Dr. Pramod Kumar Meher vs Chancellor, Utkal University And Others

Dr. B.R. Sarangi, J

The petitioner, who was selected and appointed as Professor, Computer Science and Application in the Utkal University, has filed this application

challenging the order dated 01.12.2001 of the Registrar, Utkal University, which was issued by order of the Vice-Chancellor, canceling his

appointment, as the Chancellor, in pursuance of the power under Section 5(10) of Orissa University Act, 1989, had set aside the proceedings of the

syndicate dated 28.02.1997 in accepting the recommendation of selection committee with regard to appointment of the petitioner; and further seeks for

direction to allow him to continue as per the selection held on 26.04.1996 in pursuance of the advertisement dated 22.02.1995 under Annexure-1 and

grant all consequential benefits as due and admissible to him in accordance with law.

The factual matrix of the case, in hand, is that the petitioner acquired M.Sc. degree in Physics with Electronics Specialization and M.Phil in the

same subject. Initially, he was appointed as Lecturer in Physics in G.M. College in the year 1981 and continued as such till 1989. From 1989 till April,

1993 he continued as a Lecturer in Govt. College, Rourkela, after being transferred from G.M. College. While so continuing, he was duly selected and

posted as Reader in Electronics Science. An advertisement vide Annexure-1 dated 22.02.1995 was issued by the Utkal University in inviting

applications from the eligible candidates for filling up of various posts, including the post of Professor in the P.G. Department of MCA, while the

petitioner was continuing as Reader in Electronics Science in Berhampur University. Pursuant to such advertisement, the petitioner submitted his

application and, after due scrutiny, he was called for and attended the interview and duly selected by the selection committee. Consequentially,

appointment letter was issued on 01.03.1997 in Annexure-4, pursuant to which he joined on 22.03.1997 and his joining report was duly accepted by the

authority. While continuing in service, after completion of probation period of two years, he was confirmed in the post of Professor in MCA and also

granted necessary increments as per the provisions of ORSP Rules, i.e., on 22.03.1998, 22.03.1999, 22.03.2000, 22.03.2001 vide office order dated

16.07.2001. At that juncture, Chancellor of Utkal University issued a show cause notice to the Registrar under the provisions of Section 5(10) of the

Orissa Universities Act, 1989 (for short “the Act, 1989â€), vide letters dated 07.08.1998 and 28.07.2001, regarding irregularities committed in the

selection to the post of Professor, Computer Science and Application held on 26.02.1997. On perusal of the detailed reply to the show cause notice,

the Chancellor, in exercise of the power conferred under Section 5(10) of the Act, 1989, passed an order on 26.11.2001 setting aside the relevant

proceedings of the syndicate dated 28.02.1997 accepting the recommendation of selection committee for appointment of the petitioner as Professor of

Computer Science and Application. As a consequence thereof, all the orders relating to appointment of the petitioner have been cancelled with

immediate effect. By order of the Vice Chancellor, the Registrar communicated the same on 01.12.2001 to the petitioner. Hence this application.

Mr. H.S. Mishra, learned counsel appearing for the petitioner contended that the order under Annexure-7 dated 01.12.2001 so communicated to the

petitioner is without jurisdiction inasmuch as the same is violative of principles of natural justice. It is further contended that once the service of the

petitioner has been confirmed, after completion of the probation period, if any action is taken prejudice to his interest for continuance in service, the

minimum requirement of law is that principles of natural justice should be followed. The same having not been done, the entire action is arbitrary,

unreasonable and violative of principles of natural justice, for which the same should be set aside. It is further contended that the order in question has

been passed by an authority, who is not competent to do so, inasmuch as, the order impugned itself indicates that by order of Vice-Chancellor the

Registrar has communicated the same under the Act, 1989 and statute framed thereunder. The Vice- Chancellor has no authority to cancel the

appointment of the petitioner as the Professor of MCA, in view of the fact that the syndicate, being the competent authority, has to pass the order of

cancellation of appointment of the petitioner. In view of the such position, it is argued that the order so passed by the authority in Annexure-7 dated

01.12.2001 is to be set aside and the petitioner is to be extended all the benefits as due and admissible to him in accordance with law. It is further

contended that by virtue of the interim order passed by this Court the petitioner has been allowed to continue in service and as such, in the meantime

he has attained the age of superannuation and after being superannuated from service, any order remains as it is, may cause prejudice to him.

