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SCA/832520/2008 19/ 19 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION NO. 8325 OF 2008
======================================
DR.
LOKENDRA MALIK - Petitioner(s)
Versus
GUJARAT
NATIONAL LAW UNIVERSITY & ORS. - Respondent(s)
======================================Appearance
:
Mr. Dipak R. Dave for
Petitioner(s).
Ms. Dharmishta Rawal for Respondent(s) : 1.
Mr.
Niraj Soni, AGP for the respondent-State.
None
for Respondent(s) : 2 - 14.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 12/08/2008
ORAL
ORDER
The
present petition has been filed by the petitioner under Article 226
of the Constitution of India for the prayers, inter alia, to
quash and set aside the decisions dated 30th May, 2008 of
respondent No.1 and 16th May, 2008 of the Executive
Council of respondent No.1. It is also prayed to direct respondent
No.1 to continue the petitioner in service as Assistant Professor of
Law with continuity of service and all consequential benefits, etc.
It is further prayed to hold and declare that respondent Nos.3 to 14
are not possessing necessary qualification as per the Rules of
University Grants Commission and since their appointments are
illegal, they have no authority to continue on the post.
2. The
facts of the case briefly summarised are that the petitioner had been
serving as an Assistant Professor of Law, who has been discontinued
from the Gujarat National Law University ( GNLU for short) by
the impugned order dated 30th May, 2008 passed by
respondent No.1, which has been challenged herein on the ground that
it is arbitrary and illegal. The petitioner has also challenged the
appointments of respondent Nos.3 to 14 as absolutely illegal and in
flagrant violation of the University Grants Commission Act, 1956
( UGC Act for short) and the Rules and Regulations under the
said Act. The petitioner had been appointed as an Assistant Professor
of Law by GNLU, which is established under the Gujarat National Law
University Act, 2003. The petitioner, who had applied for the post of
Assistant Professor of Law pursuant to the advertisement at
Annexure-B, was called for the interview and he was interviewed on
20th January, 2008 by the Selection Committee of
respondent No.1. The petitioner was thereafter offered the
appointment letter dated 27th January, 2008 (Annexure-C),
appointing him to the post of Assistant Professor of Law. Thereafter,
he joined the services with respondent No.1 with effect from 3rd
February, 2008.
3. It
is the case of the petitioner that as he was popular amongst the
students which the respondents did not like and since they did not
want the petitioner to overshadow them in teaching, respondent No.6,
who was also appointed along with the petitioner, as an Assistant
Professor of Law, started causing harassment to the petitioner. It is
also averred that though he had informed to respondent No.3 about the
same, no action was taken. It is also contended that he came to know
that respondent No.6 is not qualified and eligible for the post of
Assistant Professor of Law as per the UGC norms. He, therefore,
applied for the information under the Right to Information Act, 2005
on 18th April, 2008, which annoyed respondent No.6.
Therefore, at the instance of respondent No.6, as he instigated
certain students to file false complaints against the petitioner, few
girl students filed a complaint against the petitioner on the last
date of examination, i.e. on 2nd May, 2008. It is averred
that the Committee constituted to investigate the said complaint
found the allegations vague and false as per the information
available to the petitioner. The petitioner was called and explained
everything before the Committee and thereafter, the complaint has
been filed. It is averred that respondent No.3 was also not holding
the qualification and eligibility for the post of Associate Professor
of Law at the time when he applied for the post and therefore, the
petitioner had sought for information under the Right to Information
Act, 2005. Thereafter, the petitioner was provided with the details
on 10th June, 2008 (Annexure-E). It is, therefore,
contended that neither respondent No.3 nor respondent No.6 were
holding necessary eligibility and qualification for being appointed
to the post and therefore, they joined the hands together and
harassed the petitioner and they tried to pressurise the petitioner
for giving the resignation from the services. However, as the
petitioner started fighting calling for the further information under
the RTI Act, he has been victimised. It is also contended that as
regards the qualification of respondent No.6, he has also made
representation to the Honourable Visitor, who is the Honourable the
Chief Justice of India, on 12th May, 2008, which is at
Annexure-G. However, it is contended that instead of taking the
action against respondent No.6, the petitioner has been victimised.
