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2018 DIGILAW 552 (ALL)

NISHITH RAI v. STATE OF U. P.

2018-03-06

DILIP B.BHOSALE, VIVEK CHAUDHARY

body2018
JUDGMENT : DILIP B. BHOSALE, CJ. 1. Heard Mr. H.G.S. Parihar, learned Senior Counsel, assisted by Ms. Meenakshi Singh Parihar, learned counsel for the petitioner, Mr. Raghvendra Singh, learned Advocate General, assisted by Mr. A.N. Trivedi, learned Additional Chief Standing Counsel, for the respondent-State and Mr. Manish Kumar, Advocate with Ms. Kritika Ranjan, learned counsel for respondents 4 to 7. 2. Learned Advocate General for the State seeks short adjournment to file counter affidavit and place relevant materials on record. This being the first date, we are inclined to grant time, as prayed, till 20.03.2018. Learned Senior Counsel for the petitioner, however, insisted for hearing of the petition for interim order. In this backdrop, we have heard counsel for the parties for some time and with their assistance, gone through entire materials placed on record. It would be advantageous to reproduce the prayers made in the writ petition to understand the challenge raised by the petitioner: "(i) issue a writ, order or direction in the nature of CERTIORARI quashing the impugned order(s) dated 17.2.2018 passed by the State Government, if any, under section 27(10), Dr Shakuntala Misra Rehabilitation University (For Differently Abled) Uttar Pradesh Act 2009 or any other provision, refraining the petitioner from discharging the functions of office of the Vice Chancellor, Dr Shakuntala Misra National Rehabilitation University, Lucknow and appointing an acting Vice Chancellor, after summoning the same from the Opposite Parties. (ii) issue a writ, order or direction in the nature of CERTIORARI quashing the impugned decision(s) of the General Council, Dr Shakuntala Misra National Rehabilitation University, Lucknow dated 17.2.2018 as taken under section 27(9), Dr Shakuntala Misra Rehabilitation University (For Differently Abled) Uttar Pradesh Act 2009 or any other provision, if any, for instituting the inquiry against the petitioner after summoning the same from the Opposite Parties. (iii) issue a writ, order or direction in the nature of MANDAMUS thereby commanding and directing the opposite parties to allow the petitioner to discharge the functions of the office of Vice Chancellor, Dr Shakuntala Misra National Rehabilitation University, Lucknow and restrain the Acting Vice Chancellor from performing the functions forthwith." 3. (iii) issue a writ, order or direction in the nature of MANDAMUS thereby commanding and directing the opposite parties to allow the petitioner to discharge the functions of the office of Vice Chancellor, Dr Shakuntala Misra National Rehabilitation University, Lucknow and restrain the Acting Vice Chancellor from performing the functions forthwith." 3. It appears that the petitioner had earlier filed a writ petition bearing Service Bench No. 19231 of 2017, for the following reliefs: "(I) To issue a writ, order or direction in the nature of certiorari quashing the impugned office order dated 16.8.2017 bearing No. 85/Ku.Ki.Karya./ DSMNRU/ 2017-18 issued by respondent No. 5, as contained in Annexure No. 1 to this petition. (II) To issue a writ, order or direction in the nature of certiorari quashing the impugned office order dated 16.8.2017 bearing Patrank-86/Ku.Kai. Karya./ DSMNRU/ 2017-18 issued by respondent No. 5, after summoning original of the same, from respondent No. 5. (III) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 16.8.2017 bearing order No. 387/65-3-2017-08 (vi.vi.)/2011 passed by respondent No. 2 as contained in Annexure-2 to this writ petition. (IV) To issue a writ, order or direction in the nature of mandamus commanding the respondents to permit the petitioner to continue discharging the functions of Vice Chancellor of Dr. Shakuntala Mishra National Rehabilitation University. (V) To issue such other order or direction which this Hon'ble Court may deem just and proper in the circumstances of the case to protect the rights and interest of the petitioners. (VI) Award the costs of the writ petition." 