Therefore, the formal order of setting aside the order of dismissal should be passed so that the petitioner’s service be regularized to get all

consequential benefits as due and admissible to him in accordance law.

Mr. O.N. Devdas, learned counsel for opposite party no.1 contended that the Chancellor has got jurisdiction to pass an order cancelling or annulling

the decision taken by the syndicate pursuant to power vested on him under Section 5(10) of the Act, 1989. Once the proceedings of syndicate dated

28.02.1997 have been set aside in exercise of power conferred under Section 5(10) of the Act, 1989, the consequential order is to follow, meaning

thereby, the appointment of the petitioner, which was made pursuant to such decision of the syndicate, has to be cancelled. As such, the Chancellor

has not committed any illegality or irregularity by passing such order, so as to call for interference by this Court at this stage.

Mr. K.P. Nanda, learned counsel for opposite parties no. 2 and 3 contended that the petitioner, by the time submitted his application, did not possess

the minimum qualification of Ph.D., and therefore, the recommendation made by the selection committee was contrary to the advertisement.

Consequentially, when the Chancellor considered the recommendation made by the selection committee and found that the petitioner did not possess

the minimum requisite qualification of Ph.D, in exercise of power conferred under Section 5(10) of the Act he cancelled the appointment of the

petitioner. Pursuant thereto, by order of the Vice-Chancellor, the Registrar, vide impugned order in Annexure-7 dated 01.12.2001, communicated the

same to the petitioner. Thereby, no irregularity or illegality has been committed by the authority concerned and in such a case compliance of principle

of natural justice is not required. If the initial appointment was made contrary to the conditions stipulated in the advertisement itself, as such the

petitioner has no right to continue in the post; and on consideration of the same if the authorities have cancelled such appointment, they are well

justified in their action, which does not require any interference by this Court at this stage. In support of his contention, he has relied upon the judgment

of the apex Court in Ashok Kumar Sonkar v. Union of India, (2007) 4 SCC 54.

This Court heard Mr. H.S. Mishra, learned counsel for the petitioner; Mr. O.N. Devdas, learned counsel for opposite party no.1; and Mr. K.P.

Nanda, learned counsel for opposite parties no. 2 and 3. Pleadings having been exchanged between the parties and with the consent of the learned

counsel for the parties, this writ petition is being disposed of finally at the stage of admission.

Section 5(10) of the Orissa Universities Act, 1989, which is relevant for proper adjudication of the case, reads thus:-

“5(10). The Chancellor may, by order in writing annual any proceeding of the Senate, Syndicate, Academic Council or any other authority which is not in

conformity with this Act, the Statutes, The Regulations or the directions issued under subsection (9): Provided that before making any such order he shall call

upon the authority concerned to show cause as to why such an order should not be made and if any cause is shown within a reasonable time, he shall, after giving

an opportunity of hearing if so deemed proper, consider the same.â€​

In the case at hand, an advertisement was issued by opposite party no.3, vide Annexure-1 dated 22.02.1995, to fill up various vacancies, including the

post of Professor in the P.G. Department of MCA. The last date of submission of application was fixed to 25.03.1995. The desirable qualification for

the post of Professor of MCA was as follows:-

“A first class degree at Master’s level in Computer Science/Engineering/Physics/Mathematics with Ph.D or equivalent research work in Computer

Science.â€​

Subsequently, a corrigendum to the advertisement dated 22.02.1995 was issued on 18.08.1995 with an addition to the essential qualification for the

post of Professor which reads as follows:-

“Under essential qualification for the post of Professors the following lines be added after the word ‘Institution’

“Including experience of guiding research at doctoral level

OR

An outstanding scholar with established reputation who has made significant contribution to knowledge.â€​

