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Judgment
This petition has been filed by the petitioner under Article 226/227 of the Constitution of India challenging the orders dated 11.12.2006 and
26.12.2006. The petition was admitted vide order dated 28.12.2006 on the following two questions:-
1:- Whether the Chancellor has power under Section 12(4) of the Madhya Pradesh Vishwavidhyalaya Adhiniyam, 1973 to set aside the appointment of the petitioner
and to annul the proceedings of the Executive Council of the University.
2:- Whether petitioner is O.B.C. in the State of Madhya Pradesh when he is declared O.B.C. in the State of Bihar.
To answer these questions on which, this petition has been admitted and to resolve the controversy involved therein, it is apt to mention certain
important facts of the case that a caste certificate showing that the petitioner belongs to Other Backward Class (O.B.C.) category was issued on
29.06.1995 by the Officer of Jagtada, Bihar and as per the said certificate, the petitioner belongs to Karmakar (Lohar) caste which is recognized as
O.B.C. in the State of Bihar. In the list of O.B.C. of State of Madhya Pradesh (Annexure-P/1), the caste Karmakar (Lohar) finds place at serial
No.29. The respondents/University published a Nation-wide advertisement (Annexure-P/4) inviting applications from all eligible candidates belonging
to O.B.C. category for the post of Reader in the Management Faculty. The said advertisement was circulated to the Registrars of all the Universities
in India with a request to provide it wide publicity. In response to the said notification, on the basis of his O.B.C. caste certificate, the petitioner applied
for the said post. Thereafter, the petitioner received a call letter for interview and a High Power Selection Committee interviewed him and he was
issued appointment letter on 8. 05.2000 (Annexure-P/5) as per the decision of the Executive Council. Thereafter, vide order dated 5. 09.2003
(Annexure-P/6), the petitioner was confirmed on the post of Reader.
A person named Dr. Santosh Yadav made a complaint to respondent No.1 against the appointment of the petitioner to the post of Reader in the
M.B.A. Department of the respondent/University. On that basis, the respondent No.1 directed the Executive Council of respondent No.2/University to
reconsider its decision dated 08.05.2000. The Executive Council of the respondent/University reconsidered its decision dated 08.05.2000 under the
direction of respondent No.1 and maintained its earlier decision regarding appointment of the petitioner as Reader in the M.B.A. Department. On
08.08.2005, the Chancellor issued a show-cause notice asking the respondent/University as to why, the decisions of the Executive Council dated
08.05.2000 and 10.06.2005 be not annulled. Respondent No.2 communicated the aforesaid show-cause notice to the petitioner asking him to file a
reply to the same and pursuant thereto, the petitioner submitted his reply on 22.08.2005. On 11.12.2006, the Chancellor of the respondent/University
annulled the decisions of the Executive Council and directed the respondent/University to cancel the appointment of the petitioner with immediate
effect and on 22.12.2006, the petitioner was communicated an order dated 11.12.2006 and on 26.12.2006, respondent No.2 passed the order
terminating the services of the petitioner w.e.f. 23.12.2006. Hence, the petitioner filed the instant petition seeking quashment of the orders impugned
dated 11.12.2006 (Annexure-P/11) and 26.12.2006 (Annexure-P/12).
Although, none appeared on behalf of the respondents but reply on their behalf has been filed. As per the reply filed by respondent No.1, the
petitioner belongs to Lohar (Karmkar) caste and had obtained a caste certificate dated 29.06.1995 in that regard and lateron, another caste certificate
for Scheduled Tribe dated 24.02.1996 was issued by the State of Bihar and as such, there cannot be two caste certificates of two different castes in
favour of one person and at the same time, it creates doubt as such, the certificate dated 29. 06.1995 of O.B.C. stood cancelled automatically. It is
also stated by respondent No.1 that in pursuance to judgment passed by the Supreme Court in the case of Nityanand Sharma & another Vs. State of
Bihar & others reported in AIR 1996 SC 2306 ,the State Government, Bihar issued a circular dated 23.03.1996 cancelling all the certificates issued in
favour of Lohar communities showing them to be a category of Scheduled Tribe. Respondent No.1, therefore, has stated that the petitioner has played
a fraud knowing fully well that the caste certificate showing him to be a candidate of Scheduled Tribe candidate has already been cancelled. It is also
stated by him that the Government of India and also State of Madhya Pradesh on so many occasions had clarified this position that any person
belonging to Scheduled Caste/Scheduled Tribe category if migrated to other State from his native State then fresh caste certificate, from that
particular State where he/she has migrated, had to be issued and as such, the petitioner cannot take advantage in the State of Madhya Pradesh on the
basis of the certificate issued to him in the State of Bihar. It is also clarified by respondent No1 that in the State of Madhya Pradesh, the list of O.B.C.
contained Lohar (Vishwakarma) but not the Lohar (Karmakar), therefore, the petitioner cannot get the benefit of the said certificate and as such, his
appointment is illegal and has rightly been cancelled. It is also stated by respondent No.1 that the petitioner got appointed in the year 1998 in Dr. Hari
Singh Gaur University, Sagar on the basis of his certificate of Scheduled Tribe which already stood cancelled in the year 1996 and as such, the
petitioner was not entitled to get benefit of his caste certificate, therefore, his termination is proper.
