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Madhya Pradesh High Court · body

2016 DIGILAW 458 (MP)

Santosh Kumar v. Hari Singh Gaur Vishwavidyalaya

2016-06-16

SUJOY PAUL

body2016
ORDER : 1. The petitioner has filed this petition under Article 226 of the Constitution of India against the action of the respondents whereby he was deprived to join on the post of First Finance Officer as per the appointment order dated 20.6.2012 (Annexure P-1). 2. Brief facts necessary for adjudication of this matter are that the petitioner was appointed by order dated 20.6.2012 (Annexure P-1) on the post of First Finance officer. The appointment was made for a period of three years. 3. The petitioner upon receipt of appointment order, sent an e-mail dated 27.6.2012. The petitioner by communication dated 3.7.2012 (Annexure P-3) informed the respondent/University that since he was employed with Central University of Rajasthan, he would first resign from the said post and then submit his joining before the respondent/University. The petitioner further informed that he is required to send a notice of three months for the purpose of resignation. The respondent/University by letter dated 29.9.2012 (Annexure P-4) informed the petitioner that he is required to bring last pay certificate and relieving order of Central University of Rajasthan. The petitioner submitted his resignation to the Central University of Rajasthan on 28.9.2012 requesting the said University to relieve him on 16.10.2012 to enable him to join Sagar University on 17.10.2012. The resignation letter and certificate issued by Central University of Rajasthan are cumulatively filed as Annexure P-5. Thus, the petitioner was relieved on 16.10.2012. 4. Shri Sanjay Agrawal, learned counsel for the petitioner contends that vide e-mail dated 8.10.2012, petitioner requested the respondent/university to extend the date of joining up to 17.10.2012 in view of 'pitra paksha'. The petitioner also informed about his aforesaid resignation tendered to Central University of Rajasthan. The communication dated 8.10.2012 is filed vide Annexure P-6. 5. The respondents through e-mail dated 11.10.2012 informed the petitioner that his request for extension of date of joining has been accepted and he may join the University on 17.10.2012. This communication is Annexure P-7. 6. Shri Agrawal submits that petitioner submitted his joining at Sagar before the respondent/university on 17.10.2012. To petitioner's utter surprise, respondent/University did not allow him to join on 17.10.2012. The petitioner accordingly sent the communication and desired certain in-formations on 22.9.2013. The respondent by letter dated 12.11.2013 replied to the said application of the petitioner and admitted that petitioner personally visited the University on 17.10.2012. 7. To petitioner's utter surprise, respondent/University did not allow him to join on 17.10.2012. The petitioner accordingly sent the communication and desired certain in-formations on 22.9.2013. The respondent by letter dated 12.11.2013 replied to the said application of the petitioner and admitted that petitioner personally visited the University on 17.10.2012. 7. Heavy reliance is placed by petitioner on letter dated 12.11.2013. It is urged that the petitioner's appeal dated 4.11.2013 (Annexure P-11) could not fetch any result. The petitioner's appointment was cancelled on 25.3.2013 on the basis of his alleged non-joining on the said post. The bone of contention of Shri Agrawal is that the petitioner, in order to get the fruits of his appointment order, resigned from his erstwhile service in Central University of Rajasthan and he was permitted to submit joining at the Sagar University on 17.10.2012. He appeared and submitted his joining before the respondent/ University on the said date but he was not permitted to resume and therefore, the action of the respondents be declared as illegal and petition may be allowed. 8. Smt. Shobha Menon, learned Senior Counsel for the respondents opposed the same. She submits that as per Clause 44 of the relevant statute, the First Finance Officer needs to be appointed by visitor and such officer shall hold the office for a period of 3 years. The period of three years from 20.6.2012 is already over in June, 2015, hence no relief can be granted to the petitioner. She submits that if petitioner is aggrieved by impugned orders/action, the proper remedy is to file a suit for damages. She further submits that during pendency of this case, fresh recruitment process for the said post was started but said process has not been abandoned till date. No other point is pressed by learned counsel for the parties. 9. I have heard learned counsel for the parties and perused the record. 10. Clause-44 (b) of the notification which is handed over to this Court during the course of arguments by Mrs. Menon reads as under:- "44 (b) the first Registrar and the first Finance Officer shall be appointed by the Visitor and each of the said officers shall hold office for a term of three years." (Emphasis supplied) 11. A plain reading of this provision makes it clear that appointment on the post of First Finance Officer was a fixed term appointment. A plain reading of this provision makes it clear that appointment on the post of First Finance Officer was a fixed term appointment. However, the said clause does not indicate that it is a contractual appointment. In cases of contractual appointments, it was held that if termination of contract of employment is found to be illegal or in breach of contract, the remedy of employee is only to seek damages and not specific performance. The Courts will neither declare such termination as a nullity nor declare that the contract of employment subsists nor grant consequential relief of reinstatement. The Apex Court in 2008 (8) SCC 92 (S.B.I. and others v. S.N. Goyal) while holding aforesaid, opined that there are three exceptions to this rule namely (i) where a civil servant is removed from service in contravention of the provisions of Article 311 of the Constitution of India (or any law made under Article 309); (ii) where a workman having the protection of the Industrial Disputes Act, 1947 is wrongly terminated from service; and (iii) where an employee of a statutory body is terminated from service in breach or violation of any mandatory provision of a statute or statutory rules. It was further held that to decide the nature of relief to be given, it is necessary to examine whether the employment is governed by contract or by a statute or by statutory rules. As noticed, in the present case, the employment in question was not contractual in nature. It was governed by the statute and is a fixed term/tenure appointment. In this view of the matter, the petitioner cannot be relegated to file suit for damages etc. 12. The petitioner has successfully established that pursuant to issuance of appointment order dated 20-06-2012, he submitted a request for extension of time for his joining to the post in question. The same