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2020 DIGILAW 1396 (PNJ)

Anand Rai Bansal v. Alok Nigam

2020-07-10

AMOL RATTAN SINGH

body2020
JUDGMENT : AMOL RATTAN SINGH, J. All cases listed today have been taken up for hearing by way of video conferencing because of the situation existing due to the COVID-19 pandemic. 1. As already noticed in the previous orders passed on two occasions in this case, the petitioners are aggrieved of allegedly not having been heard completely, by the Committee ordered to be constituted by this court, while disposing of CWP nos.1402 and 16761 of 2018 vide its order dated 15.10.2019 (copy Annexure P-3). Mr. Moudgils' initial contention had been that despite several points having been put-forth by respondent no.3, the petitioners were not given an opportunity to file counter points to those. [Respondent no.3 herein in fact had been impleaded on the last date of hearing, on an application moved by him for that purpose.] Consequently, this court had directed learned counsel for the University on the last date of hearing, to produce the entire record pertaining to the proceedings of the Committee, and to upload/file the applications filed by both sides before the Committee, which learned counsel for the University submits that he had done, but with an objection raised by the Registry to his application for that purpose. Nevertheless, he submits that he has the entire voluminous record with him. 2. Today, upon Mr. Moudgil having raised a contention that the Committees' decision dated 05.06.2020, has now first seen the 'light of day' only yesterday, by which it has already made its recommendation pursuant to the order of this court dated 15.10.2019, Mr. Patwalia, learned senior counsel appearing for respondent no.3, very fairly does not dispute the fact that even the said respondent has become aware of the recommendation having been made, only yesterday, upon learned counsel for the University having forwarded that decision to both learned counsel. Mr. Moudgil today then again refers to Annexure P-5, which is a representation made by the petitioners to the Additional Chief Secretary, Government of Haryana, Department of Medical Education and Research, annexing therewith a letter addressed by the Registrar of the University dated 12.04.2018 (again addressed to the Additional Chief Secretary in the same Department). Mr. Moudgil today then again refers to Annexure P-5, which is a representation made by the petitioners to the Additional Chief Secretary, Government of Haryana, Department of Medical Education and Research, annexing therewith a letter addressed by the Registrar of the University dated 12.04.2018 (again addressed to the Additional Chief Secretary in the same Department). He points to the fact that in the said letter it has been stated that the next requisition for the post of an Assistant Professor in the Department of Conservative Dentistry, would fall to the General Category, with the present reservation roster being at point no.8. Learned counsel therefore submits that the same position exists in the case of the post of a Senior Professor in the Department of General Surgery and consequently, the said point would again fall to the General Category because an identical situation exists in that Department, as exists in the Department of Conservative Dentistry. He submits that this important fact has not been considered by the Committee constituted by this court, while forwarding its recommendation as has been communicated to both parties yesterday. 3. Mr. Patwalia on the other hand again submits that this court while sitting in contempt jurisdiction would not go into the correctness, or otherwise, of the recommendation made by the Committee, but would only see as to whether the order of this court has been complied with, or not. 4. Upon query to learned counsel for the University as to who the appointing authority for the post of an Assistant Professor in the University is, he submits that as per the rules/regulations of the University, it is the Executive Council of the University that would make the final recommendation for appointment, upon which the Vice-Chancellor would then issue a 'formal order' making the appointment. Before going any further, the operative part of the order of this court date 15.10.2019, passed in CWP nos.1402 and 16761 of 2018 (i.e. the order alleged to have been violated), is reproduced as follows:- “The aforementioned information could not be rebutted by Mr. Goyat, in the absence of any instruction from the University. Before going any further, the operative part of the order of this court date 15.10.2019, passed in CWP nos.1402 and 16761 of 2018 (i.e. the order alleged to have been violated), is reproduced as follows:- “The aforementioned information could not be rebutted by Mr. Goyat, in the absence of any instruction from the University. Be that as it may, I am of the view that since the dispute has arisen for fixing of the roster point either to be 6th or 