Respondent No.2 has also filed a reply stating therein that the Vice-Chancellor is empowered to take any action as he deems necessary. It is also
stated by respondent No.2 that since the Chancellor had already passed the order annulling the proceeding of the Executive Council of the University
regarding appointment of the petitioner, therefore, there is no other option but to implement the order passed in pursuance to the order of the
Chancellor. As per respondent No.2, the appointment of the petitioner was made after the approval of the Executive Council under Section 49(5) of
the Madhya Pradesh Vishwavidhyalaya Adhiniyam, 1973 (in short the ‘Adhiniyam, 1973’). Thereafter, as per Section 15(4) of the Adhiniyam,
1973, the matter has also been placed before the Executive Council in the meeting held on 08.01.2007. It is also stated in the reply that respondent
No.2 has not passed any order but has only communicated the same. According to respondent No.2, as per Section 16(5) of the Adhiniyam, 1973, the
Registrar of the University has to sign all the documents on behalf of the University, therefore, he cannot be considered to be an Authority who
passed the order of termination of the petitioner. Thus, as per respondent No.2, there is no illegality and infirmity in the action of the respondents and
claims that the petition has no substance and deserves to be dismissed.
A reply on behalf of respondent No.3 has also been filed reiterating the stand as has been taken by respondent No.2 in his reply.
I have heard the arguments advanced by learned counsel for the petitioner at length and perused the record.
In view of the questions framed at the time of admission and also as per the arguments advanced by learned counsel for the petitioner, he has
attacked the orders impugned mainly on the point of jurisdiction saying that the same suffer from competence as the order passed by the Authority
terminating the services of the petitioner is not competent to do so. As contended by learned counsel for the petitioner that from the order of
appointment of the petitioner, it is clear that the petitioner was appointed by the Executive Council in view of the decision taken by them in its meeting
held on 08.05.2000 and thereafter, the order of confirmation was also passed in favour of the petitioner in pursuance to the decision of the Executive
Council made on 04.09.2003. As per learned counsel for the petitioner that from the order impugned dated 11.12.2006 (Annexure-P/11) it reveals that
the Chancellor had taken a decision in pursuance to the power provided to him under Section 12(4) of the Adhiniyam, 1973 and in paragraph-8 of the
order impugned, the Chancellor had recommended that the decision has been taken to annul the proceeding held on 08.05.2000 and in pursuance to the
said decision of the Chancellor, the Registrar of the University had issued an order terminating the services of the petitioner. As contended by the
petitioner that the matter was never placed before the Executive Council and, therefore, the decision taken by the Chancellor is without jurisdiction
and infact contrary to the requirement of Section 12(4) of the Adhiniyam, 1973. For the purpose of convenience, Section 12 (4) of the Adhiniyam,
1973 is being reproduced hereinbelow:-
“12.(4) The Kuladhipati may, by an order in writing, annul-
(a) any proceedings 1 [x x x] of any office, authority, Committee or body of the University, constituted by or under this Act, which is not in conformity with this Act,
the Statues, Ordinances or the Regulations, or
(b) any proceedings of any authority, Committee or other body which has been referred to him by the Kulpati under sub-section (7) of Section 15, if he is satisfied
that such proceedings are prejudicial to the interests of the University:
Provided that before making such order he shall call upon the officer, authority committee or body concerned to show cause why such an order should not be made
and if any cause is shown within the time specified by him in this behalf he shall consider the same.â€
On a bare perusal of sub-Section (4) of Section 12 of the Adhiniyam, 1973, it is clear that the Chancellor can annul the proceeding which is not in
conformity with the Act, the Statues, Ordinances or the Regulations or the proceeding which has been referred to him by the Kulpati under sub-
Section (7) of Section 15 of the Adhiniyam, 1973, if he is satisfied that such proceeding is prejudicial to the interest of the University. But here in this
case, as per counsel for the petitioner, no proceeding was ever referred to the Chancellor by the Kulpati as per the requirement of sub-Section (7) of
Section 15 of the Adhiniyam, 1973 and secondly, from the order impugned Annexue-P/11, it is not clear as to how, the proceeding of the Executive
Council held on 08.08.2005 was not in conformity with the Act, the Statutes, the Ordinances or the Regulations. As per counsel for the petitioner, from
the order impugned, it reflects that a circular was issued on 11.07.2005 by General Administration Department of the State of Madhya Pradesh