The petitioner applied for the post of Professor for MCA having first class degree at Master level in Physics. By the time he applied for the post, he

did not possess Ph.D qualification but he had got equivalent research work in computer science. As per advertisement in Annexure-1, the desirable

qualification itself indicates that for the post of Professor of MCA, a candidate should have possessed first class degree at Master’s level in

Computer Science/Engineering/Physics/ Mathematics with Ph.Do r equivalent research work in Computer Science. The corrigendum dated

18.08.1995 also requires “or an outstanding scholar with established reputation who has made significant contribution to knowledge.†A conjoint

reading of the advertisement dated 22.02.1995 read with corrigendum dated 18.08.1995 would reveal that the petitioner had satisfied the requirement

of desirable qualification for the post of Professor. Therefore, the selection committee, which was constituted under the provisions of the Act, 1989,

entertained the application of the petitioner, considered his case for selection and finally selected him and recommended his case for appointment. On

the basis of such recommendation, the appointment letter was issued in favour of the petitioner, pursuant to which he joined in service. After

completion of probation period of two years, he was confirmed in the post and thereafter he also continued for another two years as confirmed

professor. But all on a sudden on 01.12.2001, his appointment was cancelled by order of the Vice-Chancellor, as communicated by the Registrar.

Needless to say that while canceling the appointment of the petitioner, the University authorities have not complied with the principles of natural

justice. Therefore, it has been mentioned in the impugned order that since the Chancellor in exercise of power under Section 5(10) of the Act set aside

the proceeding of the syndicate dated 22.08.1997, by which recommendation was made for appointment of the petitioner as Professor in Computer

Science and Application, consequentially all the orders relating to the appointment of the petitioner have been cancelled. There may be an internal

communication between the Chancellor and Vice-Chancellor, but before taking any action, which may be punitive in nature, the authority should have

complied with the principles of natural justice in its letter and spirit, particularly when the petitioner, after being confirmed, had already acquired a right

to continue in the post. If any action is proposed to be taken against a confirmed employee, in that case, minimum requirement of law is that

compliance of principle of natural justice has to be followed.

The soul of natural justice is ‘fair play in action’. In Maneka Gandhi v. Union of India, (1978) 1 SCC 24, the Hon’ble Justice P.N.

Bhagwati, J, as his lordship then was, has countered natural justice with ‘fair play in action’.

In HK (An Infant) in re, (1967) 1 All ER 226 (DC), Lord Parker, CJ, preferred to describe natural justice as ‘a duty to act fairly’.

In Fairmount Investment Ltd. v. Secretary of State of Environemnt, (1976) 2 All ER 865 (HL), Lord Russel of Kilowen described the natural justice

as ‘a fair crack of the whip’.

In R. V. Secretary of State for Home Affairs, (1977) 3 All ER 452 (DC & CA), Geoffery Lane, LJ, in defining the natural justice used the phrase

‘common fairness’.

Therefore, natural justice, which is a common sense justice, is the name of those principles which constitute the minimum requirement of justice and

without adherence to which justice would be travesty. Natural justice accordingly stands for that fundamental quality of fairness which being adopted,

justice may not only be done but also appears to be done.

In Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 81, the apex Court considered the meaning of ‘natural justice’ to the following

effect:-

“The phrase is not capable of a static and precise definition. It cannot be imprisoned in the straight-jacket of a cast-iron formula. Historically, “natural

justice†has been used in a way “which implies the existence of moral principles of self-evident and unarguable truthâ€, “Natural Justice†by Paul

Jackson, 2nd Ed., Page 1. In course of time, judges nurtured in the traditions of British jurisprudence, often invoked it in the conjunction with a reference to

“equity and good conscienceâ€. Legal experts of earlier generations did not draw any distinction between “natural justice†and “natural lawâ€.

“Natural justiceâ€​ was considered as “ that part of natural law which relates to the administration of justice.â€​

In Bhagawan v. Ramchand, AIR 1965 SC 1767, the apex Court held that the rule of law demand that the power to determine questions affecting

rights of citizens would impose the limitation that the power should be exercised in conformity with the principles of natural justice.

