Neeraj Kumar Dhuliya vs Dr. Rajesh Kumar Adana & others

K.M. JOSEPH, C.J. (ORAL)

Petitioner has approached this Court seeking the following reliefs:

“(i) Issue a writ, rule, order or direction in the nature of Quo Warranto asking to respondent no. 1 under which authority of law, he is holding the

post of Registrar of Uttarakhand Aayurveda University, as, on the date of appointment, the respondent no. 1 was neither eligible / competent for the

post of Registrar, nor he possess the minimum qualification as prescribed for the post of Registrar under the relevant provisions of the Uttarakhand

Aayurveda University Regulations 2015 and the direction issued by ministry of Human resource and UGC in this regard.

(ii) Issue a writ, rule, order or direction in the nature of Quo Warranto asking to respondent no. 1 under which authority of law he had joined on the

post of Deputy Registrar and hold the post of Deputy Registrar of Uttarakhand Aayurveda University, as, the appointment of respondent no. 1 on the

post of Deputy Registrar is ipso facto illegal, moreover the respondent no. 1 was neither eligible / competent for the post of Deputy Registrar, nor he

possess the minimum qualification as prescribed for the post of Registrar / Deputy Registrar under the relevant provisions of the Uttarakhand

Aayurveda University Regulations 2015 and the direction issued by ministry of Human resource in this regard.

(iii) Issue a writ, rule, order or direction in the nature of mandamus commanding and directing the respondent no. 3 to remove the respondent no. 1

from the office of Registrar / Deputy Registrar, forthwith as the respondent no. 1 is holding the office of Deputy Registrar and is still in charge of

Registrar of the Uttarakhand Aayurveda University, without any authority of law or without possessing the minimum requisite qualification as

prescribed under the law for the aforesaid post.

(iv) Issue writ order or direction in the nature of certiorari quashing the order dated 11.07.2017 whereby the charge of the Deputy Registrar was given

to the respondent no. 1 (who is not eligible as per the norms of the UGC) and the order dated 24.03.2018 whereby the additional charge of the

Registrar was given to the respondent no. 1.

(v) Issue a writ order or direction in the nature of certiorari calling for the entire record relating to the appointment of the respondent no. 1 (Dr. Rajesh

Kumar) on the post of deputy registrar and registrar.

(vi) Issue a writ order or direction in the nature of certiorari quashing the order dated 24.01.2018 passed by the State Government whereby the 80

Medical officers were attached to the University until further order by the State Government due to which health services of hill areas are badly

affected.

(vii) Issue a writ order or direction in the nature of mandamus directing the respondent no. 2, 4 and 7 to initiate selection procedure for the post of

administrative cadre and teaching cadre in the University forthwith in accordance to the relevant rules and regulations framed in this regard.â€​

Learned counsel for the petitioner, in fact, pressed relief nos. 1, 2, 3 & 5.

This is a writ petition filed in purported public interest jurisdiction. Briefly put, the case of the petitioner is as follows:

(i) He is a social worker. He is fully involved in welfare and strengthening of society and is a public spirited person. The Uttarakhand Ayurveda

University came into existence vide the Act of 2009. Certain amendments were carried out in 2014. The University has framed Regulations.

Annexure No. 3 purports to be the relevant portion of the Regulations of 2015 and, according to the same, the educational qualifications and salary for

the post of administrative cadre shall be as per the norms and criteria prescribed by the UGC / Ministry of Human Resource Development. The

administrative cadre embraced within itself the posts like Deputy Registrar, Assistant

Registrar, Librarian, Assistant Librarian, etc. The Ministry of Human Resource Development, by order dated 31.12.2008, prescribed minimum

qualification for the posts of Registrar and Deputy Registrar, INTERÂ ALIA. In regard to the post of Deputy Registrar, it is mentioned as follows:

“(c) The minimum qualifications for direct recruitment to the post of Deputy Registrar and equivalent posts shall be a Master’s Degree with at

least 55% of the marks or its equivalent grade of ‘B’ in the UGC 7 point scale; along with-

(i) Nine years’ of experience as Assistant professor in the AGP of Rs. 6000 and above with experience in educational administration, or

(ii) Comparable experience in research establishment and / or other institutions of higher education, or

(iii) 5 years’ of administrative experience as Assistant Registrar or in an equivalent post.â€​

(ii) The posts of Examination Controller and Deputy Registrar were lying vacant in the University since a long time. Vide Annexure No. 5 dated

25.05.2017, the University sent a proposal to the Government to fill-up the aforesaid posts. Thereafter, the University issued an Advertisement to fill-

up the post of Deputy Registrar. The first respondent, who is a Medical Officer at district Pauri Garhwal, did not apply because he was not eligible.

