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1997 DIGILAW 218 (GAU)

Abdul Jabbar v. State of Assam

1997-09-22

A.K.PATNAIK

body1997
In this application, under Article 226 of the Constitution, the petitioners have prayed for quashing the order dated 20.9.96 passed by the Director of Higher Education. Assam, resolution No.3 of the Special Body of the Moirabari College passed in its meeting held on 1.6.97 and the notices dated 14.7.97 terminating the services of the petitioners. 2. The facts briefly are that the Moirabari College was established sometime in the year 1981 and was taken over by the Government under Deficit system of Grants-in-aid with effect from 11.1.96. By an order dated 26.4.96 of the Director of Public Instructions. Assam, the Governing Body of the college with Mustafa Safiul Islam as its President was constituted. The said order was challenged in Civil Rule No.3705 of 1996 and by an interim order passed by this Court on 28.8.96 the operation of the aforesaid order dated 26A.96 of the Director of Public Instructions. Assam, constituting the Governing Body of the college was stayed. During the pendency of the said civil rule, however, a Special Body of the college with Shri Babul Das. Minister. State. Fisheries. Assam, as its President was constituted by the State Govt. by notification dated 27.5.97. the said notification dated 27.5.97 was also challenged before this Court in Civil Rule No.2517 of 1997 and this Court while issuing Rule on 2.6.97 passed an interim order to the effect that pending disposal of the civil rule and until further orders, the said notification dated 27.5.97 shall suspended. Thereafter, an application was filed before this Court numbered as Misc Case No.552 of 1997 for vacating the said interim order dated 2.6.97 and this Court took a view that the Special Body constituted under notification dated 27.5.97 should be allowed to function till Civil Rule Nos.3705 of 1996 and 2517 of 1997 are disposed of after hearing on merit and, accordingly, vacated the said interim order dated 2.6.97. The aforesaid civil rules are still pending disposal. In the meanwhile, the Governing Body of the college which was constituted under order dated 26.4.96 of the Director of Public Instructions, Assam and which is under challenge in Civil Rule No.3705 of 1996 appointed petitioners No 2 to 7 as Lecturers in different subject, and petitioners No. 1 and 11 as Laboratory Bearer and Library Bearer respectively by resolutions adopted in its meeting held on 26.5.96. But the said appointments of 8 Lecturers including the petitioner Nos. 2 to 7 and 7 non-teaching staff including the petitioner Nos. 1 and 11 were not approved by the Director of Higher Education. Assam and in the impugned order dated 20.9.96 of the Director of Higher Education, Assam, communicated to the Principal of the Moirabari College it was observed that the appointments in Deficit colleges could be made only after obtaining the prior approval of the Director of Higher Education. Assam, but as no prior approval had been obtained and the posts had not been advertised and no selection process had been followed, the 15 appointments of teaching and non-teaching staff were not valid under the established rules and procedure. By the said impugned order dated 20.9.96. the Director of Higher Education. Assam, requested the Principal of Moirabari College to advertise the posts after the posts were allotted to the college and take necessary action for filling up the posts as per rules and procedure. The Special Body of the college in its meeting held on 1.6.97 adopted the impugned resolution for cancellation of the illegal appointment of the petitioners and thereafter issued the impugned notices dated 14.7.97 to the petitioners terminating the petitioners from service. Soon thereafter an advertisement was published in the Assam Tribune dated 20.7.97 by the Secretary of the Special Body of the Moirabari College inviting applications for appointment to different posts of Lecturers and different post of non-teaching staff. Aggrieved, the petitioners filed the present civil rule challenging the aforesaid order dated 20.9.97 of the Director of Higher Education. Assam, the aforesaid resolution of the Special Body meeting held on 1.6.97 and the termination of the services of the petitioners by notices dated;J4.7.97. 3. When the civil rule was moved on 30.7.97. this Court while issuing the Rule stayed the termination notices dated 14.7.97 and directed the respondents not to proceed with the process of selection pursuant to the advertisement dated ' 20.7.97. 3. When the civil rule was moved on 30.7.97. this Court while issuing the Rule stayed the termination notices dated 14.7.97 and directed the respondents not to proceed with the process of selection pursuant to the advertisement dated ' 20.7.97. The aforesaid interim order was however challenged before the Division Bench in Writ Appeal No.454 of 1997 and the Division Bench by its order dated 11.8.97 stayed the operation of the said interim order dated 30.7.97 passed by the learned Single Judge in the present civil rule and after hearing the parties disposed of the writ appeal by judgment and order dated 226.8.97 with the direction that this civil rule shall be heard and disposed of not later than 22.9.97 and with the further direction that no action shall be taken by the respondents to make fresh appointment till the civil rule is disposed of. To was further directed that the interim order passed by the Division Bench on 11.8.97 would continue to be operative, hence the present position is that the petitioner stand terminated from service under the impugned order dated 14.7.97, but fresh recruitment to the posts to which the petitioners were appointed is yet to take place pursuant to the advertisement dated 20.7.97. 