clarifying that the candidate of other State belonging to Scheduled Caste/Scheduled Tribe and O.B.C. cannot get the benefit of his caste or of that
certificate in the State of Madhya Pradesh. As per counsel for the petitioner, this circular is of the year 2005 and is not applicable upon the petitioner
because he was appointed on 08.05.2000 and got confirmed vide order dated 05.09.2003. As per the counsel for the petitioner, from a perusal of the
advertisement issued, it is clear that the same was issued at All India Level inviting applications from the candidates of all the States and, therefore,
the subsequent decision of the State Government and the circular issued at a later point of time, cannot be made basis for terminating the services of
the petitioner as he got appointed on the basis of certificate issued by the State of Bihar. As per counsel for the petitioner, so far as Articles 341 and
342 of the Constitution of India are concerned, those are also not applicable here in this case inasmuch as they relate to Scheduled Caste and
Scheduled Tribe but not in respect of O.B.C. Therefore, the foundation of the action of the Chancellor is also not proper. As per counsel for the
petitioner, the Executive Council was apprised about the alleged irregularity on the basis of which the decision of the Executive Council taken in the
meeting on 08.05.2000 was held to be illegal, the Executive Council even after re-scrutinizing, has given its opinion that nothing illegal was done in the
said meeting. During the course of arguments, learned counsel for the petitioner has drawn attention of this Court towards the reply filed by
respondent No.2 stating therein that the matter had been placed before the Executive Council in the meeting dated 08.01.2007 and then it has been
approved by the decision of the Chancellor but as per counsel for the petitioner, the said subsequent approval would not validate the order of the
Chancellor because vide order dated 05.01.2007, this Court directed the parties to maintain status quo and thereafter, this Court vide order dated
08.01.2007 stayed the operation of the orders Annexure-P/11 and Annexure-
Thus, the subsequent approval does not have any impact over the decision of the Chancellor. To reinforce his contention, the learned counsel for
the petitioner has placed reliance upon a decision reported on (2008) 1 MPLJ 577 parties being Kunal Kanti Majee Vs. Chancellor, Rani Durgawati
Vishvavidyalaya, Jabalpur.
Considering the overall aspect, I find force in the contention raised by learned counsel for the petitioner that the Chancellor can annul any
proceeding as per the contingency contained in sub-Section (4) of Section 12 of the Adhiniyam, 1973 but in view of the reasons assigned in the order
passed by the Chancellor as also in the show-cause notice issued on 08.08.2005 (Annexure-P/8), the contingency as mentioned in sub-Section (4)(a)
of Section 12 of the Adhiniyam, 1973 is totally misplaced. Admittedly, the decision of the Chancellor was never placed before the Executive Council
for its approval and as the petitioner was appointed by the Executive Council, therefore, his services could have been terminated by the Executive
Council only. The order of termination of the services of the petitioner was issued by the Vice-Chancellor on 26.12.2006 that too in pursuance to the
decision taken by the Chancellor on 11.12.2006, therefore, the decision for terminating the services of the petitioner passed by the Vice-Chancellor is
an order issued by an Incompetent Authority. The order issued by the Chancellor exercising power provided under sub-Section (4) of Section 12 of
the Adhiniyam, 1973 is also unreasonable, unjustified and that does not fulfil the requirement of section under which such power could be exercised.
The subsequent approval by the Executive Council on 08.01.2007 is also worthless because this Court had already directed the parties to maintain
status quo, therefore, the said approval if any, is contrary to the order and therefore, that is also illegal.
In view of the above, in my opinion, the orders impugned dated 11.12.2006 (Annexure-P/11) and 26. 12.2006 (Annexure-P/12) are not passed in
consonance with the requirement of sub-Section (4) of Section 12 of the Adhiniyam, 1973 and the Chancellor has exercised the power arbitrarily,
without any reasonable cause and contingency under which he could exercise the power. So far as the order terminating the services of the petitioner
is concerned, the Vice-Chancellor is not the competent Authority to issue such an order as the Appointing Authority of the petitioner is admittedly the
Executive Council.
In the result, the petition filed by the petitioner stands allowed and the orders impugned dated 11. 12.2006 (Annexure-P/11) and 26.12.2006
(Annexure-P/12) are hereby set aside. Since the interim relief was granted in favour of the petitioner and under the garb of the interim relief, the
petitioner has performed his duties, therefore, he is also entitled to get the benefit of all his monetary and consequential benefits treating him to be in
service even from the date of terminating his services.