It has been specifically contended that the Executive Council of
respondent No.1 in its meeting dated 16th May, 2008
decided to discontinue the services of the petitioner with immediate
effect without showing any reason, which is at Annexure-H. It is,
therefore, contended that the petitioner was not even heard before
passing such resolution and no reasons were given for taking such
decision by the Executive Council. It has been contended that the
petitioner has been victimised at the instance of respondent Nos.3
and 6 and the petitioner, who is having good academic record, has
been discriminated and the Executive Council of respondent No.1 has
adopted pick and choose policy and the decision has been taken at the
instance of respondent Nos.3 and 6. Further, the averments are also
made in paragraph 2.16 that representations made by him to the
Honourable the Chief Justice of India and Honourable Mr. Justice C.
K. Thakkar, who is a Member of General Council, GNLU, have not been
considered and the same are produced at Annexures I and J. It is also
contended that the Executive Council has itself taken the arbitrary
decision at the instance of respondent Nos.3 and 6 and has given
premium to the ineligible persons. Thus, the present petition has
been filed challenging the decision to discontinue the petitioner as
well as to question the appointments of respondent Nos.3 to 14 on
various grounds stated in the petition as well as submitted in detail
at the time of hearing of the petition.
4. Mr.
Dipak Dave, learned Advocate for the petitioner, has submitted
referring to the pleadings that the petitioner has been victimised at
the hands of respondent Nos.3 and 6. He has referred to the petition
to point out that the respondents, who have been appointed, are not
possessing necessary qualification and in spite of that, they have
been continued whereas the petitioner, who is eligible and qualified,
has been discontinued at the instance of respondent Nos.3 and 6. It
was strenuously submitted that respondent Nos.3 and 6 have joined the
hands and at their instance, respondent No.1 has taken the decision
to discontinue the petitioner. He also submitted that at the instance
of respondent No.6, respondent No.3 has, during the meeting of the
Executive Council, persuaded the Executive Council to take such a
decision. It was submitted that what has transpired during the
meeting, he would not have known, but, he apprehends that at the
instance of respondent Nos.3 to 6, such a decision has been taken and
he is victimised. Therefore, it was strenuously submitted that such a
decision is arbitrary and it is taken by the Executive Council at the
instance of respondent No.3, who is the Ex-Officio Member of the
Executive Council. It has also been contended that before passing the
resolution of the Executive Council, no opportunity has been given to
the petitioner and therefore, it is arbitrary, illegal and violative
of Article 14 of the Constitution of India. In support of this
submission, the learned Advocate has referred to and relied upon the
judgement of the Honourable Apex Court in the case of State of
Orissa vs. Dr. (Miss) Binapani Devi, reported in AIR
1967 SC 1269 and emphasised that even the executive orders
are required to be supported by reasons, which have not been given in
the impugned order. He also referred to a judgement of the Honourable
Apex Court in the case of National Textile Workers’ Union &
Ors. vs. P. R. Ramakrishnan & Ors., reported in (1983)
1 SCC 228 and submitted that if the order has any civil
consequence, then, the reasons have to be given and also an
opportunity has to be given. He emphasised and submitted that in the
facts of the present case, no reasons are given nor any opportunity
has been given though the services of the petitioner are discontinued
or terminated and therefore, the impugned decision is arbitrary and
violative of Article 14.
