JUDGMENT : Pramath Patnaik, J. 1. In W.P.(S) No.6304 of 2014, the petitioner seeks quashing of the part of the office order dated 20.07.2013 vide Annexure-18 of the writ application along with the part of the appellate order vide memo dated 31.10.2014, whereby the petitioner has been demoted from the post of Associate Professor-cum-Senior Scientist to the post of Assistant Professor- cum-Junior Scientist by virtue of cancellation of his promotion to the post of Associate Professor-cum-Senior Scientist, and the petitioner has further prayed for issuance of writ of mandamus commanding the respondents to restore the petitioner on the post of University Professor-cum-Chief Scientist, which the petitioner was holding prior to passing of the impugned orders. 2. In W.P.(S) No.6152 of 2014 the petitioner has sought for quashing the part of the office order dated 20.07.2013 and the part of the appellate order dated 31.10.2014, whereby the direct appointment of the petitioner on the post of University Professor-cum-Chief Scientist (Extension & Social Forestry) has been snatched, without giving opportunity of being heard and therefore, the same has been passed in violation of Article 311 of the Constitution of India, and for issuance of writ of mandamus commanding the respondents to reinstate the petitioner on the post of University Professor-cum-Chief Scientist, which the petitioner was holding prior to passing of the impugned orders. 3. Sans details, the facts as emanated from the writ application, is that the petitioner joined service on 01.03.1984 as Assistant Professor-cum-Junior Scientist (Forestry). After completion of 8 years, he has been promoted vide notification dated 28.07.1994 to the Senior Scale w.e.f 01.03.1992 and after completion of 5 years of services in the Senior Scale, he has been promoted on the post of Associate Professor-cum-Senior Scientist with effect from 01.03.1997 vide notification dated 06.05.1998 as evident from Annexure-2 to the writ application. Thereafter, on completion of 8 years of services as Associate Professor-cum-Senior Scientist, the matter of grant of promotion of the petitioner was placed before the Expert Selection Committee, and the said committee recommended for grant of promotion and consequent thereof, vide office order dated 03.10.2005 petitioner was promoted as University Professor-cum-Chief Scientist with effect from 01.03.2005 as per Annexure-3/1 to the writ application. In the meanwhile, the petitioner applied for appointment on the post of University Professor advertised vide Advertisement No.01/2004, and the petitioner was finally selected for the post of University Professor, following the procedure of selection. Accordingly, the appointment letter was issued in favour of the petitioner vide appointment letter dated 11.11.2005 and the petitioner joined the said post and worked thereon till passing of the impugned orders. While continuing as such, on 28.05.2009 after around four years of unblemished service on the non-cadre post of University Professor-cum-Chief Scientist (Forestry), a show cause was served on the petitioner challenging the second phase promotion from Assistant Professor-cum-Junior Scientist (Forestry), Senior Scale to Associate Professor-cum-Senior Scientist (Forestry), questioning the fitness of his two computer certificates, as per Annexure-4 to the writ application. The petitioner submitted his detailed reply refuting the allegations vide his letter dated 08.06.2009 as per Annexure-5 to the writ application. An enquiry committee was constituted under the provisions of Rule 13.9 of the Birsa Agriculture University Statute by framing charges on 05.08.2009, as per Annexure-6 to the writ application. The petitioner submitted his reply to the memo of charges, repudiating all the allegations vide letter dated 19.08.2009 as per Annexure-7 to the writ application. The petitioner also demanded from respondents documentary evidence/materials, which were forming the basis of charges, but the same was not entertained. The enquiry committee was re-notified, after lapse of around 19 months on 28.03.2011, since the earlier committee did not initiate enquiry as per Annexure-9 to the writ application. The petitioner requested for supply of defence materials and the documentary evidence vide letter dated 29.03.2011 as per Annexure-11 to the writ application but the same was not entertained. The petitioner also submitted question for cross examination of Sri Ashok Pathak on the first date of enquiry for clarification of the documents provided with the charges and for ascertaining the cause of action which was unfortunately entertained, as per Annexure-13 to the writ petition. The presenting officer in response to directive of enquiry officer submitted his written witness statement on 16.06.2011 and the enquiry report was submitted. The enquiry officer after due narration of evidences, proceedings, consideration and analysis of the witness statement of Sri Ashok Pathak, declared most of the charges as vague, duplicative and confusing and arrived at following two conclusions only (i) Dr. The enquiry officer after due narration of evidences, proceedings, consideration and analysis of the witness statement of Sri Ashok Pathak, declared most of the charges as vague, duplicative and confusing and arrived at following two conclusions only (i) Dr. Quli did not take permission for the courses and (ii) the institute from where Dr. Quli studied, were not recognized by UGC/ICAR. On 21.04.2012, a second show cause was served on the petitioner on extraneous consideration which was not