S. P. Lal v. State of Uttar Pradesh, Lucknow — 1991 DIGILAW 1210 (ALL)

ORDER B.L. Yadav, J. - Whether the appointment of petitioner as professor (Acharya) in the subject of Organon of Medicine and Homoeopathic Philosophy under the Provision of U.P. Homoeopathic Medical Colleges (Taking over of Management) Act 1979, (U.P. Act No. 20 of 1979, for short the Act), even after taking over charge, could be kept in abeyance, and later on services terminated, without following the procedure prescribed, is the short question for determination in the present petition under Article 226 of the Constitution of India filed by the petitioner seeking a relief for a writ of Mandamus commanding the State Government, respondent No. 1, to rescind or cancel its order communicated to the petitioner by the Principal, State Ghazipur Homoeopathic Medical College & Hospital, G hazipur, respondent No. 4 by communication dated 6-5-1986, which was received by the petitioner on 7-5-1986, and to issue a writ of Mandamus commanding the respondents to treat the petitioner as a lawful holder of the post of Professor in the Homoeopathic Medical College. 2. The factual matrix of the case is that on 7-9-1970 the petitioner joined the post of Lecturer in the Ghazipur Homoeopathic Medical College and Hospital, Ghazipur, which was at a serial No. 9 of the Scheduled colleges. The list of such scheduled colleges has been given at the close of the Act. But the management of the said college was taken over by the State Government on the enforcement of U.P. Homoeopathic Medical Colleges (taking over of Management) Ordinance, 1979, on 4-5-1979, (for short the Ordinance), which was replaced by U.P. Act No. 20 of 1979 After taking over the District Magistrate was appointed as Administrator of the College. Under the Ordinance, the District Magistrate as Administrator, has all the powers of erstwhile management of the college. In view of the provisions of Section 3 of the Ordinance, from the appointed date the management of the scheduled colleges shall vest in the State Government for a period of one year from such date, which date was later on extended. Later on, U.P. Homoeopathic Medical Colleges (Acquisition and Miscellaneous provisions) Act, 1981, (for short Act of 1981), was enacted and by virtue of Section 17 of the Act U.P. Homoeopathic Medical Colleges (Taking over of Management) Act, No. 20 of 1971 was repealed. Later on, U.P. Homoeopathic Medical Colleges (Acquisition and Miscellaneous provisions) Act, 1981, (for short Act of 1981), was enacted and by virtue of Section 17 of the Act U.P. Homoeopathic Medical Colleges (Taking over of Management) Act, No. 20 of 1971 was repealed. The District Magistrate, as Administrator appointed under Section 4 of the Act, has all the powers of management of the erstwhile Homoeopathic Medical College, Ghazipur which was one of the scheduled colleges appended under S. 4 of the Act, and created the post of Professor (Acharya) in the subject of Organon of Medicine and Homoeopathic Philosophy on 10-6-1980, which was a promotion post. The petitioner being one of the applicants, was promoted after following the procedure prescribed on the basis of the certificate and recommendation of the Principal dated 26-3-1980. The petitioner was ultimately appointed on the post of Acharya in the pay scale of Rs. 500-1000 by order 10-6-1980. A true copy of the appointment letter has been filed as Annexure-3 to the writ petition. True copy of the recommendation in favour of the petitioner by the Principal of the College dated 26-3-1980 is Annexure 2 to the petition. The petitioner joined the post on 11-6-1980 and submitted the joining report on the same date (vide Annexure 4 to the petition). But later on for the reasons best known to the Administrator (District Magistrate), respondent No. 3, even after the petitioner had joined, the said appointment was kept in abeyance. The petitioner made representation that he was appointed against a clear vacancy of Professor by the Administrator in pursuance of his powers under Section 4 of the Act, immediately before the appointed date. Once the petitioner had joined the post of Professor it became fait accompli and it could not have been kept in abeyance later on (i.e. on 27-6-1980). Certainly in accordance with the procedure prescribed, once a Professor has been appointed against a clear vacancy, disciplinary action could have been taken against him, but the appointment letter itself cannot be kept in abeyance. No illegality or irregularity was committed by the petitioner in getting the appointment letter, nor any concealment of fact was made nor there was' lack of any genuineness in the appointment of petitioner as is clear from Annexure 3 to the petition. There were documents indicating that against clear vacancy of Professor the petitioner was appointed. No illegality or irregularity was committed by the petitioner in getting the appointment letter, nor any concealment of fact was made nor there was' lack of any genuineness in the appointment of petitioner as is clear from Annexure 3 to the petition. There were documents indicating that against clear vacancy of Professor the petitioner was appointed. But the respondents committed error apparent