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2017 DIGILAW 2288 (ALL)

MADHU JAIN v. STATE OF U. P.

2017-10-05

NEERAJ TIWARI, RAN VIJAI SINGH

body2017
JUDGMENT By the Court.—We have heard learned counsel for the petitioner, Sri Vivek Varma, learned counsel for respondent Nos. 2 to 4 and learned Standing Counsel. 2. By means of this writ petition the petitioner has prayed to issue a writ of certiorari quashing the order dated 17.4.2013 issued under the signature of Registrar, Dr. B.R. Ambedkar University, Agra. 3. vide order dated 17.4.2013, the Registrar of the University intimated the petitioner that Executive Council of the University has refused to accept the recommendation of the Selection Committee to promote the petitioner on the post of Professor. It has also been observed that the conduct of the petitioner falls in the category of fraud being outcome of concealment of fact. 4. While assailing the aforesaid order, learned counsel for the petitioner vehemently contended that before passing the order, no opportunity was afforded to the petitioner and allegation of fraud and concealment of fact has been alleged against her which cannot be sustained in the eyes of law as once the allegation of fraud is alleged that is not only be pleaded but the same has to be proved after providing opportunity of hearing to the affected party, whereas, here in this case no opportunity was given to the petitioner before passing the impugned order. 5. Refuting the submission of learned counsel for the petitioner, Sri Varma contended that in view of the fact that the service of petitioner had already been confirmed in IIT Roorkee w.e.f. 31.12.2009, therefore, she was under an obligation to inform the University about the same and her conduct falls in the ambit of concealment of fact and fraud played upon the University. 6. The facts of this case, in brief, are that the petitioner was initially appointed on the post of Reader in Mathematics Department in the University on 28.9.1998. In due course, while working as such she has sought an extra ordinary leave without pay w.e.f. 31.12.2008 to 30.12.2009 with a view to join on the post of Assistant Professor in IIT Roorkee. The leave has further been sought w.e.f. 31.12.2009 to 30.12.2011. It appears that on both the occasions, leave was sanctioned and during that period in the year 2011, in the meeting of Executive Council dated 4.10.2011, the petitioner was considered for the promotion on the post of Professor in Mathematics treating her to be an employee of University of Agra. The leave has further been sought w.e.f. 31.12.2009 to 30.12.2011. It appears that on both the occasions, leave was sanctioned and during that period in the year 2011, in the meeting of Executive Council dated 4.10.2011, the petitioner was considered for the promotion on the post of Professor in Mathematics treating her to be an employee of University of Agra. However, prior to issuance of appointment letter, the University has received an information that service of the petitioner has been confirmed in IIT Roorkee. 7. In order to verify the aforesaid fact, University has made correspondence with the Director of IIT Roorkee regarding the petitioner’s status of service. Authorities of IIT Roorkee have informed the Vice-Chancellor of the University vide letter dated 24.10.2011 that the petitioner had already been confirmed on the post of Assistant Professor w.e.f. 31.12.2009 in IIT Roorkee. 8. After coming to know this fact, the matter of the petitioner was again placed in the meeting of Executive Council dated 25.1.2012 and Executive Council has not only disapproved the recommendation of the Selection Committee but also observed that act of the petitioner falls in the ambit of fraud. 9. While assailing this order, learned counsel for the petitioner has contended that the order impugned has been passed without affording an opportunity of hearing to the petitioner, therefore, the same cannot be sustained in the eyes of law. 10. In paragraph 18 of the short counter-affidavit(in short, S.C.A.), it has been stated that the petitioner after completion of one year of probation in IIT Roorkee, has been confirmed on 31.12.2009. The reply of paragraph 18 of S.C.A. has been given in paragraph 9 of the rejoinder-affidavit but the factum of the date of confirmation on the post of Reader in IIT Roorkee has not been denied. 11. It is well-settled that even after giving an opportunity of hearing, if the same result is likely to come and the order has been passed without affording an opportunity of hearing, in that eventuality, the order would not be vitiated. 12. 11. It is well-settled that even after giving an opportunity of hearing, if the same result is likely to come and the order has been passed without affording an opportunity of hearing, in that eventuality, the order would not be vitiated. 12. The Apex Court in the case of Malloch v. Aberdeen Corporation, (1971) 2 All ER 1278, has held that the breach of natural justice do also occur where all facts are not admitted or are not all beyond dispute but relief can be refused when the case of the applicant is not one of “ real substance” or that there is no substantial possibility of his success or that the result will not be different even if natural justice is followed. The same view has been reiterated in the case of Glynn v. Keele University, Cinnamond v. British Airports Authority, not only in England but here also the Supreme Court in the case of S.L.Kapoor v. Jagmohan and others, (1980) 4 SCC 379 , has held as under : “In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal”. 13. The same view has been reiterated in M.C. Mehta v. Union of India and others, (1999)6 SCC 237 , Aligarh Muslim University and others v. Mansoor Ali Khan, (2000) 7 SCC 529 , Manish Kumar v. State of U.P. and others, 2010 (6) AWC 6320 and many other decisions of Apex Court as well as of this Court. 14. 13. The same view has been reiterated in M.C. Mehta v. Union of India and others, (1999)6 SCC 237 , Aligarh Muslim University and others v. Mansoor Ali Khan, (2000) 7 SCC 529 , Manish Kumar v. State of U.P. and others, 2010 (6) AWC 6320 and many other decisions of Apex Court as well as of this Court. 14. The Apex Court in the case of Karnataka State Road Transport Corporation and another v. S.G. Kotturappa and another, 2005(3) SCC 409 , as well as this Court in Smt. Vibha Shukla and another v. D.E.(Basic) U.P., Alld. and others, 2012(6) ADJ 246 , have held that affording the opportunity is not a ritual, if in a given circumstance even after giving an opportunity, same result is likely to come and the decision has been taken without affording an opportunity. In that eventuality, the order should not be interfered with. 15. In view of the fact that the petitioner could not deny confirmation on the post of Assistant Professor in IIT Roorkee as well as no intimation to the University, therefore, even if the opportunity was afforded to the petitioner before passing the order, the things could not be improved. However, so far as observation made against the petitioner regarding concealment of fact or fraudulent action of the petitioner, is concerned, in that regard we only observe that any observation made against the petitioner with respect to concealment of fact or fraud, will not be read against her in future, in case any occasion arises for promotion on the post of Professor in IIT Roorkee or anywhere else. 16. It is further observed that every concealment of fact cannot be brought under the category of fraud and it is subject to satisfaction of the Authority as after considering the reply, if offered, the authority may defer from recording the finding of fraud. Since here in this case, stragmatic order has been passed without affording an opportunity of hearing, therefore, it should not be read against the petitioner. 17. The writ petition is disposed of with the aforesaid observations.