4.1 As
the Court had raised the query about locus standi of the
petitioner to question the appointments of respondents, referring to
that aspect, he submitted that the respondent No.1-University is
established under the Gujarat National Law University Act, 2003 with
the object of having excellence in the field of knowledge of law, law
reforms and therefore, the students and research scholars are trained
for developing such skills, and since the appointments of respondent
Nos.3 to 14 are given in utter disregard to the norms established by
the UGC Act, he has challenged their appointments. Mr. Dave has
submitted that what avowed the objects with which the University has
been established and had been started and functioning with progress,
but, the merit is compromised and facts are suppressed by respondent
No.3 before the Executive Council, which has resulted in the impugned
order of discontinuation of the petitioner. He emphasised that the
Executive Council may not have been presented with all the facts and
all the facts may not have been brought to the notice of the
Executive Council. Therefore, he has challenged the appointments of
the respondents. In support of this submission, he has referred to
and relied upon the judgement of the Honourable Apex Court in the
case of Dr. (Mrs.) Meera Massey vs. Dr. S. R. Mehrotra &
Ors., reported in AIR 1998 SC 1153. He also
submitted that the rules and regulations of the University Grants
Commission are required to be followed and if that is taken into
consideration, none of the respondents is eligible and qualified.
Referring to the eligibility criteria, Mr. Dave also referred to the
judgement of the Karnataka High Court at Bangalore in the case of
Sachidananda K. & Ors. Vs. Bangalore University & Ors.,
in Writ Petition No.19399 of 2005 and the observations made therein,
for which he also referred to the provisions of UGC Act. He
emphasised that in that case also, the appointment of the respondents
therein in the Faculty of Law itself was questioned on the ground of
National Eligibility Test for the Lecturership and also other
qualifications as per the UGC Act, which prescribes the minimum
qualification for the appointment to the post. He also pointedly
referred to the excerpts from the University Grants Commission
(Minimum Qualification required for the Appointment and Career
Advancement of Teachers in University and Institutions affiliated to
it) Regulations, 2000, which has been quoted and referred to in that
judgement for supporting his submissions. He also referred and relied
upon a judgement of the High Court of Rajasthan in the case of
Krishna C. Mathur vs. The University of Jodhpur and Ors.
in S. B. Civil Writ Petition No.160 of 1978.
5. Ms.
Dharmistha Rawal, learned Advocate appearing for the respondent-GNLU,
has submitted that the Court may consider in brief the submissions or
points as formulated hereunder:
(i)
The petition deserves to be dismissed on the ground of suppressio
veri and suggestio falsi.
(ii) Disputed
questions of facts.
(iii) The
petition is filed to settle the personal score.
She
also pointedly referred to the averments made in the petition to
highlight some of the allegations made qua respondent Nos.3
and 6 as well as respondent No.1 and also the Executive Council as
well. She also referred to the letter of appointment dated 27th
January, 2008 (Annexure-C) and submitted that as reflected in this
letter, the post is offered to the petitioner on probation initially
for such period as may be determined by the Executive Council. She
emphasised that the appointment of the petitioner itself was subject
to the terms and conditions, which include certain specific clauses.
Clause-5 of the appointment letter reads as under:
5. Your
employment with the University during probation may be terminated
without assigning any reasons at one month’s notice or salary in
lieu thereof and you may also have a corresponding right to terminate
it at one month’s notice or on payment of salary in lieu thereof.
After probation, the termination period will be of three months.
She
also submitted that as per the GNLU Act, the appointment is by the
Executive Council and the powers are delegated to respondent No.1 by
the Executive Council. For that purpose, she referred to the
communication dated 17th July, 2008, which is the
information provided under the Right to Information Act, as requested
by the petitioner, and more particularly, question No.2 has a
reference to the very aspect regarding the power and authority of the
Director In-charge for the appointment, which reads as under:
Q.2 The
power and authority of the Director-In-Charge for the appointment of
teaching staff and whether the Director-In-Charge is having power to
issue the appointment orders without the approval of the Executive
Council? Kindly furnish the details.
Ans.2
The Director has the power and the authority for making the
appointments of the teaching staff as per:
The
Gujarat National Law University Act, 2003 under section 22, the
power is delegated.
The
Resolutions of the Statutory Bodies at their respective meetings.
The
appointments so made are on the recommendations of the Selection
Committee and are subject to the approval of the Executive Council.