2. Subsequently, by way of amendment, further following three additional reliefs were prayed for:- "(IA) To issue a writ, order or direction in the nature of certiorari quashing the resolution passed by Central Council of University by means of circulation in pursuance whereof 1st impugned office order dated 16.8.2017 has been passed, after summoning original of the same from respondent No. 4. (IB) To issue a writ, order or direction in the nature of certiorari quashing the order passed by the Hon'ble the then Chief Minister, appointing the Principal Secretary, Department of Handicap Welfare, Civil Secretariat, Lucknow, as Enquiry Officer, after summoning original of the same from respondent No. 1. (IB) To issue a writ, order or direction in the nature of certiorari quashing the order passed by the Hon'ble the then Chief Minister, appointing the Principal Secretary, Department of Handicap Welfare, Civil Secretariat, Lucknow, as Enquiry Officer, after summoning original of the same from respondent No. 1. (IC) To issue a writ, order or direction in the nature of certiorari quashing the preliminary/fact finding enquiry report dated 7.4.2017 submitted by the Principal Secretary, Department of Handicap Welfare, Civil Secretariat, Lucknow, after summoning original of the same from respondent No. 1." 4. The said writ petition was heard at length and was disposed of vide order dated 16.11.2017. The action, impugned in the said writ petition, was taken by the General Council, invoking provisions of Section 12(5) of Dr. Shakuntala Misra Rehabilitation University (For Differently Abled) Uttar Pradesh Act, 2009 (for short "the Act"). The writ petition was allowed holding that "there was no urgency while exercising the power under Section 12(5) of the Act and thus the consequential action of the issue of the order dated 16.8.2017, would become vitiated in the eyes of law and thus merit to be quashed". Though the order was quashed, it appears, the Division Bench made certain observations including that the charges against the petitioner are of serious in nature. In the concluding paragraph Nos. 46 to 51, this Court observed thus: "46. As regards the second aspect of participation of Sri Mahesh Kumar Gupta in the proceedings of Section 12(5) or 27(9) of the 2009 Act, again on account of the above reasoning that no one can be a judge of his own cause, Sri Mahesh Kumar Gupta, Principal Secretary, Empowerment of Persons with Disabilities Department, Government of U.P. although he is a statutory member of the General Council, and had conducted the fact finding inquiry and had submitted the report dated 07/13.04.2017, cannot now be associated either with the proceedings of the General Council in the proposed action against the petitioner or in any meeting of the General Council considering the final inquiry report submitted by the Inquiry Officer, nor can he be given the charge of the Vice Chancellor to manage the affairs of the University during the time when the order under section 27(10) is in operation. 47. 47. Here we may hasten to add, that, we have not specifically gone into the merits of the impugned orders dated 16.8.2017, i.e., the orders passed after the decision making process, inasmuch as we have found the decision making process itself to be patently flawed. Hence, once the decision making process is found by us to be vitiated and flawed, accordingly, all consequential action taken on the basis of such process of decision making becomes flawed and vitiated in the eyes of law. 48. Keeping in view the detailed discussions made above, we hold that the decision of the General Council dated 16.08.2017 and the consequential impugned orders dated 16.8.2017 as contained in Annexures-1 and 2 to the writ petition, cannot be sustained in the eyes of law and are accordingly quashed. 49. However, while quashing the impugned orders dated 16.8.2017 as contained in Annexures-1 and 2 to the writ petition and while exercising power under Article 226 of the Constitution, we cannot refrain ourselves from observing about the inquiry report dated 7.4.2017, which has been submitted by Sri Mahesh Kumar Gupta, Principal Secretary, Empowerment of Persons with Disabilities Department, Government of U.P., upon perusal of which we find serious charges having come out in the fact finding inquiry against the petitioner. Accordingly, we direct that despite this Court having quashed the orders dated 16.8.2017, yet in the facts and circumstances of the case, the petitioner would only be entitled to carry out day-to-day functioning of the post of Vice Chancellor and shall not take any policy decision till a fresh decision is taken by the General Council, whether or not to proceed under Section 27(9) of the 2009 Act, for which we grant three months time from today. During this period, it would be open to the opposite parties to initiate action against the petitioner strictly in accordance with the provisions of 2009 Act but at the same time, we further provide that the petitioner will not be a part of any proceeding(s) that may now be undertaken for consideration of any proposed action against him. However, in the inquiry that may be conducted, the petitioner would to entitled to adequate opportunity as may be permissible under law. 50. However, in the inquiry that may be conducted, the petitioner would to entitled to adequate opportunity as may be permissible under law. 50. We further provide that the State Government may not entrust Sri Mahesh Kumar Gupta, Principal Secretary, Empowerment of Persons with Disabilities Department, Government of U.P. to hold the office of Vice Chancellor of the University during the period of inquiry or in contemplation thereof or associate him with any proceedings against the petitioner. 