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2001 DIGILAW 1748 (RAJ)

Maharishi Dayanand University v. R. K. Vyas

2001-11-02

A.R.LAKSHMANAN, ASHOK PARIHAR

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Judgment Ashok Parihar, J.-Since both the special appeals have arisen out of the same Judgment of the learned Single Judge, on joint request of the parties, both the appeals have been heard together and are being decided by this common Judgment . 2. Applications were invited for appointment on one post of the Registrar in the Maharishi Dayanand Saraswati University, Ajmer (hereinafter to be referred to as ‘the appellant-University’), vide advertisement dated 3.1998. The same was again notified in the subsequent advertisement dated 13/14.1998, including some more posts apart from the post of Registrar. In pursuance to the above advertisement, 17 applications were received for the post of Registrar. After scrutiny of the applications, 10 candidates were found eligible. The interviews were held on 11.1998. The writ petitioner-appellant Shri R.K. Vyas (hereinafter to be referred to as “the writ petitioner”) was also called for interview. The Selection Committee recommended the name of one Shri Ram Kishore Sharma for appointment on the post of Registrar in the appellant University. The name of the writ petitioner was kept in the reserve list. 3. Therecommendations of the Selection Committee dated 11.1998 were placed before the Board of Management for approval. The Board of Management, in its meeting held on 11.1998, approved and recommended the name of Shri Ram Kishore Sharma for appointment on the post of the Registrar and Shri Sharma was accordingly appointed as the Registrar of the appellant University, vide order dated 11.1998. 4. Subsequently, Shri Ram Kishore Sharma retired from services on 28.2.1999 on attaining the age of superannuation, as such, the post of the Registrar fell vacant. However, one day prior to the retirement of Shri Ram Kishore Sharma, the then Vice Chancellor, exercising his powers under Section 19(3) and (4) of the University of Ajmer Act, 1987 (hereinafter to be referred to as ‘the Act’), appointed the writ petitioner Shri R.K. Vyas on the post of Registrar, vide order dated 27.2.1999. In the above letter of appointment, it was clearly mentioned that the writ petitioner has been appointed on the post of Registrar as per the recommendations of the Selection Committee dated 11.1998 and approved by the Board of Management in its meeting held on 11.1998. Among other terms and conditions, it was also mentioned in the letter of appointment that the appointment is temporary till further orders, subject to confirmation thereof from the Board of management. Among other terms and conditions, it was also mentioned in the letter of appointment that the appointment is temporary till further orders, subject to confirmation thereof from the Board of management. The writ petitioner was to be placed on probation for one year only after the appointment order being confirmed by the Board of Management. 5. Thereafter, the matter was placed before the Board of Management in its meeting dated 17.2000. Though, the Board of Management did not approve appointment of the writ petitioner Shri R.K. Vyas on the post of Registrar, however, constituted a Committee to enquire into the matter of appointment of the writ petitioner on the post of Registrar vide order dated 27.2.1999 by the Vice Chancellor. The Committee, so constituted, was to give its report on the points formulated by the Board of Management, which are reproduced hereasunder. “(a) Whether Shri R.K. Vyas was having necessary qualifications as per rules for appointment for the post of Registrar and whether minimum qualification was changed before initiating the, selection process? .(b) Whether appointment of Shri R.K. Vyas, from reserved list was in accordance with the Judgment of the Hon’ble Supreme Court and the extent orders of the State Government? .(c) Shri Sita Ram Chauhan, Principal, Government College, Ajmer (retired) and the other members of the Board of Management, MDS University made a public statement that when recommendations of the Selection Committee were placed before the Board of Management, the reserved list was not before it. This fact may be enquired.” 6. The Board of Management also decided that the writ petitioner shall continue as temporary Registrar of the appellant University till further decision. 