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Allahabad High Court · body

2017 DIGILAW 2014 (ALL)

Garima Singh v. State of Uttar Pradesh

2017-08-29

IFAQAT ALI KHAN, RAN VIJAI SINGH

body2017
JUDGMENT : We have heard Sri Ashok Khare, learned senior counsel assisted by Sri Arvind Kumar Pandey, learned counsel for the petitioner, learned standing counsel for the State - respondent, Sri Neeraj Tripathi, learned counsel for respondent no. 2, Sri Avneesh Tripathi, learned counsel for respondent nos. 3 and 4 and Sri Seemant Singh, learned counsel for respondent no. 5. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 14.8.2017 passed by the learned Chancellor, Chaudhary Charan Singh University and the consequential order dated 21.8.2017 passed by the Registrar, Chaudhary Charan Singh University, Meerut (hereinafter referred to as the 'University'). 3. Vide order dated 14.8.2017, the recommendation of the selection committee dated 4.2.2015 for appointment of the petitioner as Assistant Professor and the decision/approval of the executive council have been declared void by the learned Chancellor; whereas, by the consequential order dated 21.8.2017, the appointment and services of the petitioner on the post of Assistant Professor in Education Department of the University has been terminated by the Registrar of the University. 4. The facts of this case, in brief, are that pursuant to the advertisement dated 2.3.2014, the petitioner, herein, applied for the post of Assistant Professor in Education Department. The petitioner appeared in the interview along with other candidates and ultimately, she was selected by the selection committee and subsequently, her appointment was also approved by the Vice Chancellor of the University on 21.2.2015. Pursuant thereto, the petitioner started working as Assistant Professor in the Education Department of the University. 5. Learned counsel for the petitioner submitted that the petitioner was also confirmed on the post on 4.5.2016 after completion of the probation period. It appears, the respondent no. 5 (Sanjeev Kumar), who had also appeared in the interview along with the petitioner for the selection on the post of Assistant Professor in Education Department, filed a reference under section 68 of the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as, 'the Act') on 11.5.2016 challenging the selection of the petitioner on the said post. This reference was registered in the Secretariat of the Hon'ble Governor as Reference No. 50 of 2016. After registration of the reference, notices were issued to the University as well as to the petitioner. The University sent report on 5.9.2016, which was received in the Secretariat of the Hon'ble Governor on 14.9.2016. This reference was registered in the Secretariat of the Hon'ble Governor as Reference No. 50 of 2016. After registration of the reference, notices were issued to the University as well as to the petitioner. The University sent report on 5.9.2016, which was received in the Secretariat of the Hon'ble Governor on 14.9.2016. It was stated in the report that in the heads of 'domain knowledge' and 'teaching skills', 30 marks were to be awarded, i.e., for Teaching Skills and Project Handled 10 marks each, for Teaching Experience 5 marks and for professional development related activities, like refresher, orientation course, NSS, NCC, short term training/workshops, etc. 5 marks. Apart from that, another report was also sent on 23.11.2016 mentioning therein that in the case of respondent no. 5, earlier, 5 marks were awarded under the head of post doctoral research, but later on, it has been scored out, but it is not clear by whom and how. 6. The petitioner also filed her objection/reply on 1.8.2016 justifying her selection on the post of Assistant Professor Education by stating that she has secured more marks in different heads than the respondent no. 5 and that is why, she has been selected. Apart from defending the selection on merits, the petitioner also filed an objection with regard to the limitation stating therein that the reference itself is barred by time, therefore, it could not be entertained. 7. The learned Chancellor, after perusing the entire material, for and against, available on record, treated the reference to be within time and found that the selection of the petitioner to be illegal and dehors the procedure prescribed for holding the selection on the post of Assistant Professor. 8. While assailing the impugned orders, learned counsel for the petitioner contended that in view of the clause (a) of 1st proviso to section 68 of the Act, no reference under section 68 of the Act can be made after the lapse of three months from the date when the question could have been raised for the first time before the Chancellor. In his submissions, in this case, since the selection was made on 21.2.2015, therefore, the reference could be made only upto May, 2015; whereas, here the reference was filed almost after expiry of one year, i.e., on 11.5.2016; that too, without there being any application for condonation of delay or any prayer in the reference itself to condone the delay, therefore, the learned Chancellor has erred in treating the reference within time. Apart from the limitation, various other arguments have also been raised on merits. 