on the face of record in rejecting the representation of the petitioner. Against that the petitioner made an application on 27-3-1981 to the Administrator of the College to set aside or recall the order dated 27-6-1980 (Annexure 10). Representation was made by the petitioner to the Joint Secretary; Government of U.P. Medical Section 9, Lucknow (Annexure 11) on 16-9-1982 giving details of the fact. Another representation was made on 2-4-1983 to, the Deputy Secretary, U.P., Medical Section 9 (Annexure 12). The petitioner thereafter filed a writ petition in this Court for-the purposes of getting his representation decided and a Division Bench of this Court by order dated 23-9-1985 directed the respondents to dispose of the petitioner's representation. Ultimately by a non-speaking order dated 6-5-1986 the petitioner's representations dated 27-3-1981 and 2-4-1983 were rejected. 3. On behalf of the respondents a counter affidavit was filed accepting the creation of post vide para 5 of the counter affidavit filed by Sri A.N. Mishra, Principal Ghazipur Homoeopathic Medical College and Hospital, Ghazipur, and stating that the procedure was to be followed while appointing persons to the post of Professor of the Homoeopathic Medical College. Even though he admitted that he has forwarded the application of the petitioner with his own comments and recommendation. It was further alleged in para 6 of the counter affidavit it is wrong to say that. the deponent (principal) gave any wrong impression pertaining to the joining of petitioner on the post of Professor. As the petitioner had not tendered his resignation from the post of Lecturer, he could not be permitted to hold another post simultaneously. It was the case of respondents that the writ petition has no substance. The learned counsel for the parties suggested that petition may be decided on merits. 4. As the petitioner had not tendered his resignation from the post of Lecturer, he could not be permitted to hold another post simultaneously. It was the case of respondents that the writ petition has no substance. The learned counsel for the parties suggested that petition may be decided on merits. 4. Sri Krishna Mohan Sinha, learned counsel for the petitioner urged that before passing the impugned order keeping the appointment of petitioner in abeyance and terminating his services and dismissing the representations, no opportunity of hearing was afforded to him, hence the principles of natural justice have been violated. It was further urged that once the petitioner was appointed under the orders of the District Magistrate/Administrator, who has all the powers of management of the scheduled colleges immediately before the appointed date, in view of the provisions of Section 4(4) of the Act, the appointment of the petitioner became a 'fait accompli' and the service of the petitioner could be terminated only under Section (?) of the Act, when the Administrator was satisfied that the appointment was prejudicial to the purpose of the Act. But that was not done, nor even after the enforcement of Act of 1981, the appointment of petitioner was held to be not genuine, nor for that purpose, to ascertain the validity of the same, neither any officer was appointed by the State Government, nor any Review Committee was constituted. Consequently the appointment of petitioner could not be kept in abeyance, nor the same could later on be terminated nor the representation of petitioner could be rejected by the impugned order. It was further urged that in view of the provisions of Section 17 of the Act of 1981 containing the repeal and savings provision even though the Act was repealed, but in view of the provisions of Section 17(2) not withstanding such repeal, if anything done or an action taken under the enactment repealed by sub-section (1), shall continue to be valid as if this Act has not come into force. 5. Learned Standing Counsel, on the other hand, refuted the arguments and urged that the appointment of petitioner has correctly been kept in abeyance and his services have correctly been terminated and representations correctly rejected. 6. 5. Learned Standing Counsel, on the other hand, refuted the arguments and urged that the appointment of petitioner has correctly been kept in abeyance and his services have correctly been terminated and representations correctly rejected. 6. Having heard the learned counsel for the parties the points for determination are whether the petitioner was appointed as Professor by the Administrator/ District Magistrate against a clear vacancy and whether his order of appointment can be kept in abeyance or his services could be terminated, and if, so, whether "AUDI ALTERAM PARTEM" rule was followed before passing the impugned orders? Section 4 of the Act confers all the powers of management of the erstwhile Homoeopathic Medical College on the Administrator/ District Magistrate, who created a vacancy for the post of Professor. Applications were invited. The petitioner made application and he was selected after following the procedure prescribed and also keeping in view the recommendation of the Principal and the certificate issued by him to the effect that the petitioner was senior most lecturer and deserved