7. Ashas come on record, the Committee constituted by the Board of Management, to enquire into the appointment of the writ petitioner as Registrar, for one reason or the other, could not function and, as such, the Vice Chancellor of the appellant University made a reference, under Section 19(4) read with Section 8(2) of the Act, to the Chancellor -His Excellency the Governor of Rajasthan, vide letter dated 12.2000. On consideration of the reference made by the Vide Chancellor, the Chancellor conveyed, his opinion that the reserve list in the present case had not been approved by the Board of Management and further since there existed no circumstances war-ranting application of Section 19(4) of the Act and that with the termination of selection process upon appointment of Shri R.K. Sharma, reserve list could not have b’een acted upon, therefore, the appointment of the writ petitioner Shri R.K. Vyas from the reserve list was illegal. The Chancellor directed the Vice Chancellor of the appellant University to withdraw the appointment of the writ petitioner Shri R.K. Vyas as Registrar in accordance with law. 8. Consequently, a notice was issued to the writ petitioner on 11.200 1 to show cause as to why his appointment order dated 27.2.1999 be not cancelled forthwith. The writ petitioner while submitting his reply to the show cause notice before the concerned authorities, also filed a writ petition before this Court on 17.1.200 1 itself , challenging the above show cause notice dt.11.2001 and also making some additional prayers. The prayers made in the writ petition are reproduced here as under:- “(i) by an appropriate writ, order or direction, the impugned show cause notice dt.11.2001 may kindly be quashed and set aside and the respondents may kindly be restrained from again initiating the process of cancelling the appointment of the petitioner as Registrar. (ii) By further appropriate writ, order or direction, the appointment order of the petitioner to the post of Registrar, MDS University, Ajmer dated 27.2.1999 may kindly be declared as legal and valid and the respondents be directed to confirm the petitioner by counting the probation period of one year from 27.2.1999 after deleting/modifying clause No. (1) land (2) of the appointment order of the petitioner. (iii) Alternatively it is submitted that the petitioner be allowed to continue on the post of Registrar till the report of the committee by the Board of Management vide its Resolution dated 17.2000 is received and final decision is taken by the Board of Management. .(iv) any other or further, impugned order is passed by the respondents during the pendency of the writ petitioner, prejudicial to the rights of the petitioner, may also kindly be taken on record and be quashed and set aside. .(iv) any other or further, impugned order is passed by the respondents during the pendency of the writ petitioner, prejudicial to the rights of the petitioner, may also kindly be taken on record and be quashed and set aside. .(v) Or any other appropriate relief may kindly be granted to the petitioner which this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.” 9. Since the counsel for the appellant University had already put up appearance before the learned Single Judge, the writ petition filed by the petitioner; S.B. Civil Writ Petition No. 252/2001, was listed before the learned Single Judge on 21.2001 and again on 21.2001 when the arguments were heard and concluded and order was reserved. 10. Thelearned Single Judge, vide order dated 12.2001, while allowing the writ petition, quashed the impugned show cause notice dated 11.2001. A liberty was further given to the Vide Chancellor to ask the Board of Management to reconsider its decision. Hence, the present appeals, one filed by the appellant University challenging the order of the learned Single Judge & Anr. by the writ petitioner Shri R.K. Vyas, to he extent of certain observations made by the learned Single Judge causing prejudice to the writ petitioner. 11. Mr. R.N. Mathur, learned counsel appearing on behalf of the appellant University, contended that the whole selection process for appointment on the post of Registrar of the appellant University was over, the moment the duly selected candidate Shri Ram Kishore Sharma was appointed on the said post vide order dated 11.1998. It has further been contended that since the reserve list was not approved by the Board of Management, there was no occasion for the then Vice Chancellor to appoint the writ petitioner on the post of Registrar from the reserve list, which had even otherwise lapsed with the appointment of Shri Ram Kishore Sharma. 12. Mr. It has further been contended that since the reserve list was not approved by the Board of Management, there was no occasion for the then Vice Chancellor to appoint the writ petitioner on the post of Registrar from the reserve list, which had even otherwise lapsed with the appointment of Shri Ram Kishore Sharma. 