In Sukdev Singh v. Bhagatram, AIR 1975 SC 1331, the apex Court held that whenever a man’s rights are affected by decisions taken under

statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice.

In State of U.P. V. Vijay Kumar Tripathy, AIR 1995 SC 1130, the apex Court further held that it is important to note that the normal rule that

whenever it is necessary to ensure against the failure of justice, the principles of natural justice must be read into a provision. Such a course is not

permissible where the rule excludes expressly or by necessary intendment, the application of the principle of natural justice, but in that event the

validity of that rule may fall for consideration.

In Swadeshi Cotton Mills (supra)¸ the apex Court held as follows:

“Principles of natural justice are principles ingrained into the conscience of men. Justice being based substantially on natural ideals and human values, the

administration of justice here is freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic

technicalities and grammatical niceties. Principles/rules of natural justice are not embodied principles/rules. Being means to an end and not an end in them, it is

not possible to make an exhaustive catalogue of such rules (Principles).

In Nagarjuna Construction Company Limited v. Government of Andhra Pradesh, (2008) 16 SCC 276, the apex Court held that over the years by a

process of judicial interpretation two rules have been evolved as representing the fundamental principles of natural justice in judicial process including

therein quasi-judicial and administrative process, namely, an adjudicator should be disinterested and unbiased (nemo judex in causa sua) and that the

parties must be given adequate notice and opportunity to be heard (audi alteram partem). They constitute the basic elements of a fair hearing, having

their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by

all men.

Therefore, principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of

the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order

affecting those rights. These rules are intended to prevent such authority from doing injustice. The supreme Court has time and again equated the

principles of natural justice with fairness in action, therefore, the Court has insisted upon not so much to act judicially but acting fairly, justly,

reasonably and impartially.

In D.K. Yadav V. J.M.A. Industries Ltd. (1993) 3 SCC 259 the apex Court insisted that in arriving at a decision, the procedure adopted must be

just, fair and reasonable in the particular circumstances of the case. Therefore, it is further held that the order of termination of the service of an

employee visits him with civil consequences of jeopardizing not only his livelihood but also career and livelihood of dependents. Therefore, before

taking any action putting an end to the tenure of an employee, fair play requires that a reasonable opportunity to put forth his case is given and

domestic enquiry conducted complying with the principles of natural justice.

Applying the above principles of law, as laid down by the apex Court, to the present case, no doubt the Chancellor has exercised the power under

Section 5(10) of the Act, 1989 and annulled the proceedings of the syndicate dated 28.02.1997, four years after, by passing an order on 01.12.2001.

By that time, a right had already been accrued in favour of the petitioner, as on completion of probation period he had already been confirmed in

service. The contention raised, that the petitioner had no requisite qualification at the time of filing of the application, has no force, as Ph.D.

qualification was not the only requirement of the advertisement, as discussed above. If the petitioner had got the equivalent qualification and on that

basis he got selected, it cannot be ipso facto said that an illegality has been committed. The petitioner had acquired Ph.D. qualification before the

interview was conducted by the selection committee. In any case, it cannot be construed an illegality, because the petitioner had satisfied the other

requirements of the advertisement and consequential corrigendum issued by the authority with regard to desirable qualification of the candidates.

Much reliance has been placed by the learned counsel appearing on behalf of opposite parties no.2 and 3 on the judgment rendered in the case of

Ashok Kumar Sonkar (supra), in paragraph 34 of which the apex Court has held as follows:-

“It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularized. The Court may not take

serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of law,

which renders the appointment to be a nullity.â€​

It has therefore been contended by learned counsel appearing on behalf of opposite parties no.2 and 3 that the petitioner, having no requisite

qualification of Ph.D., has been appointed illegally and thereby the impugned order passed by the Chancellor in exercise of power under Section 5(10)

of the Act, 1989 is wholly justified. The facts of the case of Ashok Kumar Sonkar (supra) are absolutely different from that of the present one and as

such the judgment rendered in the said case is distinguishable taking into consideration the desirable qualification condition stipulated in the

advertisement itself. If the petitioner satisfies the other desirable educational requirements stipulated in the advertisement as well as its corrigendum, it

cannot be said that appointment of the petitioner was illegal.