9. Sri Neeraj Tripathi, learned counsel for respondent no. 2 submitted that the power of condonation of delay is unfettered in view of clause (a) of 2nd proviso to section 68 of the Act. In his submissions, the learned Chancellor can act suo motu and can entertain the reference even after the expiry of period mentioned in clause (a) of 1st proviso to section 68 of the Act. 10. Sri Seemant Singh, learned counsel for respondent no. 5 has also argued the case on the same footing on which Sri Tripathi has made his submissions. Apart from the limitation, Sri Singh and Sri Tripathi both have defended the order passed by the learned Chancellor by inviting the attention of this Court towards various irregularities committed by the selection committee, especially, relying upon the report which was submitted by the University later on after the notice received by it under section 68 of the Act. 11. However, after arguing sometime, learned counsel for the respondents have submitted that this writ petition may be decided on its own merits, as they do not intend to file any counter affidavits, to which learned counsel for the petitioner has no objection. Therefore, with the consent of the learned counsel for the representing parties, this Court proceeds to consider the first question, which has been raised by the learned counsel for the petitioner on limitation, as if this question is decided in affirmative, consideration of case on merits would not arise. 12. For deciding the issue raised by the learned counsel for the petitioner regarding limitation, it would be necessary to go through section 68 of the Act, which reads as under: "68. 12. For deciding the issue raised by the learned counsel for the petitioner regarding limitation, it would be necessary to go through section 68 of the Act, which reads as under: "68. Reference to the Chancellor.- If any question arises whether any person has been duly elected or appointed as, or is entitled to be, member of any authority or other body of the University, or whether any decision of any authority or officer of the University [including any question as to the validity of a Statute, Ordinance or Regulation, not being a Statute or Ordinance made or approved by the State Government or by the Chancellor)] is in conformity with this Act or the Statutes or the ordinance made thereunder, the matter shall be referred to the Chancellor and the decision of the Chancellor thereon shall be final : Provided that no reference under this section shall be made- (a) more than three months after the date when the question could have been raised for the first time; (b) by any person other than an authority or office of the University or a person aggrieved: Provided further that the Chancellor may in exceptional circumstances- (a) act suo motu or entertain a reference after the expiry of the period mentioned in the preceding proviso; (b) where the matter referred relates to a dispute about the election and the eligibility of the person so elected is in doubt, pass such orders of stay as he thinks just and expedient;" Here in this case, undisputedly, the selection of the petitioner was made on 21.2.2015, therefore, in view of clause (a) of 1st proviso to section 68 of the Act, the reference could be made only upto 20.5.2015; whereas, in this case, reference was filed on 11.5.2016. Undoubtedly, under clause (a) of 2nd proviso to section 68 of the Act, the learned Chancellor in a suo motu proceeding can decide the reference after expiry of the period mentioned in clause (a) of 1st proviso to section 68 of the Act, but there too, in our opinion, the learned Chancellor has to record reasons for treating the reference well within time; otherwise, the limitation provided under clause (a) of 1st proviso to section 68 of the Act would become redundant. So far as entertaining the reference on the instance of the third party is concerned, under the 2nd proviso to section 68 of the Act, there is a provision for entertaining the reference even after the expiry of the period mentioned in clause (a) of the 1st proviso to section 68 of the Act, but at least, there has to be a prayer for treating the reference well within time. 13. Sri Tripathi has submitted that the provisions contained under section 5 of the Limitation Act will not be applicable in the strict sense and the learned Chancellor, after recording the prima facie satisfaction, can treat the reference well within time and decide the case on merits. Section 5 of the Limitation Act, which is meant for extending the period of limitation, reads thus: "Section 5- Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 14. From the bare reading of the aforesaid section, it transpires that under the fitness of the circumstances and on satisfaction, the court/the authority concerned, has power to extend the period of limitation or to condone the delay in initiating the proceedings after prescribed period of limitation. 15. Order 41, rule 3A of Code of Civil Procedure provides that when an appeal is presented after the expiry of the period of limitation specified there for, it shall be accompanied by an application supported with affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period. It is also provided that the court concerned may reject the delay condonation application if it finds that the explanation furnished by the appellant is not satisfactory, but if the court intends to allow the delay condonation application, in that eventuality, notice has to be issued to the other side and only thereafter, delay can be condoned. 