12. Mr. Mathur has also contended that the Board of Management even did not approve the temporary appointment of Shri R.K. Vyas, writ petitioner, and, as a matter of fact, questioned the validity of the appointment of the writ petitioner on the post of Registrar on temporary basis itself The Committee was constituted to enquire into the matter of appointment itself and since a situation had so arisen in which the administration of the University could not run smoothly, the Vide Chancellor made a reference to the Chancellor- His Excellency the Governor of Rajasthan, for further guidance and directions. It was only after the directions issued by the Hon’ble Chancellor that a show cause notice was issued to the writ petitioner as to why his appointment as Registrar may not be cancelled. An objection in regard to the maintainability of the writ petition challenging the show cause notice has also been raised. 13. Mr. P.S. Asopa, Sr. Advocate, appearing on behalf of the writ petitioner Shri R.K. Vyas, on the other hand, contended that the writ petitioner was duly qualified and selected tor the post of Registrar by the Selection Committee and his name finds place in the reserve list which was duly approved by the Board of Management. Since the vacancy occurred due to the retirement of Shri Ram Kishore Sharma, the Vice Chancellor appointed the writ petitioner on the post of Registrar strictly in accordance with the relevant Rules and previous of the Act. It has further been contended by Mr. Asopa that the Board of Management had already constituted a Committee in regard to the appointment ot the writ petitioner on the post of Registrar, as such, there was no occasion for the Vice Chancellor to make a reference to the Chancellor, as the final decision had yet not been taken by the Board of Management. Mr. Asopa also contended that the appointment of the writ petitioner on the post of Registrar should be treated as regular appointment after due selection. 14. Mr. Asopa also contended that the appointment of the writ petitioner on the post of Registrar should be treated as regular appointment after due selection. 14. After having considered the submissions made by learned counsel for the parties, we have carefully gone through the entire material on record and also the relevant provisions of the Act. 15. The powers of the Chancellor and the Vide Chancellor of the University have been defined under the Act of 1987. The relevant provisions of Section 8 and Section 19 of the Act are reproduced here as under:-“8. Chancellor- .(1) The Governor of the State shall be the ex-officio Chancellor of the University. .(2) TheChancellor may given any direction, take any action and do anything as may be necessary under the provisions of this Act and the Statutes. 19. ViceChancellor. (1) The Vice Chancellor shall be a whole-time paid officer of the University and shall be appointed by the Chancellor in such manner for such a period and on such terms and conditions as may be prescribed. .(2) Notwithstanding anything contained in Sub-section (1), the first Vide Chancellor of the University shall be appointed by the Chancellor after consultation with Government for a period not exceeding three years on such terms and conditions as the Chancellor may determine. .(3) The Vice-Chancellor shall be the principal academic, administrative and executive officer of the University and shall exercise overall supervision and control over that affairs of the University. He shall have all such powers as may be necessary for true observance of the provisions of this Act and Statutes. .(4) TheVice-Chancellor shall, where immediate action is called for, have power to make an order so as to exercise any power or perform any function which is exercised or performed by any Authority under this Act or the Statutes Provided that such action shall be reported to the Authority as would have in the ordinary course dealt with the matter for approval: Provided further that if the action so reported is not approved by such Authority not being the Board of Management, the matter shall be referred to the Board of Management, whose decision shall be final and in case of the Authority being the Board of Management, the matter shall be referred to the Chancellor whose decision shall be final. .(5) TheVice-Chancellor may, on being satisfied that any action taken or order made by any Authority is not in the interest of the University or beyond the powers of such Authority, require the Authority to review its action or order. In case the Authority retuses or fails to review its action or order within sixty days of the date on which the Vice-Chancellor has so required, the matter may be referred to the Board of Management or to the Chancellor, as the case may be, for final decision.” 