51. Needless to mention that in case no action is taken or is required under the provisions of the 2009 Act by the opposite parties and there is no other legal impediment, then after a period of three months, the normal functioning of the petitioner shall stand restored." 5. In this backdrop, learned Senior Counsel for the petitioner raised three contentions. Firstly, the meeting in which the impugned decision was taken was convened by unauthorized person. In other words, the meeting dated 17.2.2018 was convened by Principal Secretary, Medical Education, who is also a member of the General Council, had no authority in law to convene a meeting and it is only the petitioner, who is the Vice Chancellor, under Section 27(11)(c) of the Act alone has authority in law to convene the meeting. Secondly, he submitted that there was no fifteen days clear notice, as contemplated under Section 12(1) of the Act; and thirdly, that the General Council failed to take a decision within a period of three months as per the direction issued by this Court in the judgment dated 16.11.2017. 6. At this stage, learned Senior Counsel for the petitioner, raised fourth ground that the impugned order has been passed by the State Government on recommendation of the General Council which was not authorized in law to make such a recommendation. 7. We have carefully gone through the judgment and order passed by this Court dated 16.11.2017, in particular, paragraph 49 thereof. This order was not carried to the Supreme Court by either of the parties. In other words, this order attained finality. 7. We have carefully gone through the judgment and order passed by this Court dated 16.11.2017, in particular, paragraph 49 thereof. This order was not carried to the Supreme Court by either of the parties. In other words, this order attained finality. It is clear from the observation made in paragraph 49 of the order that, while quashing the order dated 16.8.2017, this Court had issued direction, on the facts and in the circumstances of case, that the petitioner would only carry out day-to-day functioning of the post of Vice Chancellor and was restrained from taking any policy decision till a fresh decision was taken by the General Council, whether or not to proceed under Section 27(9) of the Act and three months time was granted for the same. Accordingly, the General Council convened a meeting on 17.2.2018 in which they took a decision to proceed against the petitioner under Section 27(9) of the Act and also recommended to restrain the petitioner from acting as Vice Chancellor, pending the inquiry. Section 27(9) provides that if, in the opinion of the General Council, the Vice Chancellor willfully omits or refuses to carry out the provisions of the Act or abuses the powers vested in him, or if it otherwise appears to the General Council that the continuance of the Vice Chancellor in office is detrimental to the interest of the University, it may, after making proper inquiry to be completed (preferably) within six months, recommend removal of the Vice Chancellor to the Visitor by an order. The provision further provides that the Visitor may remove the Vice Chancellor from the office. From bare perusal of this provision, we are of the prima facie view that the General Council, which has powers to recommend removal, can recommend to the State Government to pass restrain order also against him if it appears to the General Council that his continuance in the office is detrimental to the interest of the University. We are however not expressing any final opinion on the question. We are of the firm view that merely because such a recommendation was made, the order of the State Government passed under sub-section (10) of Section 27 of the Act, in any case, would not vitiate or cannot be set aside only on that ground. We are however not expressing any final opinion on the question. We are of the firm view that merely because such a recommendation was made, the order of the State Government passed under sub-section (10) of Section 27 of the Act, in any case, would not vitiate or cannot be set aside only on that ground. This Court has already examined the charges against the petitioner only on the basis of the report dated 7.4.2017 and observed that the charges against him are serious. Further, it is pertinent to note that the State Government has not passed restraint order against the petitioner only on the recommendation made by General Council but it has independently recorded its reasons for passing such an order. 