Dr. Dular Hajam vs The State of Jharkhand & Ors

In this writ application, prayer has been made for quashing of the notice dated 29.11.2015 issued by respondent no.3 whereby the petitioner

has been directed to appear before the respondent no.2 in pursuance to order dated 29.10.2015 passed in W.P.(S) No.4487 of 2015 and for

quashing the notification dated 01.12.2015 issued by respondent no.3 in terms of direction issued by respondent no.2 whereby the respondent

no.5 has been appointed as Principal of Bhadrakali College till further orders and further prayer has been made for quashing of the notification

dated 14.12.2015 issued by respondent no.3 as per the order of respondent no.2 whereby respondent no.6 has been authorized to act as

secretary of the Bhadrakali College, Itkhori and also prayer has been made for direction to the respondents restraining respondent no.3 to interfere

with the smooth functioning of the Principal.

The brief facts as averred in the writ application is that the petitioner was initially appointed on the post of Lecturer on 03.09.2004 and the

petitioner was appointed as Principal by the Governing Body of the said College after due process of selection as per Rules and Provisions of the

Jharkhand State University Act, 2000 vide letter dated 16.07.2006 as per Annexure-2 to the writ petition. The respondent-University constituted

Adhoc Committee of the petitioner''s college vide notification dated 22.08.2006. The respondent no.2 constituted the Governing Body of the

petitioner''s College by notification dated 29.04.2009 and the petitioner was made Ex-Officio Member of the said Governing Body and Mr.

Kumar Yashwant Narayan Singh the donor of the said College was declared member of the said Governing Body and the said Governing Body

was constituted for three years as per the statute vide Annexure-4 to the writ petition. After issuance of permanent affiliation of the College, the

respondent no.1 has granted funds as an aided College in the year 2013 and thereafter, the respondent no.1 has been continuously granting funds

to the petitioner''s college. Prior to grant of fund basing on the complaint, inquiry committee was constituted by the respondent no.2 and the said

inquiry committee submitted a report against the petitioner and the tenure of the Governing Body of College expired in the year 2012. Thereafter,

the respondent no.2 reconstituted the Governing Body by notification dated 02.04.2013 for a period of 3 years as per statute upto March, 2016

vide Annexure-6 to the writ petition. Basing on the inquiry report, the respondent no.2 issued show cause to the Secretary of the Governing Body

of the Bhadrakali College and the petitioner vide letter dated 29.05.2013. The Governing Body have called a meeting on 27.02.2014 for

constituting of a Management Committee as per Section 60 of the Jharkhand State University Act and Statutes and the petitioner has been

working as Principal-cum-Ex-Officio Member of the Governing body of the Bhadrakali College, Itkhori. Vide notification dated 09.02.2015

issued by respondent no.3 as per the order of respondent no.2 whereby the Adhoc committee has been constituted by the respondent no.2

without dissolution of the earlier Governing Body of the petitioner''s College. After issuance of show cause notice dated 27.07.2015, the secretary

of the Adhoc Committee appointed Dr. Surendar Kumar in place of petitioner vide office order dated 28.07.2015 and the said order was

challenged by the petitioner in W.P.(S) No.4487 of 2015 and the writ petition was disposed of vide order dated 29.10.2015 with certain

directions to the respondents. In pursuance to the aforesaid order passed by this Court in W.P.(S) No.4487 of 2015, the Governing Body of the

petitioner''s College called meeting on 19.11.2015 and the petitioner communicated the decision of the Governing Body to the respondent no.2

vide letter dated 24.11.2015 for approval of the meeting and further direction to the Governing Body and on 29.11.2015, the respondent no.3

issued notice to the petitioner with the aforesaid order for appearance before respondent no.2 vide Annexure-11 to the writ petition and the

respondent nos.2 and 3 appointed the respondent no.5 as Principal of College vide notification dated 01.12.2015. Thereafter, respondent nos.2

and 3 issued another notification dated 14.12.2015 and Dr. K. K. Sinha has been authorized as Secretary of the Petitioner''s College vide