4. Mr. SN Bhuyan, learned counsel for the petitioners, submitted that the very constitution of the Special Body under notification dated 27.5.97 of the Govt. of Assam is under challenge before this Court in Civil Rule No.2517 of 1997 and in case this Court declares the constitution of the said Special Body as ' illegal, all actions of the Special Body will also become illegal and void. Hence the termination of the services of the petitioners pursuant to resolution adopted by Special Body would also be illegal and void. Mr. BP Borah, learned Senior Govt. Advocate, Assam, appearing for respondents 1, 2 and 3, Mr. AK Bhattacharyya, learned counsel appearing for respondents 4 and 5, assisted by Mr.AS Choudhury, on the other hand, submitted that the services of the petitioners were terminated under the impugned notices dated 14.7.97 because of the fact that the appointments of the petitioners, teaching and non-teaching, were made without prior approval/permission of the Director of Higher Education, Assam, as required under Rule 18 of the Assam Aided College Management Rules. 1976. 1976. Thus the termination of the services of the petitioners who were appointed contrary to the provision of the statutory rules cannot be held to be illegal and/or void merely because the constitution of the Special Body of the college is under challenge before this Court. 5. In my considered opinion, the challenge to the constitution of the Special Body of the college under notification dated 27.5.97 of the State Govt. before this Court in Civil Rule No.2517 of 1997 will have absolutely no bearing on the question of termination of the petitioners. The questions to be decided in this civil aile are as to whether the appointment of the petitioners to various posts of teaching and non-teaching staff of Moirabari College is in accordance with the rules and as to whether the termination of the petitioners from service is contrary to the principle of natural justice, and these questions can be decided on the basis of the provisions in the statutory rules as well as law relating to observance of principle of natural justice and the decision on these questions are not dependent upon the validity or otherwise of the notification constituting the Special Body of the college. 6. Mr. SN Bhuyan, learned counsel appearing for the petitioners, however, argued that admittedly the Moirabari College was taken over by the State Govt. under the Deficit system of Grants-in-aid with effect from 11.1.96 and hence the Assam Aided College Management Rules. 1976 including Rule 18 thereof would apply to all appointments of teaching and non-teaching staff in the college made after 11.1.96. Referring to Annexures to the letter dated 4.6.96 of the Principal of the Moirabari College to the Director of Public Instructions, Assam, Mr. Bhuyan pointed out that the petitioner Nos.l, 3. 8, 9 and 11 had joined the college and were working in different posts prior to 11.1.96 on instructions of the Principal of the said college as the Governing Body was not in existence then and as soon as the Governing Body of the college constituted by the order dated 26.4.96 started functioning, the said petitioners Nos. 1.3,8,9 and 11 were regularised in service by the Governing Body in its meeting held on 26.5.96. These facts, according to Mr. 1.3,8,9 and 11 were regularised in service by the Governing Body in its meeting held on 26.5.96. These facts, according to Mr. Bhuyan, show that the petitioner Nos.l. 3, 8, 9 and 11 were in fact appointed prior to 11.1.96 when Rule 18 of the Assam Aided College Management Rules, 1976, became applicable to the college. Hence, no prior approval of the Director of Public Instructions/Director of Higher Education. Assam was required for appointment of the aforesaid petitioners as provided under Rule 18 of the said Rules, 1976. 7. Mr. BP Borah appearing for respondents 1, 2 and 3 referred to the averments in affidavit-in-opposition of the respondents to show that the impugned order dated 20.9.96 was passed only when on enquiry it was found that the petitioners were appointed after 11.1.96 without the prior approval of the Director of the Public Instructions. Assam. Mr. AS Choudhury. assisting Mr. AK Bhattacharyya, learned senior counsel appearing for the respondents 4 and 5, on the other hand, referred to the letter dated 31.1.96 and its Annexures sent by the Principal of the college to the Director of Public Instructions/Director of Higher Education, Assam, to show that in Annexures to the said letter dated 31.1.96, particulars of different teaching and non-teaching staff of Moirabari College are given, and the names of the petitioners do not find place in the said Annexures. But thereafter when the Governing Body constituted under the order dated 26.4.96 of the Director of Public Instructions, Assam, started functioning, another letter dated 4.6.96 was addressed by the Principal of Moirabari College to the Director of Public Instructions, Assam, and in the Annexures to the said letter the names of the aforesaid petitioners No. 1. 3, 8, 9 and 11 were shown as having joined the college prior to 11 1.96 and as having been appointed pursuant to the Governing Body resolution dated 26.5.96. These materials would show mat actually the aforesaid petitioners No. 1. 