It
is also clarified that the Executive Council guides the recruitment
of the faculty. Therefore, Ms. Rawal submitted that the appointment
is subject to the approval of the Executive Council as it has the
powers and authority to make the appointment, which powers are
delegated to respondent No.1 subject to the approval by the Executive
Council on completing the process of the recruitment. Therefore, she
submitted that the submissions that he has been victimised at the
instance of respondent Nos.3 and 6 are misconceived as it is the
decision taken by the Executive Council and not any individual or
respondent Nos.3 and 6. She also referred to constitution of the
Executive Council which consists of the Honourable Visitor –
Honourable the Chief Justice of India and also the Honourable Judges
of the Supreme Court and High Court and other dignitaries. She also
referred to the representation made by the petitioner dated 3rd
June, 2008 (Annexure-I) and pointedly drawn the attention as to the
language used and the manner in which the allegations are made. She
emphasised the following paragraph:
My
representation to the Visitor – Honourable the Chief Justice of India
dated 12.5.2008 was retaliated by the decision stated to have been
taken on 16.5.2008 by not approving my appointment, without
disclosing which parameter, I am not meeting with.
Thereafter
also, there are other allegations that my representation is
against the decision of the Executive Council in not approving my
appointment and circumstances leading to such decision .
5.1 Ms.
Rawal also referred to and relied upon a judgement of the Honourable
Apex Court in the case of Sadananda Halo & Ors. vs. Momtaz
Ali Sheikh & Ors., reported in (2008) 4 SCC 619,
wherein the earlier judgement in the case of Union of India vs.
Bikas Kuanar, reported in (2006) 8 SCC 192 was
relied upon and
in the said judgement it was observed that the
Selection Committee recommends selection of a person, the same cannot
be presumed to have been done in a mechanical manner in absence of
any allegation of favouritism or bias. A presumption arises in regard
to the correctness of the official act. The party who makes any
allegation of bias or favouritism is required to prove the same. In
the instant case, no such allegation was made. The selection process
was not found to be vitiated. No illegality was brought to the
Court’s notice. Therefore, Ms. Rawal submitted that as it was an
offer for the appointment on contract basis subject to the approval
of the Executive Council, the petitioner cannot make a grievance if
he is terminated simplicitor. It was submitted that there is no
question of giving any opportunity of hearing. She also referred to
the pleadings and submitted that admittedly, there were some
complaints made by the girl students about the conduct of the
petitioner, for which the Committee was formed. However, to avoid any
further consequences, the Executive Council, on the basis of the
material, has decided to discontinue the services by passing the
impugned resolution, which cannot be said to be arbitrary. She,
therefore, submitted that the submissions made by the petitioner are
misconceived. She also submitted that the petitioner has no locus
standi to question the appointment of others and in support of
this submission, she has, referring to and relying upon the judgement
of the Honourable Apex Court in the case of Sadananda Halo
(supra), pointed out the observations in paragraph 59 that it
is also a settled position that the unsuccessful candidates cannot
turn back and assail the selection process. There are of course
exceptions carved out by this Court to this general rule.
Therefore, referring to these observations and also similar
observations made in the judgement in the case of Trivedi
Himanshu Ghanshyambhai vs. Ahmedabad Municipal Corporation &
Ors., reported in (2007) 8 SCC 644, wherein
also, observations have been made with regard to locus standi
to challenge the appointments of others on the ground that they did
not have requisite experience or qualification. Similarly, she has
also referred and relied upon the judgement of the Honourable Apex
Court in the case of B. Srinivasa Reddy vs. Karnataka Urban
Water Supply & Drainage Board Employees’ Assn. & Ors.,
reported in (2006) 11 SCC 731 and submitted that one is
required to have reference to the nature of the appointment in the
organisation and therefore, the present petition may be dismissed.
