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2020 Supreme(All) 978
IN THE HIGH COURT OF ALLAHABAD
Ajit Kumar, J.
Dr. Ransheel Kumar Upadhyay – Petitioner
Versus
Union Of India And Others – Respondents
WRIT -A No. - 5744 of 2020
Decided On : 12-10-2020
Advocate Appeared:
For the Petitioner: Vikram D. Chauhan, Radha Kant Ojha (Senior Adv)
For the Respondent: A.S.G.I., Amit Kumar Singh, Kuldeep Singh Chauhan, Raj Deo Singh, Rijwan Ali Akhtar
Point of Law: A harmonious construction of Rule 6, 10 & 35 denotes hierarchy of authorities and their respective powers. The procedural aspect clearly indicates that Society can overrule the Board of Governors and so Vice Chancellor can be overruled by the Board of Governors but the powers have to be exercised as per prescribed procedure. The Chairman of the Society has no independent power like Vice Chancellor and so he has to take a decision as per resolution of the Society. Even Vice Chancellor cannot override the decision taken by the Board of Governors collectively even if he happens to be Chairman of the Board of Governors because Chairman of the Board is not vested with any independent power and even if he has certain powers in emergency, then action taken by him is subject to appeal before the Board of governors. Likewise the Chairman of the Society who happens to be the Secretary in the department of Culture, Government of India cannot unilaterally issue a direction to ask the Vice Chancellor to pass order or take decision in compliance thereof
Headnote:
Service Laws – Superannuation – Controversy involved in the present case has arisen on account of the petitioner's lien coming to an end with the parent employer for attaining the age of superannuation and the respondents having appointed the petitioner taking him to be in service with the parent employer, it is alleged, it has been on deputation basis. – Thus, service of the petitioner has been treated to be co terminus with that of his previous employment. –
Finding of the Court:
It is a settled legal position that any order, having adverse civil consequence, must always be preceded with at least a notice much less a show cause notice to an employee and this is quite lacking apparently both in the order of Joint Secretary and the consequential order of Vice Chancellor, more especially in the face of the fact that the term of the petitioner had been extended upto 15.11.2021 by the Board of Governors, the appointing authority of the petitioner – In the counter affidavit of respondent nos. 5 & 6 sworn on their behalf by one Himanshu Pandey, an officiating Registrar of the respondent University, it has only been stated that the impugned orders do not violate the principles of natural justice taking the plea that there is no prejudice caused to the petitioner under reemployment. – From the pleadings as referred to herein above, it is clear that the compliance of principles of natural justice in the present case at the end of respondents, before passing the impugned orders, was quite wanting and in such view of the matter, therefore, Court find merit in the submission advanced by learned Senior Advocate for the petitioner that the impugned orders are clearly unsustainable also for non compliance of principles of natural justice. – It is rightly said that the doctrine of fairness has emerged as a bedrock of administrative decision making process and coupled with natural justice forms due process, the basic ingredient of rule of law. – Whatever is arbitrary is against the rule of law, and arbitrariness means an action opposed to natural law, a concept of justice i.e. impartial dealing (and taking decision after) listening to both sides of dispute (P. Jackson: Natural Justice, 2nd Edn. 1979 115). – The authority when required to act in a procedurally fair manner means it has to conform to the principles of natural justice –
Result:Writ Petition Allowed.
JUDGMENT :
1. Heard Sri Radha Kant Ojha, learned Senior Advocate assisted by Sri Vikram D. Chauhan, learned counsel for the petitioner, Sri Rakesh Pande, learned Senior Advocate assisted by Sri Amit Kumar Singh, learned counsel for respondent nos. 5 & 6 and Sri S.P. Singh Additional Solicitor General of India assisted by Sri Kuldeep Singh Chauhan, learned Central Government Counsel for respondent nos. 1 to 4.
2. The controversy involved in the present case has arisen on account of the petitioner's lien coming to an end with the parent employer for attaining the age of superannuation and the respondents having appointed the petitioner taking him to be in service with the parent employer, it is alleged, it has been on deputation basis. Thus, service of the petitioner has been treated to be co terminus with that of his previous employment.
3. Facts of the case can be drawn in a narrow compass like this that respondent no. 5 namely the Central Institute of Higher Tibetan Studies, Sarnath, Varanasi, U.P., a deemed Central University, issued an advertisement bearing no. 2/2015 inviting applications from the eligible candidates for appointment on the post of Registrar of the University besides other posts.
4. The petitioner was selected and offered appointment vide letter dated 22.10.2016. The petitioner was given the option to join first if he accepted the offer and agreement was to be executed later. Petitioner accepted offer and reported for joining on 16.11.2016 and so he was issued with a formal order of appointment dated 17.11.2016 on deputation basis for a period of five years from the date of joining. Agreement was executed on 15.12.2016. The Banaras Hindu University, the previous employer issued an order permitting deputation for three years w.e.f. 16.11.2016 upto 15.11.2019 and then for another six months i.e. 30.06.2020 when the petitioner would finally attain the age of 60 years, the superannuation admissible to his original post of Assistant Registrar with the University.
5. The Board of Directors, the ultimate appointing authority of Tibetan University discussed the issue of continuance of the appointment of the petitioner as deputation was to end on 30.06.2020, in its meeting held on 29.06.2020 and resolved per majority to continue him till 15.11.2021, the date when five year term will come to end.
6. A consequential order was issued by the Vice Chancellor extending the term of appointment of the petitioner till 15.11.2021. However, the Joint Secretary, Ministry of Culture, Government of India who had put a note of dissent in the meeting of Board of Governors held on 30.06.2020 acting on behalf of the Government of India, issued a letter cum order to the Vice Chancellor, that Government of India in exercise of power vested with it under clause 8 of the Memorandum of Association, overriding the decision of the Board, hereby directs for relieving of the petitioner w.e.f. 30.06.2020. The Vice Chancellor issued a consequential order on 01.07.2020 and hence this petition.
7. The contention advanced by learned Senior Advocate appearing for the petitioner is that under the recruitment rules framed for the purposes of selection and appointment on the post of Registrar, there are two sources of recruitment: one is direct recruitment; and the other is recruitment of the officers already under employment on a deputation basis. He argues that the term of appointment as per the offer letter of appointment is fully governed by the agreement to be reached between employer and the employee i.e. the petitioner and the respondent no. 5 herein this writ petition and so also the order of appointment will be governed. He submits that though the petitioner had come on deputation as it was one of the sources of recruitment but the petitioner had been appointed for a period of five years on a short term contract basis and submits that he canno
