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2014 DIGILAW 26 (MEG)

Harwant Singh Chhabra v. Union Of India

2014-03-04

T.NANDAKUMAR SINGH

body2014
ORDER : T. Nandakumar Singh, J. 1. Heard Mr. R. Jha, learned counsel for the petitioner and Mr. H.S. Thangkhiew, learned senior counsel assisted by Mr. N. Mozika, learned counsel for the respondent Nos. 2 & 3. Mr. H.S. Thangkhiew, learned senior counsel strenuously contended that the interpretation of Para. 10 of the "Rajiv Gandhi Indian Institute of Management, Shillong Memorandum of Association and Rules" is required in the present writ petition inasmuch as, this Court is required to decide as to whether the respondent No. 3 was duly authorized to function as Director of the Institute at the time of issuing the impugned order dated 12.10.2012. Since the interpretation of the said para is required in the present writ petition, para. 10 of the Memorandum of Association and Rules is quoted hereunder:-- DIRECTOR Appointment and terms of the Appointment (a) The appointment to the post of Director shall be made according to such procedures and on such terms and conditions as may be decided by the Central Government. Casual Vacancy (b) In the event of the post of Director remaining vacant for any reason it shall be open to the Board to authorize any ex officio member or senior officer of the Institute with the prior approval of Central Government to exercise such powers, functions and duties of the Director as the Board may deem fit, till a Director is duly appointed. 2. The succinct facts sufficient for deciding the issue in the present writ petition is noted. The writ petitioner was appointed as visiting Professor, on contract basis, of the Institution for a period of two years w.e.f. 31.12.2011 to 30.12.2013 subject to the conditions that the contract may be terminated by one month's notice from either side under the appointment letter i.e. order for extension of the terms of contract appointment dated 26.12.2011 issued by the Director of Rajiv Gandhi Indian Institute of Management (for short 'RGIIM'), Shillong. By the impugned letter/order issued by the respondent No. 3 Prof. Keya Sengupta being No. RGIIM/Admn/Per.File/Faculty/30/2012/858 dated 12.10.2012, the petitioner had been informed that his service as visiting Professor at the Institution are not required and his appointment as visiting Professor on contract basis is terminated with immediate effect, and that a Demand Draft No. 335068 dated 12.10.2012 for Rs. By the impugned letter/order issued by the respondent No. 3 Prof. Keya Sengupta being No. RGIIM/Admn/Per.File/Faculty/30/2012/858 dated 12.10.2012, the petitioner had been informed that his service as visiting Professor at the Institution are not required and his appointment as visiting Professor on contract basis is terminated with immediate effect, and that a Demand Draft No. 335068 dated 12.10.2012 for Rs. 1,40,000.00 (Rupees one lakh forty thousand) only on account of 12 days salary for the month of October, 2012 as well as one month salary in lieu of notice period is enclosed. 3. On plain perusal of the appointment letter dated 26.12.2011 issued by the Director RGIIM, Shillong, it is clear that the petitioner had been appointed as visiting Professor on contract basis for the Institution for a period of two years w.e.f. 31.12.2011 to 30.12.2013 subject to the conditions that the contract may be terminated by one month's notice from either side. Therefore, the service of the petitioner as visiting Professor on contract basis under the said appointment letter could be terminated by one month's notice from either side. By the impugned letter dated 12.10.2012 issued by the respondent No. 3, the service of the petitioner as Professor on contract basis had been terminated under the terms and conditions mentioned in the said appointment letter dated 26.12.2011 by paying one month salary in lieu of one month's notice. The question calls for consideration in the present writ petition is as to whether the respondent No. 3 was competent to issue the termination letter dated 12.10.2012? 4. From the facts admitted by both the parties, it is clear that the Board of Governor in its XXVI meeting held on 31.10.2012 in the Conference Room of MHRD, Shastri Bhavan, New Delhi, had passed the Resolution No. 26.01 that in conformity with the directions of the Ministry of HRD, the respondent No. 3 can exercise full powers of a regular Director till further directions to the contrary are received from the Ministry of HRD. For easy reference, Resolution No. 26.01 is quoted here-under:- 26.01: Additional Charge for the post of Director to Prof. Keya Sengupta The Chairman welcomed Prof. Keya Sengupta, as the incharge Director of the Institute and directed that in conformity with the directions of the Min. of HRD, she could exercise the full powers of a regular Director until further directions to the contrary are received from the Min. Keya Sengupta The Chairman welcomed Prof. Keya Sengupta, as the incharge Director of the Institute and directed that in conformity with the directions of the Min. of HRD, she could exercise the full powers of a regular Director until further directions to the contrary are received from the Min. HRD. 5. In the normal service law parlance of the land, the service of the person holding the civil post under the Union or State shall not be dismissed or removed by an authority subordinate to that by which he was appointed. We may profitably refer to Article 311 of the Constitution of India and accordingly, for convenience Article 311(1) of the Constitution of India is quoted hereunder:-- 311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.-- (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. 