was accepted by communication dated 11-10-2012 (Annexure P/7). The petitioner's request for permitting him to join the respondent-University on 17-10-2012 was accepted. The petitioner has categorically pleaded that he submitted his joining before the respondent-University on 17- 10-2012 vide Annexure P/8 but was not permitted to assume charge. The petitioner has specifically pleaded about this in Para 5.9 and 5.10 of the petition. The respondents have not chosen to file para wise reply and did not refute the same in their return. The petitioner has categorically pleaded that he submitted his joining before the respondent-University on 17- 10-2012 vide Annexure P/8 but was not permitted to assume charge. The petitioner has specifically pleaded about this in Para 5.9 and 5.10 of the petition. The respondents have not chosen to file para wise reply and did not refute the same in their return. In addition, the petitioner filed Annexure P/9 to establish that an information was sought by him under the R.T.I. Act, 2005 regarding his submission of joining on 17-10-2012. The information sought for in Clause-d of Annexure P/9 is important. The information was furnished by Annexure P/10 dated 12-11-2013. It was accepted by the respondent-University that petitioner's visit on 17-10-2012 was personal and University has not maintained any record. 13. I find force in the arguments of Shri Agrawal that the petitioner had all intentions to resume at Sagar on 17-10-2012. For this purpose, he resigned from his erstwhile employment in Central University Rajasthan and obtained permission to join respondent-University on 17-10-2012. Once he submitted his joining pursuant to permission granted by University by communication (Annexure P/7), by no stretch of imagination, his such visit can be treated as "Personal Visit" or visit for any other purpose. 14. In the opinion of this Court, the petitioner has clearly established that he submitted his joining on 17-10-2012. Thus, there is no disputed question of fact in the present case about submission of his joining on 17-10-2012. Thus, I am not inclined to relegate the petitioner to avail the remedy of civil suit etc. The only question now remains is as to what relief can be granted to the petitioner. Mrs. Menon, learned Senior Counsel contended that the term of appointment (three years) is over in June, 2015, hence the question of reinstatement of the petitioner does not arise. I find force in the said contention. In 2009 (16) SCC 385 (Reji Kumar and others v. Director of Health Services, Kerala and others), it was held that currency of fixed term appointment comes to an end after expiry of fixed period and there would be no relationship of Master and Servant thereafter, until the relationship is continued by a fresh letter of appointment, or by intervention of any court's order. In the present case, no fresh letter of appointment is issued nor court passed any interim order for continuance of employment beyond the period of said three years. Hence, the question of reinstatement of petitioner does not arise. It is apt to mention here that cancellation of appointment of the petitioner by communication dated 25-03-2013 (Annexure P/13) cannot sustain judicial scrutiny. Once it is held that the petitioner submitted his joining on 17-10-2012 and the respondents did not permit him to join, the question of cancellation of his appointment on the ground of not joining by petitioner on the said post does not arise. Thus, the order (Annexure P/13) must be axed. 15. As discussed above, the cancellation of appointment by the respondent is capricious and arbitrary in nature. In 1965 (3) SCR 536 (Dwarkanath v. ITO), the Apex Court considered ambit and scope of Article 226 of the Constitution. It was held that the article is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Court can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the relief to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself. Such a construction defeats the purpose of the article itself. This judgment is followed by Supreme Court in 1989 (2) SCC 691 , Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others. The Apex Court held that Article 226 confers power on the High Court to issue writs for enforcement of fundamental right as well as non-fundamental right (Para 20). 16. In view of aforesaid legal position, it is clear that if injustice caused to the petitioner is manifest, the court is not powerless and it can grant relief by moulding the same. In my view, the petitioner was all along willing to join the post in question and submitted his joining on 17-10-2012. The respondents did not permit him to join, therefore principles of 'no work no pay' has not application. In other words, the petitioner was all along willing to perform his duties but was deprived to do so because of the reasons solely attributable to the respondents. Thus, the petitioner is entitled to get the compensation equal to the amount of salary for the period he submitted joining i.e. 17-10-2012 till the completion of three years term of appointment i.e. 20-06-2015. [See 2003 (4) SCC 21 (Sri Justice S.K. Ray v. State of Orissa and others)] At the cost of repetition, in my view, denial of this relief to the petitioner will amount to grave injustice to him because for joining this post at Sagar he resigned from his erstwhile employment. It is relevant to mention here that in 2000 (3) SCC 699 (State of U.P. v. Ram Swarup Saroj), the Apex Court held that the claim of a candidate included in the select panel was not defeated because of currency of panel expired during pendency of litigation when the candidate had staked his claim during currency of panel. The case of present petitioner is on a better footing about defeat of claim because an appointment order Annexure P/1 was already issued (which is on a higher pedestal than mere inclusion of name in the select list) and the petitioner has filed present petition before completion of term of appointment. 17. As analysed above, the action of the respondents in not permitting the petitioner to join on the post of First Finance Officer is illegal. Consequently, the cancellation of appointment order dated 25-03-2013 is set aside. 17. As analysed above, the action of the respondents in not permitting the petitioner to join on the post of First Finance Officer is illegal. Consequently, the cancellation of appointment order dated 25-03-2013 is set aside. The respondents shall pay the amount of compensation equal to the salary of the post of First Finance Officer to the petitioner for the period between 17- 10-2012 to 20-06-2015. The aforesaid amount be paid to the petitioner within two months from the date of communication of this order. Since, the action of the respondents is arbitrary in nature and they compelled the petitioner to file this avoidable litigation, I deem it apposite to inflict Rs. 10,000/- as a cost which shall be paid to the petitioner within aforesaid time. 18. The petition is allowed to the extent indicated above.