proved by the enquiry as per Annexure-16 to the writ petition. The petitioner submitted his reply to the second show cause notice. On 20.07.2013 a reasoned order and office order were passed demoting the petitioner from the cadre post of University Professor-cum-Chief Scientist, Extension & Social Forestry to Assistant Professor-cum-Junior Scientist (Forestry) vide Annexure-18 to the writ petition. The petitioner filed appeal under Clause 13.9 of the Statute to challenge the punishment order to the respondent no.2 and the respondent no.2 vide order dated 31.10.2014 dismissed the appeal, upholding the punishment as evident from Annexure20 to the writ application. It has been averred in the writ application that the argument advanced during the personal hearing by the respondent no.2 vide Annexure-21 and the copy of the application of the petitioner submitted for the post of Associate Professor-cum-Senior Scientist do not justify the impugned orders nor indicates the commission of any misconduct on the part of the petitioner. It has further been submitted that the copy of the ICAR sponsored Summer Institute Certificate vide Annexure-23 to the writ petition to prove the illegality of the order passed by the appellate authority. 4. In the above factual backdrop, learned counsel for the petitioner has challenged the impugned order of punishment of cancellation of promotion to the post of Associate Professor and demotion from the post of University Professor to the post of Assistant Professor is unlawful, on the ground stated here-in-below: (I) Learned counsel for the petitioner submits that the definition of misconduct under Rule 13.9 does not cover the cause of action and replacement of Rule 13.9 by Rule 55 of Jharkhand Service Code during course of enquiry as evident from enquiry report upon objection raised by the petitioner indicates about the non applicability of Rule 13.9. (II) Learned counsel for the petitioner further submits that the stale charges have been taken into account during enquiry, which is against the settled principle of law. Moreover, the charges which are vague and duplicative and the enquiry based thereon gets vitiated on that ground. 5. Learned counsel for the petitioner further submits that in the instant case the additional charges have been taken into account and since the allegation of forgery and fraud, which are not part of the charges, have been pressed into surface, therefore, it is apparent that the disciplinary authority has travelled beyond the charges. Learned counsel for the petitioner further submits that the impugned order of punishment is based on additional charges which vitiates the entire proceeding. Learned counsel for the petitioner further submits that the presenting officer was the witness and the petitioner was not given opportunity to cross examine, therefore, as per the settled position of law the whole enquiry has got vitiated, therefore, the punishment order has been passed based on no evidence. Learned counsel for the petitioner further submits that it is not a case that the petitioner was given promotion by playing fraud/misrepresentations but on the other hand that there has been unlawful interference in the decision of the selection committee. Since the decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in constitution of the committee or its procedure vitiating the selection, proved mala fides affecting the selection. Learned counsel for the petitioner further submits that the appellate authority has not applied its mind and the dismissal of the appeal by the appellate authority is based on incorrect grounds. The respondent no.2 dismissed the appeal, without dealing into the arguments denying the right of defence to the petitioner, on the pretext of fraud, whereas genuine ICAR sponsored Summer Institute which is not a matter of enquiry, therefore the order passed by the appellate authority suffers from total non application of mind. The last limb of argument advanced by the learned counsel for the petitioner is that direct appointee on a cadre post, could not have been demoted. 6. The reversion of the petitioner, who was directly recruited on the cadre post of University Professor-cum-Chief Scientist on 11.11.2005, is violation of settled principles of law. The last limb of argument advanced by the learned counsel for the petitioner is that direct appointee on a cadre post, could not have been demoted. 6. The reversion of the petitioner, who was directly recruited on the cadre post of University Professor-cum-Chief Scientist on 11.11.2005, is violation of settled principles of law. In this regard, learned counsel for the petitioner has relied on the judgment of the Hon’ble Apex Court reported in (1988) 4 SCC 168 , (1988) 4 SCC 170 (para-32) and AIR 1987 SC 1627 wherein it is inter alia decided that “the State has passed an order which was clearly unsustainable in view of the fact that the appellant was a direct recruit and there was no question of reverting him to a lower post.” 7. Controverting the averments made in the writ application, a counter affidavit has been filed on behalf of the respondent nos. 1, 3, 4 and 5 University. In the counter affidavit, it has been inter alia submitted that the enquiry was started under the supervision of Dr. S.K. Singh. The petitioner never wanted to participate in the enquiry and whenever he appeared before the enquiry officer, this way or the other, he took time to participate in the next proceeding but he never defended his case properly rather for one reason or the other he avoided. During the pendency of the enquiry, one