to be appointed as Professor. The petitioner was appointed vide appointment letter dated 10-6-1980 and joined the post on 11-6-1980 (Annexure 4). That appears to be afternoon, and later on, on some conversation with the Principal, he has shown to have joined on 12-6-1980 before noon (Annexure 5). After the joining report having been furnished the appointment became a 'fait accompli' which could not be changed, modified or altered and that too can be done only if there is any provision under the Act, or under the Act of 1981. Under the Act, there was only provision under Section 7 that the services of any teacher can be terminated only after holding an enquiry that the continuance of service of a teacher of the College was prejudicial for the purpose of the Act or the College. But there was no such finding nor there was any such recommendation nor the Administrator has passed any such order under S. 7 of the Act. I am accordingly of the opinion that without following the procedure prescribed under S. 7 of the Act, neither the appointment letter of the petitioner could be kept in abeyance, nor his services as Professor could be terminated. 7. After the Act of 1981, there was only one procedure for termination of services of a teacher or Professor. I am accordingly of the opinion that without following the procedure prescribed under S. 7 of the Act, neither the appointment letter of the petitioner could be kept in abeyance, nor his services as Professor could be terminated. 7. After the Act of 1981, there was only one procedure for termination of services of a teacher or Professor. The State Government shall appoint a Committee to review the genuineness of the appointment made or shall nominate an officer for the said purpose and such officer or committee shall furnish a report to that effect. As no such review of the appointment of petitioner was made in accordance with Section 7 of the Act of 1981, consequently the order passed by Sri S.N. Jha, as Administrator/District Magistrate on 27-6-1980 keeping the appointment of petitioner in abeyance and the order dated 6-5-1986 rejecting the representation of the petitioner are manifestly erroneous and beyond the provisions of the Act and the Act of 1981. 8. Now coming to the next point that even though the Act was repealed under Section 17 of the Act of 1981, sub-section (2) of Section 17, however, opens with non-obstante clause that notwithstanding such repeal, if anything done or action taken under the enactment repealed by sub-section (1), shall continue to be valid as if this Act has not come into force. The provisions of Section 7 of the Act (U.P. Act No. 20 of 1979) may be read together with the provisions of Sections 6, 7, 10 and 17 of the Act of 1981. Section 7 of the Act opens with non obstante clause and S. 10 has been given overriding effect. The non obstante clause is contained in the maxim "NON OBSTANT ALIQUO STATUTO IN CONTRARUM" which obviously means notwithstanding any statute to the contrary. While providing non-obstante-clause the legislature always keeps in mind those provisions which have been made in the way or which are to the contrary. Article 278 of the Constitution, (omitted by the Constitution V 11th Amendment Act 1956), also opens with non obstante clause. That provision is equal to the effect that inspite of other provisions contained in other articles of the Constitution, or in other words, the other articles would not operate as impediment to the effects of Article 278. Article 278 of the Constitution, (omitted by the Constitution V 11th Amendment Act 1956), also opens with non obstante clause. That provision is equal to the effect that inspite of other provisions contained in other articles of the Constitution, or in other words, the other articles would not operate as impediment to the effects of Article 278. It is needless to say that Article 372 was subject to Article 278 which was operative in its own sphere before being omitted. In other words, Article 278 used to override Article 372. (See South India Corporation v. Secretary, Board of Revenue, AIR 1964 SC 207 (215). 9. In my opinion, the non-obstante-clause contained in a provision indicates that the provision has to prevail even though there might be any other provision mentioned in such non-obstante clause to the contrary. In case there is any inconsistency or departure from the non-obstante-clause and other provision, it is the non obstante-clause which would prevail over the other clauses. At the same time the necessary corollary is that there must not be any inconsistency between two provisions in all those cases. But non-obstante-clause has to be so interpreted so that it may operate in its own field without creating any collision with any other provision. In the present case S. 7 of the Act (Act of 1979) opens with non-obstante-clause, hence the provision pertaining to the termination of appointment of teachers or other employees of the Homoeopathic Medical Colleges shall be operative. That provision is very clear that the services of teacher including professor can be terminated only if the Administrator is satisfied that his continuance in service is prejudicial to the purpose of the Act or the interest of the College. What