6. Indian democracy is a constitutional democracy and the constitution is the fountain head of the law. There cannot be any law contradictory to the Constitution of India. Therefore, any provision of the Memorandum of the Association and Rules of RGIIM, Shillong which is contrary to Article 311 of the Constitution of India is ultra vires. Para. 10(b) which had been quoted above in extenso dealt with the casual vacancy in the post of Director. Under that provision of the Memorandum of Association and Rule, in the event of vacancy in the post of Director, it shall be open to the Board to authorize any ex officio member or senior officer of the Institute with the prior approval of the Central Govt. to exercise such powers, functions and duties of the Director as the Board may deem fit, till a Director is duly appointed. Therefore, from the said Para. 10(b) of the Memorandum of Association and Rules, it is crystal clear that any ex officio member or senior officer of the Institute may be allowed to exercise such powers, functions and duties of the Director by the Board only with the prior approval of the Central Govt. 7. In the affidavit-in-opposition filed by the respondent Nos. 10(b) of the Memorandum of Association and Rules, it is crystal clear that any ex officio member or senior officer of the Institute may be allowed to exercise such powers, functions and duties of the Director by the Board only with the prior approval of the Central Govt. 7. In the affidavit-in-opposition filed by the respondent Nos. 2 & 3, there is not even a whisper that the respondent No. 3 was allowed to exercise the powers, functions and duties of the Director by the Board with the approval of the Central Govt. prior to the date of issuing the impugned letter dated 12.10.2012. However, it is also clear from the affidavit filed by the respondent Nos. 2 & 3, that the Board of Governors in its XXVI meeting held on 31.10.2012 had allowed the respondent No. 3 to exercise full powers of a regular Director until further directions to the contrary are received on the Ministry of HRD vide Resolution No. 26.01 which had been quoted above in extenso. On plain perusal of the said Resolution, it is again crystal clear that the said Resolution has no retrospective effect. Therefore, the said Resolution No. 26.01 will be effective from the date of passing the Resolution i.e. 31.10.2012. It goes without saying that the Order/Resolution will have the prospective effect provided there is no indication in the Order or Resolution that it will have the retrospective effect. Facts considered above, clearly depict that the respondent No. 3 cannot functions as a Director in-charge or cannot exercise the powers, functions and duties of the Director at the time of passing the impugned letter dated 12.10.2012. 8. For the sake of repetition, it is reiterated that there is no provision in the Memorandum of Association and Rules of the Institution (RGIIM, Shillong) for filling up casual vacancy in the post of Director except para. 10(b) of the Memorandum of Association and Rules which had been quoted above. It is well-settled law that the Constitutional authority cannot do indirectly what is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the Constitutional provisions. (Ref: Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, AIR 1987 SC 579 ). 9. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the Constitutional provisions. (Ref: Dr D.C. Wadhwa and Others Vs. State of Bihar and Others, AIR 1987 SC 579 ). 9. It is well-settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one provided will be violative of the fundamental principles of natural justice. (Ref: Hukam Chand Shyam Lal Vs. Union of India (UOI) and Others) AIR 1976 SC 789 . 10. The Constitution Bench in S.G. Jaisinghani Vs. Union of India (UOI) and Others, AIR 1967 SC 1427 held that the absence of arbitrary power is the first essential of the rule of law upon which our whole judicial system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be continued within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know here he is. 11. Mr. H.S. Thangkhiew, learned senior counsel appearing for the respondent Nos. 2 & 3 also contended that there was no Chairman of the Board in the months of August, September, October, November and December, 2012 and therefore, it may not be possible to resort para. 10(b) of the Memorandum of Association and Rules for filling up the casual vacancy in the post of Director. The submission of learned senior counsel appeared to be very impressive at the outset but on deeper consideration, it cannot be accepted inasmuch as mere absence or mere vacancy in the post of Chairman will not mean that there was no Board of Governors of the Institution. 12. Mr. R. Jha, learned counsel appearing for the petitioner very frankly submitted that the petitioner had joined as Professor in NIT, Agartala, Tripura in the end of February, 2013. 13. 12. Mr. R. Jha, learned counsel appearing for the petitioner very frankly submitted that the petitioner had joined as Professor in NIT, Agartala, Tripura in the end of February, 2013. 13. For the foregoing discussion, this Court is of the considered view that the impugned letter dated 12.10.2012 is illegal inasmuch as, the respondent No. 3 for the reasons discussed above, had no power to issue the impugned letter dated 12.10.2012 as in-charge Director of the Institution. The cumulative effect of coming to the conclusion that the impugned letter dated 12.10.2012 is illegal would be that the petitioner will get the salary as visiting Professor from October, 2012 till he joined the post of Professor in NIT, Agartala, Tripura in the end of February, 2013. Had the petitioner not been joined, as a Professor in NIT, Agartala, Tripura in the month of February, 2013, the respondents would have to pay the salary for the whole contract i.e. 31.12.2011 to 30.12.2013 for the simple reason, the impugned letter dated 12.10.2012 is illegal. Accordingly, this writ petition is disposed of with a direction that RGIIM, Shillong/the respondent No. 2 has to pay the salary of the petitioner from 12.10.2012 to 12.02.2013 minus one month salary already paid in lieu of one month's notice within a period of 2(two) months from the date of receipt of a certified copy of this judgment and order.