Annexure nos.12 (dated 01.12.2015) and 13 (dated 14.12.2015) to the writ petition. Since, the salary of the petitioner was stopped without any

rhyme and reason, the petitioner submitted a representation dated 22.12.2015 before the respondents for release of salary vide Annexure-14 to

the writ petition. Being aggrieved by the aforesaid order vide Annexure nos.11, 12 and 13 to the writ petition, the petitioner has invoked the extra

ordinary jurisdiction under Article 226 of the Constitution of India for redressal of his grievances. During pendency of the instant writ application,

since Dr. Surendar Kumar has been appointed as Principal Incharge of the petitioner''s College, I.A. No.5511 of 2016 has been preferred by the

petitioner for quashing the letter dated 11.08.2016 and the said interlocutory applications two annexures i.e. letter dated 28.07.2016 inquiry report

which has been submitted by Sub Divisional Magistrate-cum- Nominated Secretary of Bhadrakali College to the University and no allegation

against the petitioner has been found by the Adhoc Committee/nominated Secretary of the Adhoc Committee and another letter dated 11.08.2016

which has been issued by the respondent-University whereby Surendar Kumar has been appointed as Principal In-charge and Manish Kumar as a

member of donor.

Learned senior counsel for the petitioner has streneously urged that the respondent nos.2 and 3 are bereft of any authority to appoint Principal

of the Bhadrakali College vide notification dated 01.12.2015 without any consent of the Governing Body of the College. Since, the Governing

Body has appointed the petitioner as Principal of the College as per the statute of Jharkhand State University Act, the Governing Body has a

power to issue show cause notice/termination order to the petitioner. Therefore, the notification dated 01.12.2015 issued by respondent nos.2 and

3 being illegal, arbitrary is devoid of jurisdiction. Learned senior counsel for the petitioner further submits that the appointment of the petitioner as

Principal by the Governing Body of the College in the year 2006 has been made as per the provisions of the act and statute which has been

approved by the University as per the provisions of Section 59(2) of the University Act, 1976. Learned senior counsel further submits that as per

the provisions of Section 59 of the University Act, the Governing Body of the affiliated College is free/empowered to take action against the

Principal, Teachers and Staff of the College which has to be approved by the University under the said provisions. Therefore, the action of the

respondent no.2 in view of letter dated 29.11.2015 is in teeth of the aforesaid provisions under the University Act. Learned senior counsel further

submits that the appointment of respondent no.5 by respondent nos.2 and 3 vide notification dated 01.12.2015 in place of petitioner without

issuance of any notice to petitioner is illegal in view of clause 5 of the statute and Section 59(2) of the University Act. Learned senior counsel

further submits that the respondent nos.2 and 3 has appointed the respondent no.6 as Secretary of the petitioner''s College without dissolving the

existing Governing Body under the provision of clause 28 of the Statutes is also illegal due to want of jurisdiction. To butress his submissions,

learned counsel for the petitioner has referred to judgment reported in 2010 (13) SCC 427 in the case of Oryx Fisheries Private Limited Vs.

Union of India And Others and 2014 (9) SCC 105 in the case of Gorkha Security Services Vs. Government (NCT OF DELHI) And Others at

para nos.21, 26 and 27.

Controverting the averments made in the writ application, a counteraffidavit has been filed by respondent nos. 2 and 3 wherein it has been

submitted that Bhadrakali College, Itkhori is a permanent affiliated College under the University since the session 2011-14 and prior to it the

College was being granted session-wise temporary affiliation, when the committees were functioning. It is a degree college and the college gets

Government grants. It has further been submitted that without exhausting the remedy of statutory appeal the petitioner has approached this Court

hence, the writ petition is not maintainable. Apart from that there are disputed questions of facts which cannot be adjudicated by this Hon''ble