6. In
view of the rival submissions, it is required to be considered that
whether the impugned decision of discontinuation of the services of
the petitioner by the Executive Council by the impugned resolution
dated 16th May, 2008 can be said to be arbitrary and
violative of Article 14 of the Constitution of India. For
appreciating the submissions, few admitted facts are required to be
considered. It is not in dispute that the Executive Council is having
absolute authority or power to make the appointments and for the
purpose of recruitment process, the powers are delegated to
respondent No.1, but, the appointments shall be subject to the
approval of the Executive Council. The petitioner, who had applied,
pursuant to the advertisement, was selected and offered an
appointment as an Assistant Professor of law as per the appointment
letter dated 27th January, 2008 subject to the terms and
conditions. As highlighted and pointed out, Clause (5) makes it clear
that the services could be terminated without assigning any reasons
at one month s notice or salary in lieu thereof and the incumbent
like the petitioner had also a corresponding right to leave with one
month s notice or on payment of salary in lieu thereof. After the
appointment of the petitioner in January-2008 and as reflected,
admittedly, in the petition as well as in the representation made by
the petitioner at Annexure-I, there were some complaints by the girl
students, for which, admittedly, a committee was formed and on the
basis thereof, the Executive Council has ultimately taken the
decision to discontinue the petitioner after the academic term by the
impugned resolution at Annexure-A. Therefore, the short point or
issue which is required to be focused is can it be termed that such
decision taken by the Executive Council is arbitrary or violative of
Article 14 of the Constitution of India. Though in the petition,
averments and allegations have been made with regard to bias or
prejudice by respondent Nos.3 and 6 inasmuch as initially, he seems
to have a quarrel with respondent No.6 and had questioned his
eligibility by calling the information under the Right to Information
Act. Thereafter, the petitioner has again questioned the eligibility
and qualification of respondent No.3 by seeking the information under
the Right to Information Act. Thereafter, the allegations are made
that he has been victimised at the instance of respondent Nos.3 and
6, the decision is taken admittedly by the Executive Council and
therefore, he has made the allegations that respondent No.3 had
either misinformed or not put the facts properly before the Executive
Council, resulting in the impugned decision. In other words, it also
imputes that the Executive Council has also arbitrarily taken the
decision and it has been specifically averred so, as discussed above,
in paragraph 2.18 that the Executive Council has taken arbitrary
decision at the instance of respondent Nos.3 to 6 without giving any
opportunity. The Executive Council, as discussed above, is comprising
of various dignitaries, namely, Honourable Visitor – Honourable the
Chief Justice of India, who is the patron in chief of the institute,
and Honourable Judges of the Supreme Court and High Court and others,
who are the members of the Executive Council. One fails to understand
how respondent No.3 can veil the power or authority over all the
members of the Executive Council so that the Executive Council is
carried away at the instance of respondent No.3. Therefore, merely by
making the allegations, the action does not become arbitrary or
violative of Article 14. The Honourable Apex Court has observed in
its judgement in the case of Sadananda Halo & Ors.
(supra) that the allegations are required to be proved or at
least prima facie established.
7. Though
much emphasis was given on the aspect of reasons having been not
given or no opportunity has been given to the petitioner, the same is
also without any merit. It is evident that Clause 5 of the
appointment letter itself makes it clear that the appointment is
subject to the approval of the Executive Council. It further makes it
very clear that the services could be discontinued by one month’s
notice, as pointed out by the learned Counsel, Ms. Rawal, on the
basis of the communication, which was addressed in response to the
information sought for by the petitioner himself regarding the power
and authority. Question No.2 and answer thereto makes it very clear
that such authority or power rests with the Executive Council. It is,
in these circumstances, that the question of giving an opportunity to
the petitioner while discontinuing the services does not arise. At
this juncture, the observations made by the Honourable Apex Court in
its judgement in the case of A.M.S. Sushanth vs. M. Sujatha,
reported in (2000) 10 SCC 197 are required to be
appreciated. The Court has observed as under:
Natural
justice has been variously defined. It is another name for common
sense justice. Rules of natural justice are not codified canons. But
they are principles ingrained into the conscience of mind. Natural
justice is the administration of justice in a common sense liberal
way. Justice is based substantially on natural ideals and human
values. The administration of justice is to be freed from the narrow
and restricted considerations which are usually associated with
formulated law involving linguistic technicalities and grammatical
niceties. It is the substance of justice which has to determine its
form. Principles of natural justice are those rules which have been
laid down by the courts as being the minimum protection of the rights
of the individual against the arbitrary procedure that may be adopted
by a judicial, quasi- judicial and administrative authority while
making an order affecting those rights. These rules are intended to
prevent such authority from doing injustice.