Respondent No. 1 was appointed as Medical Officer and was posted at district Pauri Garhwal vide Annexure No. 7 appointment order dated

20.08.2013. He did not apply for the post of Deputy Registrar because he did not have the qualification. Vide Annexure No. 8 dated 30.06.2017, the

Deputy Secretary of Ayush and Ayush Shiksha Anubhag issued an order directing the Registrar to accomplish all the formalities to appoint the first

respondent to the post of Deputy Registrar. Letter dated 30.06.2017 is stated to be in violation of the order of this Court passed in Writ Petition (S/S)

No. 123 of 2015. It is the further case of the petitioner, INTER ALIA, that, after receiving the direction from the Government, the Registrar wrote a

letter to the Deputy Secretary, Ayush and Ayush Shiksha Anubhag, mentioning that Regulation 36(2) of the University provides that appointment /

deputation /in-charge posting / absorption on the posts of Deputy Registrar, etc. is to be made on the basis of the recommendation of the selection

committee. Clarification was sought. However, the Deputy Secretary directed the Registrar to accomplish all formalities to appoint the first

respondent.

This was done by letter dated 30.06.2017. It is alleged that, vide Annexure No. 10, the first respondent gave joining in the office of the Registrar to

join on the post of Deputy Registrar. There is reference to Annexure No. 12 dated 11.07.2017, which is one of the impugned orders,

English translation of which reads as follows:

“Dated 11.07.2017

Certificate of Charge

In compliance of the letter no. 1249/xxxx/2017/2011 dated 29 June 2017 isued by Ayush Avam Ayush Education Department Uttarakhand

Government and pursuant to the joining report dated 10.07.2017 submitted by Dr. Rajesh Kumar Medical Officer, Govt. Ayurvedic Hospital Jashpur

Khal, Pauri Garhwal, conditional permission is granted for joining on the post of Deputy Registrar in Uttarakhand Ayurved University Dehradun purely

on temporary arrangement subject to the final decision of the State Government.

(Prof. Anoop Kumar Ghakhar)

Registrarâ€​

(iii) It is alleged that respondent No. 1 managed his joining on the post of Deputy Registrar by making political pressure on the officials of the

University and undue influence on the State Government. It is stated that, in view of the media reports, the Government gave charge of Registrar to

the Additional Secretary, Ayush, on 19.03.2018; but, respondent No. 1 managed it to be cancelled. The Government, thereafter, gave additional charge

of Registrar to respondent No. 1 vide Annexure No. 14 order dated 24.03.2018 (yet another impugned order). Thereafter, it is alleged in paragraph 26

of the writ petition as follows:

“26. That it is submitted here that ignoring the provision of the Act 2009 as amended in the year 2014, the respondent no. 1 has taken the charge of

the deputy registrar without any authority of law, whereas the respondent no. 1 does not fulfills the required qualification and eligibility criteria to be

appointed as deputy registrar as such he cannot be given the charge of the registrar of the University.â€​

In the counter affidavit filed on behalf of respondent Nos. 1, 2 & 7, it is, INTER ALIA, stated as follows:

“2(b)   The Writ Petition (PIL) above mentioned is also not maintainable and deserves to be dismissed at the admission stage itself, as the

petitioner does not have any locus to file the present Writ Petition (PIL), as the petitioner is highly interested person, as the petitioner’s brother and

brother’s wife who was a representative of M/s Dhanwantari Vaidyashala, who was having MOU with the respondent University, and as per

MOU a place was given to above Vaidyashala in the campus. Petitioner was running canteen in same place, after the services of the representative

were dispense with but the petitioner and his relatives were still illegally occupying the premises of the respondent University despite clear instruction

to vacate the same. In order to put pressure on the respondents the present PIL was filed. However, finally respondent University had resort to police

help for evicting the petitioner, which was challenged before this Hon’ble Court and finally the said writ petition