Court. It has further been submitted that the constitution of Ad-hoc Committee on 02.04.2016 (Annexure-I) with its post facto approval by the

syndicate on 18.11.2016 (Annexure-K) superseding all the earlier notification, the impugned notifications (Annexures-12 and 13) become non-

existent and neither the respondent no.5 nor respondent no.6 are working as Principal and Secretary of the College since 02.04.2016. In that view

of the matter the writ petition has become infructuous. So far as notice dated 29.11.2015 (Annexure-11) for giving to the petitioner for personal

hearing is concerned, the petitioner was given the notice. The petitioner appeared before the Vice-Chancellor and other officers on 19.12.2015

and thereafter on third and final hearing (after giving sufficient opportunity) on 24.01.2016, the misappropriation/embezzlement of money and

interpolations were found apparent and also that the signature of student (i.e. recipients of scholarships) was found doubtful for which thorough

investigation by competent agency needed to be done. In that view of the matter, the challenge of issuance of notice is unacceptable and the writ

petition is liable to be dismissed. The copy of the notice dated 29.11.2015 with subsequent letter and order of hearing dated 24.01.2016 have

been annexed as Annexure-A series to the counter-affidavit. It has further been submitted that the Regular Governing Body constituted under

section 60(1) of the University Act expired after 3 years on 29.04.2012, even then the said Governing Body was continuing and during the period

of the petitioner''s working as Principal due to the serious financial embezzlement in the College and interpolation, a complaint was made regarding

the working and management of the College to all concerned. On the basis of such complaint a three member enquiry committee was constituted

by the University and the notification was issued through memo dated 16.07.2012. The Director, HRD, Govt. of Jharkhand and the S.D.O.

Chatra have also requested the University to enquire into the matter as per Annexure-B series to the counter-affidavit. The committee submitted

voluminous report on 12.10.2012 specifically finding the various charges levelled against the petitioner and on the basis of such report show cause

was given to the petitioner on 06.05.2013 vide Annexure-7 and the petitioner never objected to the enquiry report as per Annexure-C & C/1 to

the counter-affidavit. Thereafter, regular Governing Body under Section 60(1) of the University Act was constituted and the notification was issued

on 02.04.2013 but the said Governing Body could not become functional. The petitioner did not comply the condition for the formation within the

statutory time. The Governing Body without the prior approval of the University in its meeting dated 27.02.2014, elected the President and one Sri

Yaswant Narain Singh was donor cum Secretary. But it is pertinent to mention that the donor was to be declared by the syndicate of the University

and more so Kumar Yaswant Narain Singh was not member of the Governing Body as such his election as Secretary was itself illegal. From the

letter dated 13.01.2014 and 10.06.2014, it is apparent that the process for formation of Governing Body was not completed as evident from

Annexure- D & D/1 to the counter-affidavit. The syndicate of the University elected Mr. Manish Kumar as donor of the College and issued the

notification dated 28.07.2014, when there was no Governing Body, the Vice-Chancellor constituted Ad hoc Committee vide notification dated

09.02.2015 for smooth running of the College.

In reply to I.A. No.5511 of 2016 on behalf of respondent nos.2 and 3, it has been submitted that the Vice-Chancellor constituted the Ad hoc

Committee on 02.04.2016 under Section 60 (4) of the Act vide notification dated 02.04.2016. The said notification has superseded all the earlier

notifications issued in this regard and the said Committee has been given post facto approval by the syndicate in its resolution dated 18.11.2016 as

per Annexure-I and K/1 to the counter-affidavit. Therefore, there is neither any ambiguity nor any illegality in the constitution of the Ad hoc

Committee by the respondent no.2. Soon after the issuance of notification dated 02.04.2016 Dr. K. K. Sinha and Dr. Rekha Rani stopped

working as Secretary and Principal of the College. Subsequently, Dr. K. K. Sinha has been appointed as Proctor of the University and presently

constituted functional Ad hoc Governing Body for smoothly running with the members.

Learned counsel on behalf of the respondents no.2 and 3 has vociferously submitted that prayers in the writ petition and submissions made in the

forgoing paragraphs have become infructuous. Learned counsel for the respondents no.2 and 3 has further submitted that since the petitioner has

not challenged the present Ad hoc Committee dated 02.04.2016 after expiry of the term of the earlier Governing Body on 02.04.2016 and the

resolution of the Ad hoc Committee on 14.02.2017 approving the appointment of Dr. Surendra Kumar and Manish Kumar has not been

challenged by the petitioner since, the College running smoothly and the petitioner is being paid salary regularly.