3, 8, 9and 11 had not been appointed prior to 11.1.96 and their names were included as an after thought in the subsequent letter dated 4.6.96 as if they joined the college and were working prior to 11.1.96. 8. These materials would show mat actually the aforesaid petitioners No. 1. 3, 8, 9and 11 had not been appointed prior to 11.1.96 and their names were included as an after thought in the subsequent letter dated 4.6.96 as if they joined the college and were working prior to 11.1.96. 8. It appears from the affidavit-in-opposition filed on behalf of respondents 1, 2 and 3 that soon after the Moirabari College was taken over under the Deficit system of Grants-in-aid with effect from 11.1.96, the Deputy Director of Higher Education. Assam, sent a letter dated 22.1.96 calling for various particulars relating to teaching and non-teaching staff of the college and by letter dated 31.1.96, the Principal of Moirabari College sent the particulars of teaching and non-teaching staff of the college to the Director of Public Instructions. Assam, and none of the petitioners were shown in the Annexures to the said letter dated 31.1.96 of the Principal of the Moirabari College as part of the existing staff. Thereafter, in the subsequent letter dated 4.6.96 the latest particulars of the teaching and non-teaching staff of the college were given and the names of the petitioners No. 1, 3, 8, 9 and 11 were shown as part of the teaching and non-teaching staff and as having joined on different dates prior to 11.1.96 and as having been appointed by the Governing Body resolution dated 26.5.96. The names of the other petitioners were also shown as having been appointed in the college pursuant to the Governing Body resolution dated 26.5.96. The names of the other petitioners were also shown as having been appointed in the college pursuant to the Governing Body resolution dated 26.5.96. In view of the aforesaid discrepancies in the first letter dated 31.1.96 and the second letter dated 4.6.96 and other allegations as regards appointment of -teaching and non-teaching staff of the college made by one Israil Hussain Choudhury and others in their complaint dated 22.6.96, to the Chief Minister, Assam, which was forwarded to the Minister, Higher Education, Assam, a preliminary inquiry was conducted by the Directorate of Higher Education through Shri DR Boro, the then Joint Director of Higher Education, Assam, who visited the college on 1.8.96 and submitted his final inquiry report dated 30.8.96 to the ' Directorate of Higher Education and it is only pursuant to the said report that the impugned order dated 20.9.96 was issued by the Director of Higher Education, Assam, that 8 new Lecturers and 7 non-teaching staff including the petitioners have been appointed by the Governing Body resolution dated 26.5.96 and that these 15 appointments were made without obtaining the prior approval of the Director of Higher Education and that without any advertisement and selection and were therefore not valid as per the existing rules and procedure. The aforesaid facts clearly indicate that none of the petitioners were appointed prior to 11.1.96 when the Moirabari College was taken over by the State Govt. under the Deficit system of Grants-in-aid and the Assam Aided College Management Rules. 1976 including Rule 18 thereof became applicable to the college. 9. Mr. Bhuyan however contended that even if it is held that the petitioners had been appointed without the prior approval of the Director of Higher Education as provided in Rule 18 of the Assam Aided College Management Rules. 1976. the Annexures to the affidavit-in-reply would show that the petitioners had been appointed to different posts subject to approval of the Director of Higher Education, and therefore, their services cannot be terminated without following the principles of natural justice and in the facts of the present case, no notice has been issued to the petitioners to show cause as to why their services should not be terminated. He cited the'judgment of a Division Bench of this Court in the case of Sutapa Homochoudhury vs. Divisional Manager, National Insurance Co Ltd & others, (1992)1 GLR 350 (1992 (1) GLJ 44)., in which it has been held that even if the authorities had the power to treat the services of the employees as automatically terminated, it would not absolve the authorities from their obligation to observe the principles of natural justice. He also cited the decision of the Supreme Court in the case of State of Punjab & others vs. Gursharan Singh & others, (1977) 1 SC Service Law Judgments 614. 10. In reply. Mr. AK Bhattacharyya, learned senior counsel appearing for the respondents 4 and 5. cited the judgment of the Supreme Court in the case of Krishan Murari Lai Sehgal vs. State of Punjab, AIR 1977 SC 1233 , for the ' proposition that previous approval does not mean subsequent ratification and contended that since Rule 18 of the Assam Aided College Management Rules. 