In the advertisement itself the desirable qualification for the post of Professor, MCA has been mentioned as first class degree at Master’s

level in Computer Science/Engineering/Physics/Mathematics with Ph.D.o r equivalent research work in Computer Science. The word ‘or’ is

clearly disjunctive and as such the word ‘or’ does not generally mean ‘and’ and the word ‘and’ does not generally mean

‘or’, as has been held by the apex Court in Nasiruddin v. State Transport Appellate Tribunal, AIR 1976 SC 331, which has also been followed

by the apex Court in Municipal Corporation of Delhi v. Tek Chand Bhatia, AIR 1985 SC 741. In Union of India v. Ind-Swift Laboratories Ltd.,

(2011)4 SCC 635 the apex Court held where provision is clear and unambiguous the word ‘or’ cannot be read as ‘and’ by applying the

principle of reading down.

Similarly, the corrigendum issued by the opposite parties also indicates using the words “or an outstanding scholar with established reputation

who has made significant contribution to knowledgeâ€. Thereby, the selection committee, while considering the application of the petitioner for

selection to the post of Professor, has taken into consideration the equivalent research work in computer science and an outstanding scholar with

established reputation who has made significant contribution to knowledge, pursuant to the advertisement dated 22.02.1995 and corrigendum dated

18.08.1995, and selected the petitioner to the post of Professor of MCA and after four years of such selection the Chancellor could not have passed

such an order annulling the recommendations made by the selection committee without due compliance of the principles of natural justice. More so, if

the Chancellor has annulled such decision, then a duty casts upon the authority concerned to give an opportunity of hearing to the petitioner before

taking such action of cancelling his appointment. Thereby, action taken straightaway cancelling the appointment of the petitioner by communicating

Annexure-7 dated 01.12.2001 cannot have any justification and cannot sustain in the eye of law and is liable to be set aside.

Apart from the above, on perusal of order-sheets of this case it appears that the impugned order was passed on 01.12.2001 and the petitioner had

approached this Court immediately on 03.12.2001, when this Court passed an interim order in misc. case no. 16028 of 2001 to the following effect:-

“It is submitted by Shri Routray, learned counsel for the petitioner, that the service of the petitioner is going to be terminated basing on the decision of the

Chancellor which was made without giving an opportunity of hearing to the petitioner.

We, therefore, direct that the service of the petitioner may not be terminated till 12.12.2001.

Put up for further orders on 11.12.2001.â€​

Thereafter, by order dated 11.12.2001 this Court directed as follows:-

“Heard counsel for both sides.

Though learned counsel for the petitioner has produced Annexure-7 order, we think that in the interest of justice, we should scrutinize the order passed by the

Chancellor on 26.11.2001, referred to in Annexure-7 and until then status quo should continue. In that view, the interim order dated 3.12.2001 will continue for

one month from today. Learned counsel for the University will make available to us the relevant files and relevant order for our perusal on the next date of

hearing.

Put up this matter on 9.1.2002.â€​

But the University authorities could not produce the relevant file and asked for time, as a consequence of which by order dated 10.01.2002 this Court

granted four weeks time for production of the relevant file, and interim order was allowed to continue. On 12.02.2002, on behalf of the Chancellor

time for two weeks was sought for and granted to file counter affidavit and production of the file, and interim order was allowed to continue till

07.03.2002. Thereafter, this Court extended the interim order from time to time, i.e., on 05.03.2002 and 22.03.2002.

During pendency of this writ application the petitioner was selected as Professor, Computer and System Sciences by Visva-Bharati University

and, therefore, by order dated 26.03.2002 passed in misc. case no. 3543 of 2002 this Court directed the University authorities to enable the petitioner

to join at Visva-Bharati University on or before due date and also clarified that the University is free to fill up the post held by the petitioner, but that

would be subject to the conditions mentioned therein, and thereby modified the interim order dated 03.12.2001.