8th, particularly when this Court cannot assume the role of an expert as it is within the domain of the concerned Department of the University to implement the reservation policy promulgated from time to time or in vogue, in the letter and spirit. Keeping in view the aforementioned facts, without commenting upon the merit and demerit of the matter, I deem it appropriate to dispose of the writ petitions with a direction to the Vice Chancellor, Pt. B.D. Sharma University of Health Sciences, Rohtak, to constitute a Committee consisting of three members i.e. (i) Vice Chancellor, Pt. B. D. Sharma University of Health Sciences, Rohtak; (ii) Additional Chief Secretary, Department of Medical Education and Research or his nominee; and (iii) any nominee nominated by the Vice Chancellor, Bhagat Phool Singh Mahila Vishwavidyalaya, Khanpur Kalan, Sonipat. The said Committee will fix particular time and place for adjudication of the issue, by affording an opportunity of hearing to the petitioners or respondent No.3, or any other affected party i.e. petitioner in CWP-16761-2018, who is also aggrieved for non-filling up the post of Assistant Professor under Physically Handicapped Quota, uninfluenced with the reply or any other stand taken in the pending or the previous writ petition. The parties shall be at liberty to refer to any document and address the arguments, in support of their respective cases. Let this exercise be done within a period of two months from the date of receipt of certified copy of this order. In case, decision is taken in favour of either of the parties, necessary action, as it exists today, as a corollary, be taken. It is made clear that interim order dated 03.04.2018 in CWP No.1402 of 2018 is ordered to be maintained till such decision is taken by the Committee.” 5. Having considered the matter, whereas Mr. In case, decision is taken in favour of either of the parties, necessary action, as it exists today, as a corollary, be taken. It is made clear that interim order dated 03.04.2018 in CWP No.1402 of 2018 is ordered to be maintained till such decision is taken by the Committee.” 5. Having considered the matter, whereas Mr. Patwalia, learned senior counsel is absolutely correct in his contention that this court whilst sitting in contempt jurisdiction would not go into the correctness, or otherwise, of any recommendation made by the Committee, however what is necessarily inherent in any directions given by a court of law, especially a court sitting in jurisdiction conferred under Article 226 of the Constitution, is that the orders must be complied with not just in the letter, but also in spirit, which in fact in the present case is an observation specifically made by a co-ordinate Bench, in the said order dated 15.10.2019, wherein it has been stated that “...this Court cannot assume the role of an expert as it is within the domain of the concerned Department of the University to implement the reservation policy promulgated from time to time or in vogue, in the letter and spirit.” 6. Hence, in the opinion of this court, the spirit of that order is to the effect that both sides should be given a fair opportunity of presenting their cases. Thus, with the Committee having only made a recommendation for the Executive Council to consider (as per learned counsel for the University), it is considered appropriate that if either the petitioners or respondent no.3 wish to make any representation with regard to the recommendation of the Committee (as has now been made available to both sides only yesterday), they would be naturally at liberty to do so, with the Council to consider the representations and take its decision as it deems best, after dealing with the issue raised in the representations of both sides, including any documents relied upon by both sides, with Mr. Moudgil being very specific that the petitioners wish to rely only upon the document, Annexure P-5, with the present petition. Moudgil being very specific that the petitioners wish to rely only upon the document, Annexure P-5, with the present petition. The petitioners are held bound to that statement, in view of the fact that if voluminous record is now again to be presented before the Executive Council (which of course otherwise would be within its own discretion to also look at), it would probably delay matter. However, that is only an observation made by this court, because if the Executive Council itself wishes to further examine more documents/records etc., naturally, it would be within its competence to do so, unless barred by any specific provision not sought to the notice of this court. The petitioners would confine themselves to the document referred to by Mr. Moudgil, with respondent no.3 also bound to limit the number of documents that he may wish to present, to the very minimum, unless of course, to repeat again, the Executive Council itself requires more documents/records etc. With the aforesaid directions and observations, this petition is disposed of.