University Professor Dr. Prashant Kumar was appointed by Shri S.K Singh to go to Patna in order to verify the genuineness of the certificate of the petitioner i.e. the certificate courses and window course. Dr. Prashant Kumar went to Patna at the concerned address and he found the place from where the petitioner had obtained computer course. In one of the shop it was written as ‘PICASO’ and in another it was written as ‘AIRTEL’. So instead of institute, which could have been found there at the concerned address, there were two different shops running in those places from where the petitioner alleged that he obtained the Diploma and other Certificate courses. So, annexing the photo of those two shops, Shri Prashant Kumar deposed before Shri S.K. Singh on 21.05.2011vide Annexure-G series to the counter affidavit. It has further been submitted that whenever the enquiry officer issued letter to the petitioner to appear before him for his defence he always avoided. So, annexing the photo of those two shops, Shri Prashant Kumar deposed before Shri S.K. Singh on 21.05.2011vide Annexure-G series to the counter affidavit. It has further been submitted that whenever the enquiry officer issued letter to the petitioner to appear before him for his defence he always avoided. For examine, one letter was written on 06.06.2011, another letter was issued on 01.06.2011 and further letter was written on 13.06.2011, which was replied by the petitioner on 16.06.2011 whereby the petitioner informed the enquiry officer that his wife is ill and therefore, he cannot attend the proceeding. So, request was made to adjourn the proceeding till further orders. Similarly, on 30.07.2011, the enquiry officer again requested the petitioner to attend the proceeding but having no effect. This type of behavior of the petitioner always remained till the entire departmental proceeding as evident from letters as Annexure-H series to the counter affidavit. After waiting a long time, when the petitioner did not cooperate then the enquiry officer had no option but to submit his report vide his letter dated 06.01.2012 before the University which is Annexure-15 to the writ petition. And along with the copy of the enquiry report second show cause notice was issued to the petitioner which was replied by the petitioner and after considering the representation of the petitioner, the impugned order dated 20.07.2013 demoting the petitioner from the post of University Professor-cum-Chief Scientist to the post of Assistant Professor-cum-Junior Scientist (Senior Scale) with retrospective effect vide Annexure-18 to the writ petition. It has further been submitted that two certificate courses as produced by the petitioner in order to get benefits of Career Advancement Scheme against the post of Associate Professor and on that basis he was further appointed in due course to the post of Professor in the year 2005. So, basically the promotion of the petitioner from the post of Assistant Professor, Senior Scale to the post of Associate Professor was illegal. So, from the date the petitioner was promoted to the post of Associate Professor on 01.03.1997 was withdrawn and the petitioner was demoted to the original post and the Board of Management in its 82nd Meeting has also approved such demotion from the retrospective effect. So, from the date the petitioner was promoted to the post of Associate Professor on 01.03.1997 was withdrawn and the petitioner was demoted to the original post and the Board of Management in its 82nd Meeting has also approved such demotion from the retrospective effect. So, in view of the fact that the petitioner was promoted illegally on the basis of fake certificate course to the post of Associate Professor-cum-Senior Scientist from 01.03.1997, so he has been sent back to the post of Assistant Professor-cum-Senior Scientist as if he was on the post of Assistant Professor, Senior Scale from 01.03.1997 and accordingly, whatever salary or pay scale of the petitioner has withdrawn by way of Associate Professor as well as by way of Professor. The copy of the resolution of the Board of Management dated 20.07.2013 has been annexed as Annexure-I to the counter affidavit. Thereafter, the petitioner filed appeal before the Hon’ble Chancellor which was heard and rejected on 31.10.2014 vide Annexure-20 to the writ petition. So nothing illegality has been committed in demoting the petitioner. 8. Learned senior counsel for the respondents-University has reiterated the submissions made in the counter affidavit. Learned senior counsel for the respondents-University submitted that the grounds taken in second show cause notice can be different from the charges, since the disciplinary authority has right to ask for certificate which are forged. Learned senior counsel for the respondents-University by referring to Annexure-B i.e letter dated 22.07.1988 of the Government of India, Ministry of Human Resources, which pertains to revision of pay scale of teachers in the University, has referred to only clause of Career Advancement wherein the Clause-2 (vii) (d) inter alia envisages that every lecturer in the senior scale will be eligible to the post of Reader if he/she has to participate in two refresher courses/summer institutes each approximately four weeks duration, or engaged in other appropriate continuing education programmes of comparable quality as may be specified by the UGC, after placement in the senior scale. Also the Clause 13(b) of the said letter has been referred, relating to Career Advancement, which says that every lecturer will be placed in a senior scale, if he/she has participated in two refresher, course/summer institution, each of approximately 4 weeks’ duration or engaged in other appropriated continuing education programmes of comparable quality as may be specified by the UGC. 9. 