Moreover,
a useful reference can be had to the observations made by the Apex
Court in its judgement in the case of Ajit Kumar Nag vs.
General Manager (PJ), Indian Oil Corporation Ltd., Haldia & Ors.,
reported in (2005) 7 SCC 764, wherein
the Honourable Apex Court has observed thus:
The
principles of natural justice are not rigid or immutable and hence
they cannot be imprisoned in a straight-jacket. They must yield to
and change with exigencies of situations. They must be confined
within their limits and cannot be allowed to run wild. While
interpreting legal provisions, a court of law cannot be unmindful of
the hard realities of life. The approach of the Court in dealing with
such cases should be pragmatic rather than pedantic, realistic rather
than doctrinaire, functional rather than formal and practical rather
than ‘precedential’.
8. It
is also well settled that for determining as to whether the decision
is arbitrary or illegal, one is required to have reference to the
decision making process, which would be relevant material. In the
facts of the present case, the decision has been taken by the
Executive Council on the basis of the material. Therefore, it is the
decision based on the material having been considered objectively by
a collective body like the Executive Council. It is in these
circumstances that the submissions about the victimisation are
required to be appreciated and considered. As observed by the
Honourable Apex Court in the case of B. Srinivasa Reddy
(supra), the burden of establishing the mala fides is
very heavy on the person who alleges it. The allegations of mala
fides are often more easily made than proved and the very
seriousness of such allegations demands proof of a higher order of
credibility. Therefore, when the allegations are made that even the
Executive Council has taken the decision at the behest and at the
instance of respondent Nos.3 and 6, the allegations by mere words
would not be sufficient and the petitioner who is otherwise well
versed in law cannot be permitted to have such allegations without
any material in support thereof.
9. As
the appointment order itself, as stated above, clearly suggests that
it is a tenure appointment subject to the approval by the Executive
Council and if the Executive Council has not found it fit or
desirable to approve the appointment itself by the impugned decision,
it cannot be said that it is arbitrary or violative of rules of
natural justice. If the appointment itself is according to the clause
in the appointment order which clearly suggests about bilateral or
mutual rights to terminate or discontinue the services, which would
be again subject to the approval by the Executive Council, and the
Executive Council has not approved the appointment itself and decided
to discontinue the services, the same cannot be said to be arbitrary.
There is no question of violation of the rules of natural justice or
having not passed any reasoned order inasmuch as it is not punitive
and it is simply non-approval of the appointment based on the
material before the Executive Council, deciding about the suitability
of the candidate like the petitioner. Therefore, as reflected in the
appointment letter itself, reserving the right to discontinue during
the probation, on one month s notice to either side, cannot be
construed in a manner that even such appointment has to be continued
per force, which in turn frustrates the said very clause in the
appointment or agreement. Therefore, the petitioner, having accepted
the appointment, cannot approbate and reprobate, that he would accept
the order or appointment, but, wants to ignore the relevant clause.
10. As
regards the aspect of locus standi, though the learned
Advocate for the petitioner has referred to the judgement of the High
Court of Karnataka with regard to the appointment of Faculty of Law
questioned by the petitioner, it is, however, to be considered in the
background of the facts and circumstances and it will not have any
application qua the facts of the present case because, as
observed in the judgement of the Honourable Court which has been
referred to by the learned Counsel Ms. Raval reported in B.
Srinivas Reddy (supra) that it cannot be challenged
by the person like the petitioner to redress his personal grievance.
11. In
view of the aforesaid discussion, this Court is of the opinion that
the present petition deserves to be dismissed in limine. Hence, the
same is dismissed.
[Rajesh
H. Shukla, J.]
kamlesh*
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