16. Here in this case, the provisions contained under section 5 of the Limitation Act or the provisions contained under Order 41, rule 3A of the Code of Civil Procedure may not be applicable in the strict sense, but the principle laid down therein has to be followed; otherwise, the purpose for providing the limitation by the Legislature would be frustrated. In this particular case, the respondent no. 5, being a well educated person and candidate, for selection on the post of Assistant Professor in Education, if he was filing reference under section 68 of the Act, then he ought to have cared to meet the rigour of limitation as provided in clause (a) of 1st proviso and clause (a) of 2nd proviso to section 68 of the Act, but here what we find and which has not been disputed by the learned counsel for respondent no. 5, is that neither there was any separate application supported with an affidavit stating the reasons for not filing the reference well within time, nor there was any prayer in the reference itself for condonation of delay giving details for not filing it well within time. The Hon'ble Apex Court in Noharlal Verma v. District Cooperative Central Bank Ltd. Jagdalpur (2008) 14 SCC 445 , V.M. Salgaocar and Bros. v. Board of Trustees of Port of Mormugao and another 2005 Volume 4 SCC 613, Ragho Singh v. Mohan Singh 2001 (9) SCC 717 and Sneh Gupta v. Devi Sarup and Others ( 2009 (6) SCC 194 ) has held that if a proceeding is initiated after expiry of period of limitation, it has to be dismissed, even though no such plea has been raised or defence has been set up. Further, the limitation goes to the root of the matter and if suit, appeal or application is barred by limitation, the court or adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits. Further, the limitation goes to the root of the matter and if suit, appeal or application is barred by limitation, the court or adjudicating authority has no jurisdiction, power or authority to entertain such suit, appeal or application and to decide it on merits. Further, in absence of any application for condonation of delay, the court has no jurisdiction to proceed with the matter and unless the delay is condoned, there can be no proceeding to decide the same on merit. 17. We have gone through the impugned order passed by the learned Chancellor. What we gather from the perusal of the same is that the learned Chancellor has treated the reference well within time under the facts and circumstances of the case. Even, that too has not been stated in so many words while treating the reference well within time, therefore, in this regard, we hold as under: (1) if the statute provides period of limitation for approaching the court, quasi judicial authority or tribunal and if a person approaches the authority, court or tribunal after expiry of period of limitation, in that eventuality, an application has to be made for treating the proceeding well within time in order to condone the delay or treating the proceeding well within time; that too, after narrating the facts with supporting materials for not initiating the proceedings within time prescribed under the statute; and (2) if such application is filed, along with supporting material that has to be duly sworn on oath, in that eventuality, the other side has to be noticed before treating the proceedings well within time. 18. Here in this case, as we have observed, here-in-above, the reference could be made upto 20.5.2015, but it was filed only on 11.5.2016; that too, without there being any prayer, either in the reference or by way of separate application supported with an affidavit, for treating the reference well within time, after expiry of three months as provided under clause (a) of 1st proviso to section 68 of the Act, therefore, the learned Chancellor has erred in treating the reference well within time; more so, it has not been done in a suo motu proceeding, but it has been done in a proceeding initiated by a private person. 19. 19. In view of the aforesaid legal position, as discussed herein above, since we have already held that the reference itself was barred by time and it has wrongly been treated well within time, therefore, the order passed on merit cannot be sustained in the eyes of law, as in the eyes of law, it could not be decided on merits unless the delay was condoned in accordance with law, therefore, we refrain ourselves to address on the merits of the matter and leaving this question open. 20. In the result, the writ petition succeeds and is allowed. The order dated 14.8.2017 passed by the learned Chancellor, Chaudhary Charan Singh University, Raj Bhawan, Lucknow and the consequential order dated 21.8.2017 passed by the Registrar, Chaudhary Charan Singh University, Meerut are hereby quashed. 21. The respondent no. 5 is granted liberty to file an application along with an affidavit stating the reasons for not filing the reference well within time and the learned Chancellor, thereafter, shall re-consider the question of limitation after issuing notice to the petitioner and other concerned and pass afresh order in accordance with law and in case the delay is condoned, the matter be heard on merit. The University is directed to treat the petitioner in service and permit her to continue in service. However, her continuance shall be dependent upon further order passed by the learned Chancellor.