1976. required 'prior approval' of the Director of Public Instructions before any final decision is taken regarding appointment of teaching of non-teaching staff of a college under Deficit system of Grants-in-aid. the appointment orders issued in favour of some of the petitioners and annexed to the affidavit-in-reply whereunder the said petitioners have been appointed subject to the approval of the Director of Higher Education/Director of Public Instructions. Assam, are contrary to the bare provision of said Rule 18 and. therefore, appointments of the petitioners were all illegal and void, and such illegal and void appointments made contrary to the rules could be cancelled by the authorities without observing the principles of natural justice. He cited the judgment of this Court in the case of Shri Dulal Tahbildar vs. State of Assam & others and the other connected cases, (Civil Rule No.5216 of 1996 and other civil rules), in which this Court referred to foe decision of the Supreme Court in the case of State of MP vs. Shyam Pardhi, (1996) 7 SCC 118 , in which the Supreme Court has taken a view that where appointments made in violation of the statutory rules are sought to be cancelled, there is no question of violation of principles of natural justice. Mr. Mr. Bhattacharyya also relied on certain paragraphs of the judgment of the Supreme Court in the case of Union of India vs. Tulsiram Patel, (1985) 3 SCC 398 , for his submission that it is for the Court to decide whether the observance of principle of natural justice was necessary for a just decision on the facts of the case. He further cited the decision of the Supreme Court in the case of State of UP vs. UP State Law Officers' Association, (1994) 2 SCC 204 , in which it has been held that those who come to be appointed by arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary and those who come by the back door have to go by the same door. 11. In the instant case, according to Mr. Bhattacharyya, since no advertisement has been issued, no selection has taken place and the petitioners have been arbitrarily picked up and appointed by the Governing Body of the college in its resolution dated 26.5.96 without prior approval/permission of the Director of Higher Education. Assam, the said appointments were liable to be terminated without following the principles of natural justice. 12. In the case of Union of India vs. Tulsiram Patel (supra), Madon, J. observed: "Though the two rules of natural justice, namely, nemo judex in causa sua and audi alteiam partem, have now a definite meaning and connotation in law and their content and implications are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible." In the said decision, the Supreme Court also took note of the observations of Hegde, J. in the case of AK Kraipak vs. Union of India, (1969) 2 SCC 262 , to the effect that whenever a complaint is made before a Court that some principle of natural justice had been contravened the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. In the case of State of MP vs. Shyam Pardhi (supra), the Supreme Court found that the appointments were made in violation of statutory rules and held that there was no question of violation of principle of natural justice where such appointments were sought to be cancelled. In the present case also, Rule 18 of the Assam Aided College Management Rules, 1976, clearly provided that before making any final appointment of teaching and non-teaching staff of a college covered under the Deficit system of Grants-in-aid 'prior approval' of the Director of Higher Education has to be obtained by the Governing Body of the said college. In the instant case admittedly no such prior approval of the Director of Higher Education was taken before the petitioners were appointed by the Governing Body of the college in its resolution passed on 26.5.96. Further, the Director of Higher Education has now observed in his impugned order on the basis of the inquiry report submitted by the Joint Director of Higher Education that the posts in which the petitioners have been appointed were not advertised and no selection was held for filling up the said posts and yet the petitioners were appointed. The petitioners have also not made out a case in the writ petition that any advertisement was issued or any selection was conducted before they were appointed. 13. On the facts and in the circumstances of the case, therefore, I am of the opinion that it was not necessary for the respondents to observe the principles of natural justice before terminating the services of the petitioners. The decision in I the case of Sutapa Homochoudhury vs. Divisional Manager (supra) cited by Bhuyan was a case of an employee who was duly appointed on probation and was sought to be terminated thereafter and the same was not a case where the service of the employee was sought to be terminated on the ground that her appointment was contrary to the provision of the rules and hence the decision in the said case does not apply to the facts of the present case. 14. So far as the case of the Supreme Court in State of Punjab & others vs. Gursharan Singh & others (supra) cited by Mr. Bhuyan is concerned, I find that the said case relates to absorption of the existing staff 9f Govt. Engineering College. Bhatinda in different Govt. 14. So far as the case of the Supreme Court in State of Punjab & others vs. Gursharan Singh & others (supra) cited by Mr. Bhuyan is concerned, I find that the said case relates to absorption of the existing staff 9f Govt. Engineering College. Bhatinda in different Govt. institutions after the said college was handed over to an Autonomous Body, and I do not see as to how the said decision of the Supreme Court applies to the present case. 15. For the reasons stated above, this writ petition has no merit and is accordingly dismissed, and the interim order directing the respondents not to take steps for recruitment to the posts advertised under the advertisement dated 20.7.97 in the Assam Tribune, is hereby vacated. Considering the entire facts and circumstances of the case, the parties shall bear their own costs.