Subsequently, when the petitioner got an opportunity to go for a research fellowship under Nanyang Technological University, Singapore for a

period of two years, this Court, vide order dated 19.09.2002 passed in misc. case no. 8002 of 2002, directed that the University authorities would allow

the petitioner to join as Professor, Computer Science and Application in Utkal University in case the petitioner succeeded in the writ petition and in the

meantime the petitioner might join as Research Fellowship at Nanyang Technological University, Singapore and complete the said fellowship for a

period of two years. This Court also observed that all efforts would be made by the Court to dispose of the writ application within a period of two

years. The petitioner, thereafter, filed misc. case no. 1585 of 2004 with a prayer to allow him to join as Senior Fellow in Nanyang Technological

University, Singapore for two years, which was allowed by order dated 02.12.2004 subject to the condition that in the event the petitioner succeeded in

the writ application, he would be allowed to join in his former post as Professor of Computer Application in Utkal University.

On 02.08.2018, this Court directed learned counsel appearing for the University to come with the application form of the petitioner along with

documents annexed therein for proper appreciation of the factual aspects in order to reach to the rightful conclusion with respect to the issue raised in

this writ application. On 19.11.2018, though in compliance of the order dated 02.08.2018 the documents were filed by way of a memo, but this Court

was not prima facie satisfied and therefore passed the following order:-

“Heard Mr.H.S.Mishra, learned counsel for the petitioner, Mr.K.P.Nanda, learned counsel appearing for Utkal University and Mr.O.N.Devdas, learned counsel

for the Chancellor, Utkal University.

In compliance of the order dated 02.08.2018, learned counsel for opposite parties no.2 and 3 files a memo enclosing therewith certain documents in Court today.

The same be kept on record.

This Court prima facie is not satisfied with the documents produced before this Court by learned counsel for opposite parties no.2 and 3. Therefore, this Court

directs learned counsel for opposite party-University to produce entire selection file so as to reach the conclusion that while taking action against the petitioner,

principle of natural justice has been followed or not.

Put up this matter after one week.â€​

When the matter is taken up 03.01.2019, the opposite parties, in compliance of order dated 19.11.2018, did not produce the documents/entire selection

file as required by this Court in order to reach at the rightful conclusion as to whether, while taking action against the petitioner, principles of natural

justice had been followed or not.

The narrations made above would indicate, though a consistent effort has been made by this Court to procure the relevant file dealing with the

recommendation made by the selection committee, consequent upon which the Chancellor passed the order cancelling appointment of the petitioner,

but for the reason best known, the opposite parties have not produced the same. Therefore, an adverse interference can be drawn for non-production

of the relevant file for just and proper adjudication of the case. Since it is an old case of the year 2001 and in the meantime 17 years have passed, and

after completion of his fellowship at Singapore the petitioner had been allowed to resume his duty at Utkal University and in the meantime he has been

retired from service on attaining the age of superannuation, pendency of this case would cause difficulty in finalizing the retiral benefits as due and

admissible to the petitioner in accordance with law. In such view of the matter, this Court is of the considered view that since the petitioner has

already rendered service till attaining the age of superannuation by virtue of the interim order passed by this Court, which has been subsequently

modified permitting the petitioner to go for fellowship and research fellowship, and after completion of his tenure the petitioner has resumed as

Professor in the opposite party-University, this ipso facto indicates that the order of this Court has been complied with by the petitioner and also the

opposite parties. Therefore, at this stage if any order adverse to the interest of the petitioner is passed, that will cause prejudice to him. Therefore, in

the interest of justice, equity and fair play, this Court is of the considered view that the order impugned in Annexure-7 dated 01.12.2001, as observed

above, cannot sustain in the eye of law and is liable to be set aside and accordingly the same is hereby set aside. Consequentially, the petitioner shall

be entitled to get all consequential service benefits, as due and admissible in law, which shall be computed by the University authorities within a period

of three months so as to settle the issue for all time to come.

The writ petition is thus allowed. No order to costs.