is to be noticed is that in the present case neither the petitioner's appointment made by the Administrator was terminated in view of Section 7 of the Act, nor any such notice for such action was served on the petitioner. Consequently, once the petitioner was appointed as Professor and joined as such, that becomes the `fait accompli', and cannot be questioned except under Section 7 of the Act. But that was not done. Consequently, the respondents including the State of U.P. or the Administrator had no power or authority or jurisdiction to either put the appointment of petitioner in abeyance or to terminate the same. But that was not done. Consequently, the respondents including the State of U.P. or the Administrator had no power or authority or jurisdiction to either put the appointment of petitioner in abeyance or to terminate the same. The legislature has enacted S. 13 of the Act which is quoted below : "13. Act to have overriding effect :- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 10. A harmonious interpretation has to be placed on these provisions. It is to be kept' in mind that every statute or provision has to be interpreted in such a way so that it may keep pace with the changing concept and values in the society. In other words, the judicial interpretation has to commensurate with the requirement of fast changing society which is undergoing a rapid social and economic transformation. The object and reasons of the Act indicate that it was an Act to provide for the taking over in public interest, the management of certain' Homoeopathic Medical College for a limited period and for securing proper management thereof and for matters connected therewith or incidental thereto. As provided, the management of those colleges were taken over and consequently those powers of management were conferred on the `Administrator' as defined under S. 2(a) of the Act. The decision taken by the Administrator were to be taken on behalf of the State Government as provided under S. 4(1) of the Act. Under S. 4(3) of the Act the State Government was to issue such directions to the Administrator as to his powers and duties as the State Government may deem fit. The administrator appointed the petitioner, hence termination could have been made under S. 7 of the Act, or after its repeal review could have been made under S. 7 of the Act of 1981 by a review committee in case the petitioner's appointment was deemed to be not genuine. But at no point of time any officer was appointed as provided under S. 7 nor any such review committee was constituted, nor the petitioner's appointment was scrutinised by any review committee, hence the impugned orders, keeping the appointment of petitioner in abeyance, or terminating his services are beyond the powers or authority. But at no point of time any officer was appointed as provided under S. 7 nor any such review committee was constituted, nor the petitioner's appointment was scrutinised by any review committee, hence the impugned orders, keeping the appointment of petitioner in abeyance, or terminating his services are beyond the powers or authority. Section 13 of the Act was given overriding effect, which obviously means that the provisions contained under the Act were to prevail and to remain operative even though there may be some inconsistent provisions. Similarly S. 10 of the Act of 1981 was also given overriding effect. Even though there could be any rules or Government Order in respect of petitioner as Professor after coming into force of the Act, 1981, the provisions of the Act of 1981 were to prevail. The teachers and other employees including the professor became employees of the State Government in view of S. 6 of the Act of 1981. 11. After the repeal of the Act by Act of 1981 in view of Section 17(2) providing that notwithstanding such repeal, if anything done or action taken under the enactment repealed by sub-section (1), shall continue to be valid as if this Act has not come into force. The appointment of petitioner was made under the Act of 1979 consequently the Act of 1981 shall have no effect what so evered and the appointment of petitioner could have been terminated only under Section 7 (seven) of the Act of 1979 in case the petitioner's services w ere deemed to be prejudicial to the purpose of the Act or the interest of the College. But that procedure was not followed, nor by any stretch of imagination the petitioner's services could be deemed to be prejudicial either to the purpose of the Act or the interest of the College, rather it was conducive and as there was a bare necessity for a Professor, the vacancy was created by the Administrator and petitioner was appointed on that post after following the procedure prescribed. Hence neither the appointment letter of petitioner as Professor could be kept in abeyance nor his services could be questioned or terminated. 12. Hence neither the appointment letter of petitioner as Professor could be kept in abeyance nor his services could be questioned or terminated. 