A counter-affidavit has been filed on behalf of respondent no.4 i.e. Governing Body of Bhadrakali College repudiating the assertions made in the

writ application. In the counter-affidavit filed by the respondent no.4 it has been submitted that the petitioner has challenged the orders of the Vice-

Chancellor of Vinoba Bhave University which are appealable and the writ petition is liable to be dismissed on that score. It has been submitted in

the counter-affidavit that compliance to direction of the Hon''ble Court vide Annexure-9 to the writ application, the notice of hearing was given to

the petitioner on 29.11.2015 vide Annexure-11 to the writ petition. It has been submitted that on resignation of Smt. Rekha Rani and Dr. K. K.

Sinha, the prayer of the petitioner challenging the appointment (Annexures 12 and 13) has become infructuous and as such, the writ petition is

liable to be dismissed. It has further been submitted that from the Government grant and as per the Resolution of Ad hoc Committee dated

05.10.2016 the salary has been paid to the petitioner (after adjusting proportionate loan) and other employees upto August, 2016. It has further

been submitted that by the Constitution of the Ad hoc Committee on 02.04.2016 and its member the College is running smoothly. It has further

been submitted that after grant of permanent affiliation of the College on 09.08.2011 (Annexure-5), the petitioner showing himself to be the

Principal of Itkhori Inter College has transferred on 13.09.2011about 2.14 acres of land of the Degree College in question posing himself to be the

nominee of Hon''ble Governor by virtue of a Rectification. Coming to know about this fact the staff and lecturers of the Bhadrakali (Degree)

College have made a complaint to Hon''ble Governor on 10.11.2016 to all concerned including donor member of the Governing Body and the

matter is pending before His Excellency, Governor, Jharkhand. Learned counsel for the respondent no.4 apart from reiterating submissions made

in the counter-affidavit has emphatically submitted that most of the prayers of the petitioner have infructuous since, the same do not survive for

consideration and so far as prayer no.4 is concerned, the same does not exist in view of invalid appointment of the petitioner and moreover, the

petitioner does not have any vested and indefeasible right to continue as Principal of the said College.

After hearing learned counsel for the respective parties at length and on perusal of the records, this Court is not inclined to accede the prayer of

the petitioner on the ground that during the pendency of the writ application the prayers do not appear to have survived for consideration, due to

the following facts as stated hereinbelow:-

(I) This Court vide order dated 29.10.2015 in W.P.(S) No.4487 of 2015 filed by the present petitioner has been pleased to allow the application

with the following direction:-

In view of the aforesaid decision, the Vice-Chancellor would be well authorized to issue specific direction to the existing Governing Body

under the provisions of the Universities Act and Statute for proper administration and management of the College till such a decision is taken

relating to continuation of the existing Governing Body or creation of a new Governing Body. Consequently, the respondent-Vice Chancellor

would also be entitled to make interim arrangement to ensure impartial and proper conduct of the affairs of the College, so far as the charge of

Professor-in-Charge of the College is concerned, in view of the fact that certain charges have been alleged against the present petitioner. Needless

to say, the University while taking any such decision on the charges levelled against the petitioner, would act in accordance with law after giving

due opportunity to the petitioner in compliance with the principles of natural justice.

(II) In pursuance to the aforesaid direction, the Vice-Chancellor constituted the Ad hoc Committee on 02.04.2016 under Section 60(4) of the Act

vide notification dated 02.04.2016. The said notification has superseded all the earlier notification issued in this regard and the said Committee has

been given post facto approval by the Syndicate in its resolution dated 18.11.2016 as evident from Annexures I and K/1 of the counter-affidavit.

Therefore, there is neither any ambiguity nor any illegality in the Constitution of the Ad hoc Committee by the respondent no.2. After issuance of

notification dated 02.04.2016, the respondent nos.5 and 6 stopped working as Secretary and Principal of the College and subsequently, the

respondent no.6 has been appointed as Proctor of the University and presently constituted functional Ad hoc Governing Body is running smoothly

with the coordination of its members as has been disclosed in the counter-affidavit of respondents.

In view of the subsequent events, the reliefs sought for by the petitioner have become infructuous. Accordingly, the writ petition filed by the

petitioner does not require any determination by this Court. Accordingly, the writ petition stands disposed of being infructuous.