8. Insofar as the question whether the meeting itself, in which the impugned decision was taken, was convened by a person who was not authorized to do so, in our opinion, also deserves to be answered in the negative. It is pertinent to note that the meeting of the General Council was convened in view of the order passed by this Court dated 16.11.2017, whereby General Council was allowed to take a fresh decision, whether or not to proceed under Section 27(9) of the Act with a rider that the petitioner shall not be a part of any proceeding(s). In other words, petitioner was precluded from participating in any proceedings that would be initiated in pursuance of the order dated 16.11.2017. Therefore, the question of petitioner convening a meeting, being a Vice Chancellor, under Section 27(11)(c) of the Act, did not arise. It has come on record that the meeting was convened at the instance of Chairperson of the General Council who happened to be the Chief Minister of the State and the decision to convene meeting was only carried by Principal Secretary (Medical Education), by issuing letter/notice of the meeting. In view thereof, it cannot be stated that the meeting was convened by unauthorized person. Moreover, it also appears from the provisions contained in Section 12(5), the Chairperson is authorized to permit the business to be transacted by circulation of papers to the members of the General Council. That being so, it cannot be stated that the Chairperson has no authority in law to convene a meeting particularly in the backdrop of the facts in which the meeting in question was called by him. 9. That being so, it cannot be stated that the Chairperson has no authority in law to convene a meeting particularly in the backdrop of the facts in which the meeting in question was called by him. 9. The next question that there was no fifteen days clear notice also deserves to be rejected outright. Firstly, the petitioner was not entitled to receive any notice of the meeting in view of the observations made in paragraph 49 of the order dated 16.11.2017. That apart, none of the members of the General Council has made such a grievance. Moreover, we are informed that the notice was issued on 2.2.2018 and it was sent to all members by email and the meeting was on 17.2.2018 (i.e. on 16th day from the date of notice). Moreover, none of the members has made grievance of either not receiving the notice or not getting sufficient time to attend the meeting. This submission also, in our opinion, deserves to be rejected. We have also examined the contention urged on behalf of the petitioner that the General Council failed to take decision as per the judgment dated 16.11.2017 within a period of three months. From bare perusal of the observation made in paragraphs 49, 50 and 51, it is clear that the petitioner was restrained for a period of three months from taking any policy decision till fresh decision was taken by the General Council and if such a decision was not taken within the stipulated time, the petitioner's power were to stand automatically restored. This ground is also of no avail to the petitioner in view of the fact that there was only one day delay in taking the decision. In any case, on this ground, the decision taken by General Council would not vitiate. In the circumstances, the prayer for interim relief is rejected. 10. At this stage, counsel for the petitioner prays for allowing the amendment application whereby he prays for amendment of prayer clause. The amendment application is allowed. Amendment to be carried out within a week from today. It is needless to mention that the petitioner shall serve a copy of the amended writ petition to the Advocates on record for the respondents. 11. It is open to the respondents to file their rejoinder affidavit, if they so desire and are advised, within two weeks therefrom. 12. Amendment to be carried out within a week from today. It is needless to mention that the petitioner shall serve a copy of the amended writ petition to the Advocates on record for the respondents. 11. It is open to the respondents to file their rejoinder affidavit, if they so desire and are advised, within two weeks therefrom. 12. It is needless to mention that the parties shall exchange counter and rejoinder affidavits well in advance. Further, it is open to the parties to apply for fixed date of hearing after the affidavits are exchanged.