The court ruled that termination without following statutory procedures is illegal, and insufficient experience does not constitute fraud, thus reinstating the employee.

JUDGMENT :

Ananda Sen, J.

This Letters Patent Appeal is directed against the judgment dated 22.12.2021 passed in WP(S) No. 1532 of 2020, whereby the writ petition has been allowed and the order of termination of the writ petitioner has been set aside, directing the respondents-appellants to reinstate the writ petitioner-respondent herein forthwith with all consequential benefits.

2. Counsel for the appellant-Central University of Jharkhand argues that the impugned order is bad as it failed to take into consideration that the petitioner had only nine years nine months experience on the date of advertisement whereas the criteria was of 10 years, thus his appointment itself is void ab initio. As the qualification of ten years experience was an essential qualification and the same was not relaxable, the only consequence of non-fulfillment of the aforesaid qualification, was removal of the petitioner from service. He further contended that on the facts of the case, it was not necessary to hold a regular departmental enquiry as there was lack of basic qualification of the petitioner, thus any departmental proceeding would have been an empty formality. As per him, this aspect has been lost sight of by the learned Single Judge while passing the impugned order. He further contended that admittedly the petitioner's experience was nine years nine months on the date of advertisement, thus the only consequence would be removal from service, which was effected in this case. Alternatively the counsel for the appellants-respondents argued that once the learned Single Judge has held that the procedure as laid down was not followed, then he should not have allowed the entire writ petition directing the respondents to reinstate the petitioner, rather the respondents-appellants should have been directed to initiate a proceeding as per the Statute and take a fresh decision. On these grounds, the impugned order has been challenged.

3. Learned counsel for the writ petitioner submitted that the order of dismissal was passed without initiating any departmental proceeding against the petitioner. He further submitted that admittedly the petitioner was appointed as regular employee and the respondents are seeking to remove the petitioner from his service alleging that his appointment is void ab initio and illegal. He argued that there should have been an appropriate departmental proceeding before passing the order of dismissal. Thus in violation of the norms, the petitioner has been removed. As per him, there cannot be an allegation of fraud as the Board selecting the petitioner knowing fully well about his years of experience, has selected him for the post. He further submitted that admittedly the necessary qualification was the experience qualification of ten years, but in the advertisement, there is a clause reserving discretion of relaxing the experience and age limit at any stage in case of candidates having exceptional merit. He also submitted that when the petitioner was appointed after following due process of law, that too on the recommendation of the Committee, who scrutinized all the documents of the petitioner even if there was short of three months (though denied) it will be presumed that the University has exercised the discretionary power, relaxing the requisite qualification. Once the petitioner has been appointed by the competent authority, after eight and half years of service this issue could not have been wrecked up. Counsel for the writ petitioner further raised the point that the University had levelled several charges against the writ petitioner -respondent including the allegation of mis-management, misappropriation etc and the said charge was issued in contemplation of departmental enquiry and over all there were five charges levelled against him and the imputations have also been served upon the writ petitioner. He also submitted that though the Enquiry Officer was appointed to inquire the charges, no opportunity of personal hearing