that the actions of the respondent authorities is violative of Article 14 and 16 of the Constitution of India and the same is perfect colourable exercise of power. Learned senior counsel for the petitioner further submits that the show cause issued to the petitioners were only formality which was just for the sake of doing the same, as not proper detail was provided on asking an explanation, as to which requisite qualification the petitioners did not fulfill. Learned senior counsel for the petitioners further submits that once a decision has been taken by the Hon’ble Chancellor, there is no provision for review of the same under the University Act and, the Act does not clothe the Chancellor with the power to review his own orders. Learned senior counsel for the petitioner further submits that the show cause was issued to the petitioners providing that the same is being issued under Section 9 (4) of the University Act and as such in consonance with the aforesaid recommendation of the JPSC, recommending the appointment of the petitioners, cannot be reviewed by the Hon’ble Chancellor and furthermore, a final order under Section 58(3) cannot be reviewed under Section 9 (4) of the said Act. It is further submitted that neither the recommendation nor the final order issued by the Hon’ble Chancellor recommending appointment of the petitioners, can be reviewed. Learned 5 senior counsel for the petitioners further submits that decision has been taken after proper scrutiny and the appointments have been made as per procedure under law, which cannot be reopened at this stage, purportedly on the mistaken appreciation of the facts.
6. Per contra, a counter affidavit has been filed by the respondent nos. 1 and 2 controverting the averments made in the writ application. In the counter affidavit, it has been mentioned that in pursuance to the advertisement, Jharkhand Public Service Commission after conducting the necessary interview, provisionally recommended the names of six different persons for the six different posts including the names of the petitioners on the posts of Finance Officer and Inspector of Colleges (Arts & Commerce) and in the said recommendation of the JPSC, Ranchi it had been requested to the Registrar, VBU, Hazaribagh to get the original documents enquired into before making any appointment. Para-3 of the said recommendation further mentions that if in course of enquiry above referred, any recommendee/applicant is found ineligible, the appointment cannot be done and the recommendations shall be treated to be automatically cancelled. The original application along with all enclosures has been attached with the said recommendation letter for undertaking the above referred enquiry/verification exercised by the University as per letter dated 30.04.2010 (Annnexure-B to the counter affidavit). The V.B.U, Hazaribagh constituted a Five Member Committee to enquire into the original certificates submitted by the recommended candidates (including the petitioners), which after undertaking the exercise submitted a report on 25.05.2010 as per Annexure-C to the counter affidavit. In the said report, after analyzing all the documents submitted by petitioners, the Committee has come to the conclusion that Shri Ajay Kumar Ram, whose name has been recommended for appointment on the post of Finance Officer of the University did not have the required experience of 15 years as Accounts Officer, which was pre-requisite qualification as per the J.P.S.C advertisement itself. The Committee has further opined that his pay scale is not in accordance with the scale of Deputy Registrar. The Registrar, V.B.U, Hazaribagh, vide letter dated 16.06.2010 addressed to the Principal Secretary to Hon’ble Governor-cum-Chancellor of Universities of Jharkhand, has sought for guidelines with regard to the step which may be taken for appointment of Shri Ajay Kumar Ram on the post of Finance 6 Officer and Dr. Navin Prasad as Inspector of Colleges (Arts and Commerce), due to certain anomalies and contradictions as their pre-requisite qualification to hold those posts. The OSD-cum-Controller of Examination, J.P.S.C in a letter addressed to Principal Secretary to Hon’ble Governor- cum-Chancellor dated 07.10.2010 has reiterated the stand of the Commission that if there is any contradiction in the qualification of two of the candidates namely, Shri Ajay Kumar Ram and Dr. Navin Prasad then the University is free to take final decision as evident from Annexure-D and D/1 to the counter affidavit. The Principal Secretary to the Hon’ble Governor- cum-Chancellor vide letter dated 27.10.2010 to Registrar, VBU, Hazaribagh enclosing the letter dated 07.10.2010 of JPSC has communicated that the University authority are required to decide the matter on the basis of available facts and circumstances at its own level, in accordance with the provisions laid down in Jharkhand State Universities Act/Regulations/Statutes as per Annexure-E to the counter affidavit. It has been submitted that the letter dated 27.10.2010, which simply communicated to the Registrar, V.B.U, Hazaribagh has been grossly and deliberately misconstrued and misrepresented in the University notification contained in memo dated 02.12.2010, wherein in the notification appointing the petitioners, it has been wrongly mentioned that the said notification is being issued in compliance of the order of the Hon’ble Chancellor, as per Annexure-F to the Counter Affidavit. It has further been submitted that Dr. Manju Kumari has filed a public petition to Hon’ble Governor-cum- Chancellor of the Universities of Jharkhand with regard to illegal appointment of Dr. Navin Prasad as Inspector of Colleges (Arts & Commerce) by Dr. R. N. Bhagat, Vice Chancellor, V.B.U, Hazaribagh. It has further been submitted that the letter dated 27.10.2010 which has enclosed the J.P.S.C letter dated 07.10.2010 has been selectively misused along with letter dated 03.06.2010 said to have been received on 19.08.2010, to create a justification for having appointed the petitioners on the basis of alleged direction issued by the Governor’s Secretariat, though no such direction was ever issued in this regard and the letter dated 12.01.2013 has been annexed as Annexure-H to the counter affidavit. The Principal Secretary to the Hon’ble Governor-cum-Chancellor of Universities of Jharkhand vide letter dated 27.02.2013 issued a show cause to Vice Chancellor, VBU, Hazaribagh regarding appointment of the petitioners 7 under Section 9 (4) of Jharkhand State Universities Act as per the direction of Hon’ble Chancellor. The Vice Chancellor, VBU vide letter dated 14.03.2013 submitted an elaborate reply in response to the said letter, as per Annexure-I to the counter affidavit. The petitioners were also served with a specific show cause as to why their appointment to the posts of Finance Officer and Inspector of Colleges (Arts and Commerce) be not annulled for lack of requisite qualification for the aforesaid posts at the time of appointment vide letter dated 09.07.2013 of the Principal Secretary to Hon’ble Governor as per Annexure-J to the counter affidavit. In response to the said show cause notice, the petitioners submitted their show cause reply and the Hon’ble Chancellor of the Universities of Jharkhand, in exercise of power under Section 9 (4) of Jharkhand State Universities Act after examining and considering show cause replies of the petitioners, has come to the conclusion that they are not holding the requisite qualifications for selection of Finance Officer and Inspector of Colleges (Arts and Commerce) and, therefore, have been pleased to annul the notification dated 02.12.2010 appointing the petitioners. The Vice Chancellor, V.B.U, Hazaribagh was further directed to issue fresh notification as per the direction of the Hon’ble Chancellor of Universities of Jharkhand and accordingly, vide notification dated 14.08.2013 issued by the Registrar, V.B.U, Hazaribagh, the petitioners’ services were terminated with immediate effect as per Annexure-K and K/1 of the counter affidavit. It is further submitted that subsequently vide letter dated 23.10.2013, the Principal Secretary to the Governor has even written to Vice-Chancellor, V.B.U, Hazaribagh to take appropriate legal action against the petitioners for having deliberately suppressed material information vide Annexure-L to the counter affidavit.
7. A counter affidavit has also been filed on behalf of respondent nos.3 and 4-University, repelling the contentions made in the writ applications. In the counter affidavit, it has been submitted that the claim of eligibility and due qualifications of the petitioners have been found to be wrong on the basis of the report of five man committee constituted by the University, questioning their claim of eligibility as evident from Annexure-A & B to the said counter affidavit. The Registrar, Vinoba Bhave University vide letter dated 16.06.2010 (Annexure-C to the counter affidavit) to the Principal Secretary, Governor’s Secretariat stating therein that there is discrepancy in the eligibility condition of the petitioners and asked for direction from His 8 Excellency under Section 58(3) of the Jharkhand State University Act. In response, His Excellency’s office directed that the University Authorities are required to decide the matter on the basis of available facts and circumstances at its own level in accordance with the provisions laid down in the Jharkhand State University Act/Statutes vide letter dated 27.10.2010 (Annexure-6 to the writ applications) and the then Vice Chancellor did not find any discrepancy or irregularity in the qualification of the petitioners and appointed both the officers on the post of Finance Officer and Inspector of Colleges (Arts and Commerce). He has also directed the office that the action taken be informed to His Excellency as directed in letter dated 03.06.2010. Consequently, the notification dated 02.12.2010 was issued by the then Registrar, VBU, appointing both the petitioners. It is worth mentioning that show cause reply was submitted personally by Vice Chancellor, VBU to His Excellency, the Governor cum Chancellor of the Universities of Jharkhand and the petitioners cannot comment on the same. It is worth stating that show cause reply was submitted personally by V.C., VBU to His Excellency, the Governor cum Chancellor of the Universities of Jharkhand and in the show cause reply the V.C (respondent no.3) explained the circumstances under which he ordered for the appointment of the petitioner, while at the same time he was ready to abide by any direction passed by Hon’ble Chancellor in that regard. The letter issued by the Governor’s Secretariat, Jharkhand to the V.C., VBU dated 12.08.2013 unambiguously shows that His Excellency, the Governor-cum-Chancellor of the Universities of Jharkhand has taken all pains to follow the rule of law, and only after exploring all valid legal processes, the V.C., VBU was directed to annul the notification of appointment of the petitioners by the University as per Annexure-D to the counter affidavit. The relevant provisions of the Jharkhand and Bihar State Universities Act, 1976 have been quoted in the counter affidavit as Annexure-E to justify the impugned action of His Excellency, the Governor- cum-Chancellor, pertaining to annulment of notification of appointment of the petitioners by the University.
