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Madhya Pradesh High Court · body

2014 DIGILAW 654 (MP)

Ashish Kumar v. Jiwaji University

2014-06-17

ROHIT ARYA

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Judgment: 1. This writ petition is by a self-styled social activist seeking quashment of order dated 7-8-2012 (Annexure P-1), whereby respondent No. 2 has been appointed as Professor under Career Advancement Scheme, amendment order dated 9-8-2012 (Annexure P-2) passed by respondent No. 1-Jiwaji University, Gwalior, whereby date of promotion of respondent No. 2 is shown as 1-1-2009 and also the order of initial appointment of respondent No. 2 as Lecturer in Commerce stream and sought an enquiry by Judicial Officer against the University, who according to the petitioner has made illegal appointment of respondent No. 2. Upon perusal of the writ petition, it is found that petitioner is not in teaching profession either in any educational institution, college or any university much less Jiwaji University, Gwalior. Neither he possesses qualifications nor eligibility for appointment as Professor. As such, petitioner cannot be said to be an aggrieved person for the purpose of seeking the relief of quashment of aforesaid orders. On this premise only, petition deserves dismissal. 2. Even otherwise, even if this writ petition is treated as the one seeking writ of quo warranto against respondent No. 1, the entire petition does not reveal as to which provision of statutory rules has been violated in the matter of appointment of respondent No. 2 as Professor under the Career Advancement Scheme. 3. In the case of The University of Mysore and another v. C.D. Govinda Rao and another, AIR 1965 SC 491 , Justice Gajendragadkar (as His Lordship then was) speaking for the Court has successfully laid down the nature and scope of writ of quo warranto. Relevant excerpt of Para 7 reads as under:-- (7).......Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it so that his title to, issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control the executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office, which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, then tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the conveyance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. In the same judgment, the Hon'ble Supreme Court has also laid down scope as regards interference in the matter of appointments made by the academic bodies/universities and held as under:-- (13) Before we part with these appeals, however, reference must be made to two other matters. In dealing with the case presented before it by the respondent, the High Court has criticised the report made by the Board and has observed that the circumstances disclosed by the report made it difficult for the High Court to treat the recommendations made by the experts with the respect that they generally deserve. We are unable to see the point of criticism of the High Court in such academic matters. Boards of appointments are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before Courts, normally the Courts should be slow to interfere with the opinions expressed by the experts. We are unable to see the point of criticism of the High Court in such academic matters. Boards of appointments are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before Courts, normally the Courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about malafides against the experts, who constituted the present Board; and so, we think, it would normally be wise and safe for the Courts to leave the decisions of academic matters to experts, who are more familiar with the problems they face than the Courts generally can be. The criticism made by the High Court against the report made by the Board seems to suggest that the High Court thought that the Board was in the position of an Executive Authority, issuing an executive fiat, or was acting like a quasi-judicial Tribunal, deciding disputes referred to it for its decisions. In dealing with complaints made by citizens in regard to appointments made by academic bodies, like the Universities, such an approach would not be reasonable or appropriate. In fact, in issuing the writ, the High Court has made certain observations, which show that the High Court applied tests, which would legitimately be applied in the case of writs of certiorari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration, which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinions expressed by the Board and its recommendations on which the Chancellor has acted. In this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that appellant No. 2 should be recommended for the post of Reader. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that appellant No. 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified. 4. In the case of High Court of Gujarat and another v. Gujarat Kishan Mazdoor Panchayat and others, : (2003) 4 SCC 712, three-Judge Bench has held as under:-- 22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors, which may be relevant for issuance of a writ of certiorari. 5. That apart, this petition at the instance of a person, who has not disclosed his credentials, status, interest and genuineness of intention for prosecuting the petition, in the opinion of this Court appears to be influenced by extraneous motivations for glare of publicity and possibly proxy for others. The Hon'ble Supreme Court in the case of Dr. B. Singh v. Union of India and others, (2004) 3 SCC 363 , has made observation to discourage such motivated pursuits in the Court of law. The relevant Para 14 thereof reads as under:-- 14. The Court has to be satisfied about:--(a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; and (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike a balance between two conflicting interests:--(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. Court has to strike a balance between two conflicting interests:--(i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the executive and the legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome inter-lopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of pro bono public, though they have no interest of the public or even of their own to protect. 6. During the course of hearing Shri Anil Sharma, Advocate for respondent No. 2, by referring to Ordinance No. 4 submitted qualification for the post of Lecturer is Master's Degree with at least 55% marks or its equivalent degree and good academic record. Good academic record is also defined in the said Ordinance, which provides that a candidate holding Ph.D. Degree should possess at least Second Class Master's Degree or without Ph.D. degree should possess High Class Master's Degree and a Second Class Master's Degree and as Second Class in Bachelor's Degree. Respondent No. 2 having passed Master's Degree (M.Com.) with 65% marks and Ph.D. was eligible for the post of Lecturer. In response to applications being invited by the University, respondent No. 2 was selected and appointed on the post of Lecturer in the pay scale of 2200-4000 on 14-10-1993. Respondent No. 2 was given senior scale w.e.f. 14-10-1997, vide order dated 15-1-2003 in terms of Para 8 of the order of the Higher Education Department (MP), whereunder it was provided that for upgradation in senior scale four years' service as Lecturer was required. Thereafter, on the recommendations of the Selection Committee constituted under Section 49 of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 respondent No. 2 was promoted as Reader in the pay scale of 12000-18300 under Career Advancement Scheme w.e.f. 14-10-2002, vide order dated 14-5-2004. Thereafter, on the recommendations of the Selection Committee constituted under Section 49 of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 respondent No. 2 was promoted as Reader in the pay scale of 12000-18300 under Career Advancement Scheme w.e.f. 14-10-2002, vide order dated 14-5-2004. Thereafter, on the recommendations of the Selection Committee constituted under Section 49 of the Act of 1973, following the revision of pay scales of Central Government employees on acceptance of recommendations of Sixth Pay Commission, respondent No. 2 since had completed three years' service in selection grade (12000-18300), he was placed in the pay scale of 37400-67000 with AGP of Rs. 9,000/- and redesignated as Associate Professor in terms of Clause 2(x) of the Scheme of revision of pay of teachers and equivalent cadres in universities and colleges following the revision of pay scales of Central Government employees on the recommendations of the Sixth Central Pay Commission vide order dated 15-9-2011 w.e.f. 1-1-2006. Thereafter, on the recommendations of the Selection Committee constituted under Section 49 of the Act of 1973, in terms of Clause 2(xiii) of the Scheme, upon completion of three years' of service as Associate Professor, respondent No. 2 was held entitled for appointment as Professor w.e.f. 1-1-2009 and accordingly, order to that effect was passed on 9-8-2012. The aforesaid order of promotion was passed consequent upon the direction issued by this Court in W.P. No. 4598/2011, vide order dated 20-7-2011. In view of the aforesaid settled legal position as regards scope of interference in the matter of issuance of writ of quo warranto and the submissions so made, this Court is of the opinion that the factual matrix as laid down in this petition does not warrant interference under Article 226 of the Constitution of India. Accordingly, the writ petition sans merits is hereby dismissed.