16. As has come on record, the Board of Management, in its meeting held on 11.1998, approved and recommended the name of Shri Ram Kishore Sharma for appointment on the post of Registrar. From a bare perusal of the Resolution made by the Board of Management it is clear that only the appointment of Shri Ram Kishore Sharma on the post of Registrar was approved. There is no mention of approval of the reserve list in the above resolution. Thus, the writ petitioner could not have been given appointment on the post of Registrar on the basis of his name appearing in the reserve list. The date of retirement of Shri Ram Kishore Sharma was known to the authorities concerned, as such, the Board of Management could have recommended that after the retirement of Shri Ram Kishore Sharma on 28.2.1999, writ petitioner Shri R.K. Vyas, whose name appears in the reserve list, should be appointed on the post of Registrar. The only inference which can be taken, in the facts and circumstances of the present case, is that the reserve list, though not approved by the Board of Management, stood lapsed the moment Shri Ram Kishore Sharma has been appointed on the post of Registrar on 11.1998 in absence of any statutory provision for life of reserve list. The post falling vacant on the retirement of Shri Ram Kishore Sharma could be filled in only by way of fresh regular selection. Under the circumstances, in our opinion, the then Vice-Chancellor was not competent to appoint the writ petitioner Shri R.K. Vyas on the post of Registrar exercising his power under Section 19(3) & (4) of the Act of 1987. 17. Under the circumstances, in our opinion, the then Vice-Chancellor was not competent to appoint the writ petitioner Shri R.K. Vyas on the post of Registrar exercising his power under Section 19(3) & (4) of the Act of 1987. 17. Be that as it may, even the action taken by the Vice-Chancellor under Section 19(3) and (4) of the Act has to be approved by the Board of Management or the Chancellor, as the case may be. In the present case, the matter had been placed before the Board of Management, which, instead of approving or disapproving the action of the Vice Chancellor in giving appointment to the writ petitioner on the post of Registrar, constituted a Committee to require the matter of appointment of the writ petitioner as Registrar itself The Committee, so constituted by the Board of Management, could not function for one reason or the other. Under the compelling circumstances, in our opinion, the Vide Chancellor was justified and within his competence to refer the matter to the Chancellor for his final decision. We find no impropriety or illegality in the action taken by the Vice Chancellor. 18. Section 8 of the Act has already been quoted above and the powers of the Chancellor cannot be disputed. In the present case, the Chancellor - His Excellency the Governor of Rajasthan, after considering the entire matter, has been of the opinion and rightly so that the appointment given to the writ petitioner Shri R.K. Vyas on the post ot Registrar was not proper and in accordance with law and the same is liable to be cancelled after following due process of law. It was only after directions issued by the Chancellor that the impugned show cause notice has been issued to the writ petitioner. In the peculiar facts and circumstances of the present case, in our opinion, once having held that the writ petitioner could not have been given appointment on the post of Registrar on regular basis from the reserve list and further no mala-fides been inferred, the learned Single Judge was not justified in quashing the impugned show cause notice issued to the writ petitioner. Once the appointment itself was not regular and in accordance with law, the writ petitioner has no right to continue on the post ot Registrar. 19. Once the appointment itself was not regular and in accordance with law, the writ petitioner has no right to continue on the post ot Registrar. 19. Accordingly, the appeal filed by the appellant University; DB Civil Special Appeal No. 115/2001 is allowed and the order of the learned Single Judge dated 12.2001 is quashed and set aside. The special appeal; D.B. Civil Special Appeal No. 194/2001 as also the Writ Petition No. 252/2001 flIed by the writ petitioner Shri R.K. Vyas are dismissed. However, in the interest of justice, as the administration of the appellant University would be affected, we direct the appellant University to initiate the process of selection to the post of Registrar and complete the same within four months from the date of receipt of certified copy of this Judgment . The writ petitioner Shri R.K. Vyas may also participate in the process of selection to the post ot Registrar. Till process of selection is completed and regular appointment to the post of Registrar is made, the appellant University shall be free to make necessary ad-hoc arrangement for running the administration in accordance with law.