8. A counter affidavit has also been filed on behalf of respondent nos.5- Jharkhand Public Service Commission, wherein it has been submitted that the Jharkhand Public Service Commission (hereinafter referred to as JPSC) is entrusted to discharge its function under Section 57 of the Jharkhand State 9 University (Amendment) Act 2002. Consequently, pursuant to the requisition of the University concerned Jharkhand Public Service Commission undertook the selection procedure and published the advertisement for two posts of Finance Officer, one for Vinoba Bhave University, Hazaribagh and another for Sidho Kanhu Murmu University, Dumka. On receipt of the application for different posts including the post of Finance Officer and Inspector of Colleges, (Arts and Commerce), JPSC conducted interview of the candidates and three candidates were selected in the merit list. On receipt of their preference/option, Ajay Kumar Ram was recommended for Vinoba Bhave University, who was senior most in the merit list and the Jharkhand Public Service Commission sent recommendation of Ajay Kumar Ram for the post of Finance Officer to Vinoba Bhave University, Hazaribagh and Dr. Navin Prasad for the post of Inspector of Colleges (Arts and Commerce). The Jharkhand Public Service Commission while forwarding the original application of all recommended candidates as stated above has specially requested that appointment should be made after verification of original record and it was also clarified that in case any candidate is found ineligible in course of verification, he should not be appointed and his recommendation should be treated as cancelled automatically. Thereafter, the petitioners were appointed by Registrar, Vinoba Bhave University, Hazaribagh on the post of Finance Officer and Inspector of Colleges (Arts and Commerce) vide notification dated 02.12.2010 and subsequently, the appointment of the candidates in the Universities, any departmental or disciplinary action would be guided as per regulation as applicable to the employer and employee. The provision of consultation with JPSC as provided in Article 320 (c) (d) and (e) of Constitution of India need not be necessary as university employee do not belong to the category of Government servants.
9. Rejoinder to the counter affidavit has been filed by the petitioners, wherein it has been submitted that five person committee was constituted prior to appointment of the petitioners and after receiving the information under Right to Information Act, 2005, the petitioners filed a detailed reply before the Hon’ble Chancellor, Vinoba Bhave University vide letter dated 18.11.2010 as per Annexure-2 to the rejoinder. But, the impugned orders have been passed behind the back of the petitioners without providing 10 opportunity of hearing and the same has been disposed of by a complete non-speaking order.
10. After bestowing my anxious considerations to the rivalized submissions and on perusal of the relevant records, I am of the considered view that the petitioners have been able to make out a case for interference, due to the following facts and reasons: (I) In pursuance to Advertisement No.01/2010 for appointment of Finance Office and Inspector of Colleges (Arts and Commerce) by the Jharkhand Public Service Commission, Ranchi, the petitioners having requisite qualifications applied for the said posts and their applications were scrutinized by the JPSC and thereafter, the petitioners were interviewed by the Selection Committee constituted by the JPSC and only thereafter, the JPSC recommended the names of petitioners for the aforesaid posts. In pursuance to their appointment, they continued to perform their responsibilities, but to the utter surprise, a show cause under Section 9 (4) of University Act has been issued to them after completion of more than half period of tenure. Moreover, the show cause notice does not indicate regarding the specific lack of requisite qualification, the impugned orders contained in Annexures-18 and 17 of the aforesaid writ applications suffers from vice. The Act does not clothe the Chancellor with the power to review the impugned orders under Section 9 (4) of the Act. It is well established that unless the statute gives the authority a power to review its own order, the same cannot be reviewed. The view of this Court, gets fortified by the judgment of the Patna High Court reported in 1981 PLJR27(Smt. Saraswati Mishra vs. The Chancellor, Universities of Bihar, Patna & Ors.). (II) In the case in hand, although the show cause notices were issued under Section 9 (4) of the Jharkhand State Universities Act, 2000 but the grounds taken by the petitioners in the show cause reply have not been considered while passing the impugned orders of annulment of the notification of appointment, therefore, the impugned orders are not legally sustainable, because of lack of reasons and being cryptic. In this respect, it would be profitable to refer to the judgment of the Hon’ble Apex Court reported in (2013) 6 SCC530(Chairman, Life Insurance Corporation of India and Ors. vs. A Masilamani), wherein at paragraph 19, it has been held as under:
“19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. …..” (III) On perusal of the show cause notice for cancellation of the appointments, it is quite apparent that the show cause notice only states in a vague general term that the petitioners did not hold requisite qualifications. The show cause notice ought to have indicated the precise scope of notice, also to indicate that the points on which the petitioners were expected to give reply. The show cause notice did not give the petitioners any opportunity to defend themselves against the vague allegations, therefore, the petitioners did not get any chance at all to show that their appointments were validly made after verification of the qualifications. On that score, the impugned order of annulment of notifications as a sequel to the show cause notice is not legally sustainable. Due to efflux of tenure, which has come to an end, no direction can be issued for reinstatement of the petitioners. Only the petitioners will be entitled to the service benefits of the reminder of the tenure.
11. In view of the facts stated hereinabove and as a logical sequitur to the aforesaid facts and reasoning, the impugned orders of annulment of notifications vide Annexures-18 and 17 of the aforesaid writ applications, are hereby quashed and set aside and the respondents are directed to extend the service benefits to the petitioners for remaining period of their service tenures within a period of 12 weeks from the date of receipt/communication of a copy of the order.
12. With the aforesaid direction, both the writ applications stand allowed. (Pramath Patnaik, J.) Saket/-