12. Reverting to the point as to whether the principles of natural justice were violated while taking action against the petitioner by keeping the appointment of petitioner in abeyance or terminating his services or disposing of different representation by the impugned order including Annexure 16. In fact natural justice is a great harmonizing principle intended to manifest law to fairness and to secure justice by affording opportunity of hearing to the person concerned. There are series of decisions beginning with Dr. Bentley's case (1723) 1 Stra 557. The rule of natural justice is contained in oft quoted expression "AUDI ALTERAM PARTEM", which obviously means that no one may be condemned unheard, the corrollary of which is that he should be given reasonable notice of the matter of the case to be met. (See Errington v. Minister of Health, (1935) 1 KB 249; Pillai v. City Council of Singapore, (1968) 1 WLR 1278; Herring v. Templeman, (1973) 3 All ER 569). The other rules emanating from the first two are concerned with the principles of equality and it is to the effect that the Court or Tribunal or the Authority deciding the rights of parties must act in good faith and it must also decide by reasoned judgment so that the person against whom order has been passed or any superior authority may ascertain reasons which weighed in the mind of the court or the tribunal for having passed such order. 13. In Jurisprudence by R.W.M. Dias, IVth Edition London Butterworth, at page 278, there is a statement as follows : "The report of the Committee of Minister powers added two more doubtful rules. One is that a party is entitled to know the reasons for a decision, but this is not necessarily accepted even in judicial decisions. The other is that in a public enquiry held by an inspector to guide a Minister in reaching a decision, the inspector's report should be available to the parties, but this is not accepted either." (See R. v. Gaming Board of Great Britan, (1970) 2 QB 427; Wiseman v. Borneman, (1969) 3 All ER 275). In the present case no reasons have been given in the impugned orders. 14. In the present case no reasons have been given in the impugned orders. 14. Another view is contained in the oft quoted maxim "QUI ALIQUID AQUERIT PARTE INAUDITA ALTERA AQUUM LICET DIXERIT HAUD AQUUM FACERIT" which cannot that he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right, or in other words, as in these days expressed `justice should not only be done but should manifestly be seen to have been done.' (See Union of India v. Tulsi Ram Patel, AIR 1985 SC 1416 : (1985) 3 SCC 398 . 15. To sum up, the petitioner was appointed by the Administrator/District Magistrate after the clear vacancy for the Professor (Acharya) was created in the subject of Organon of Medicine and Homoeopathic Philosophy and petitioner was appointed Professor according to law and he joined the post on 11-6-1980. That order of appointment and joining by the petitioner could not be kept in abeyance. His services could have been terminated only within the provisions of S. 7 of the Act. The petitioner became an employee of the State Government in view of S. 6 of the Act of 1981 and under the Act of 1981 his services could have been terminated by a review committee in case his appointment was deemed to be not genuine. But that was also not done. The provisions of the Act and the Act of 1981 overriding effect by virtue of Sections 13 and 10 respectively (sic). Even after the repeal of the Act by Act of 1981 as his appointment was made under the Act, that would continue to be valid and legal. The respondents neither carried out the directions given by this court in an earlier Division Bench Decision (Annexure 13) nor any opportunity was afforded to petitioner before passing the impugned orders. Consequently the impugned orders are manifestly erroneous. The respondents have committed error apparent on the face of record in passing the impugned orders and rejecting his representations and it was the legal duty of respondents to treat the petitioner as Professor (Acharya) and to permit him to continue as such and pay salary and other emoluments admissible and payable to the Acharya (Professor) in the subject of Organon of Medicine and Homoeopathic Philosophy. The respondents having failed to perform their statutory and legal duties imposed by the statute, the petitioner has legal right under the statute to enforce its performance. 16. In view of the premises aforesaid and applying the Aristotelian and Baconian reasoning, the present petition succeeds and is allowed. The impugned orders dated 6-5-86 and 27-6-80 are quashed. The respondents are directed to treat the petitioner in continuous service since the date he joined the post of Professor in the State Ghazipur Homoeopathic Medical College & Hospital, Ghazipur, The petitioner shall be entitled to his salary and other admissible emoluments payable to a Professor since the date he joined, the amount of salary as Lecturer paid to the petitioner, may however be adjusted. The arrears of salary till August, 1991 shall be paid within two months from the date a certified copy of this order is produced before the respondents. The salary for the month of September 1991 shall be paid by 7-10-1991 and so on. Under the circumstances of the case, however, I assess the cost at Rs. 3500/- payable by respondents to the petitioner within a period of two months from today. Petition allowed.