9. Learned senior counsel for the respondent-University has also referred to the appointment to University post in which certain essential procedure has to be observed as per Annexure-B series to the counter affidavit. In order to fortify his argument, learned senior counsel for the respondents has referred to the decision reported in (2004) 2 SCC 105 and AIR 2015 SC 545 . 10. A counter affidavit has also been filed by respondent no.2, repelling the contention made in the writ application. In the counter affidavit, it has been inter alia submitted that after constitution of the enquiry committee to enquire into the charges, a detailed enquiry report was prepared by the enquiry officer vide letter dated 06.01.2012 and specific finding has been given that the charges as mentioned in Article 1(viii) and 1(ix) is proved as per Annexure-R2/L. After receipt of the enquiry report, second show cause notice was issued to the petitioner by the Director (Administration) vide letter dated 21.04.2012 and the petitioner submitted his reply to the second show cause. Thereafter, the Vice-Chancellor, has passed reasoned order dated 20.07.2013 demoting the petitioner to the post of Assistant Professor-cum-Junior Scientist with effect from the date, he was promoted as Associate Professor-cum-Senior Scientist i.e. 01.03.1997 and the impugned order of punishment has been approved by the Vice-Chancellor, BAU, Kanke, Ranchi in its 82nd meeting dated 20.07.2013 and the appellate authority has uphold the order passed by the disciplinary authority vide memo dated 31.10.2014, therefore, no illegality has been committed by the respondents in passing the impugned orders. 11. Learned senior counsel for the respondent no.2, during course of hearing has referred to the Statute of the BAU. Clause 13.9 of Chapter-XIII, which relates to leave and other service conditions of employees of the University. Under Clause 13.9, which deals with conduct, discipline, enquiry, punishment and appeal, learned senior counsel has specifically led emphasis for good and sufficient reasons under Clause 13.9 (2) (b) major penalties can be inflicted. Learned senior counsel further submits that Article 311 (2) is not applicable in the instant case, in view of the statutory provision and in this regard, he has referred to the decision reported in: (i) (1993) 1 SCC 419 (ii) (1984) 1 SCC 43 (para-18, 28 and 29) (iii) (2004) 5 SCC 263 (Para-14) (iv) (2004) 13 SCC 418 12. Learned senior counsel further submits that Article 311 (2) is not applicable in the instant case, in view of the statutory provision and in this regard, he has referred to the decision reported in: (i) (1993) 1 SCC 419 (ii) (1984) 1 SCC 43 (para-18, 28 and 29) (iii) (2004) 5 SCC 263 (Para-14) (iv) (2004) 13 SCC 418 12. After bestowing my anxious consideration to the rivalary submissions and on perusal of the records, the impugned order dated 20.07.2013 passed by the Vice Chancellor, BAU, Kanke, Ranchi vide Annexure-18 and order of the appellate authority dated 31.10.2014 are not legally sustainable in view of the reasons stated here-in-below: (I) Indisputably, the petitioner was directly recruited on the cadre post of University Professor-cum-Chief Scientist after following the due procedure of selection vide Advertisement No.01/2004. Therefore, as a direct recruit to the post of University Professor-cum-Chief Scientist, it cannot be gainsaid, cannot be reverted to a lower post. On the date of impugned orders, the petitioner was working as a directly recruited Professor so the demotion from the post of Professor to the Assistant Professor-cum-Junior Scientist, Senior Scale that too with retrospective effect cannot be countenanced without complying Article 311(2) of the Constitution of India. (II) The view of this Court gets fortified by the decision of the Hon’ble Apex Court reported in (1988) 4 SCC 170 . (III) On perusal of the impugned orders dated 20.07.2013 passed by the Vice Chancellor, BAU, Kanke, Ranchi, it is quite apparent that the impugned order has been passed in adherence to the Clause 13.9 (2) (b) (iv). The punishment of demotion has been passed and that too with retrospective effect w.e.f. 01.03.1997. The order of retrospective demotion is also not sustainable assuming for the sake of argument that the order of punishment is valid in the eye of law. On perusal of the appellate order though it appears to be exhaustive, but the findings of the appellate authority, wherein it appears that the factum of forgery and fraud which are not part of the charge, have been taken into account while considering the appeal of the petitioner. Moreover, the additional charge, ought not to have looked into, therefore, in my considered opinion, the impugned orders dated 20.07.2013 vide Annexure-18 and the order of the appellate authority dated 31.10.2014 are not legally sustainable. 13. Moreover, the additional charge, ought not to have looked into, therefore, in my considered opinion, the impugned orders dated 20.07.2013 vide Annexure-18 and the order of the appellate authority dated 31.10.2014 are not legally sustainable. 13. In view of the reasons stated in the foregoing paragraphs, the impugned orders dated 20.07.2013 vide Annexure-18 and the order of the appellate authority dated 31.10.2014 are quashed and set aside. 14. Accordingly, the writ applications stand allowed and disposed of.