107 of 2018 (M/S) was dismissed by this Hon’ble court.â€​

It is also stated in the counter affidavit that the appointment of respondent No. 1 is a pure stop-gap arrangement, even though he is fully qualified. It

is also alleged that the Uttarakhand Ayurveda University is a State University and, as such, is governed by the Uttarakhand State University

(Centralized) Service Regulations,2006 and the temporary arrangement is in consonance with the Rules. It is stated in paragraph 4 and 9 as follows:

“4. That the Uttarakhand Ayurveda University, Dehradun is a State University as such governed by “UTTARAKHAND STATE

UNIVERSITY (CENTRALIZE) SERVICE REGULATION, 2006 and the temporary arrangement is in consonance with the rules. Moreover, the

respondent no. 01 is qualified for the post of Deputy Registrar as per the rules and regulation. Finance Secretary State of Uttarakhand while

determining the pay scale has clearly stated that in State Universities appointment and salary are not as per UGC regulations but as per the

UTTARAKHAND STATE UNIVERSITY (CENTRALIZE) SERVICE REGULATION, 2006. True         and correct copy of

relevant portion of “UTTARAKHAND STATE UNIVERSITY (CENTRALIZE) SERVICE REGULATION, 2006 and Order of Finance

Secretary State of Uttarakhand stating that in State Universities appointment and salary are not as per UGC regulations but as per the

UTTARAKHAND STATE UNIVERSITY (CENTRALIZE) SERVICE REGULATION, 2006 are marked hereby and annexed as ANNEXURE

NO.CA-02 and ANNEXURE NO. CA-03.

That the contents of paragraph no. 06 of the petitioner needs no comment being matter of record. However, it is clarified that The State

Government may deput/post/ appoint a officer on the post of Registrar as per prescribed qualification and pay scale of the UGC. But, in state of

Uttarakhand UTTARAKHAND STATE UNIVERSITY (CENTRALIZE) SERVICE REGULATION, 2006 is followed and qualification and pay

scale as per the above regulation. Even the Finance secretary has refused to give UGC pay

scale in state universities.â€​

In regard to the allegation made in paragraph 14 of the writ petition, it is stated that the posting is temporary. It is further stated that, in fact, serious

charges of corruption are on the petitioner and others for which a high level inquiry committee is working and the present writ petition is nothing but to

stop the investigation.

Petitioner has filed a rejoinder affidavit. There are various allegations, which are raised. In regard to paragraph 2(b) of the counter affidavit, this is

what the petitioner has stated in the rejoinder affidavit:

“6. That the contents of paragraph no. 2(b) of the counter affidavit are totally wrong and misconceived, hence denied vehemently. So far as locus

of petitioner is concern, no law or statute put any bar or prevent the petitioner to make complaint against illegality or raise the voice against any illegal

activity or appointment. So far as allegation labeled in the paragraph under reply is concern, the petitioner has no concern with them. The petitioner is

neither running any canteen in the campus nor he is any illegal occupation of any premises of University. The answering respondent is making false

and bald allegations just to mislead this Hon’ble Court and in support of his allegations, he has not filed any document alongwith its counter

affidavit.â€​

It is further stated in paragraph 8 of the rejoinder affidavit as follows:

“8. That the contents of paragraph no. 3 of the counter affidavit are false and misconceived, hence denied vehemently. It appears from the perusal

of the alleged complaint filed by the respondent no. 1 that it is filed just to pressurize the petitioner and to frustrate the cause raised by the petitioner.

The respondent no. 1 just to carry out their ulterior motives, used the period of filing the counter affidavit to making the documents against the

petitioner so that it may be pose that the petitioner is not the public spirited person. It is submitted that the petitioner has filed this writ petition in the

month of April 2018. Prior to April 2018, the respondent no. 1 has no problem with the petitioner but after the filing of present writ petition, the

respondent no. 1 fabricated the false document, just to give different colour to the issue involved in the writ petition.â€​

We have heard Mr. U.K. Uniyal, learned Senior Counsel assisted by Mr. Yogesh Pacholia, Advocate for the petitioner. We have also heard Mr.

A.S. Rawat, learned Senior Counsel assisted by Mr. Suyash Pant, Advocate for respondent Nos. 1, 2 & 7. Respondent No. 2, in fact, it may be noted,

is the University and respondent No. 7 is the Vice Chancellor. We also heard Mr. S.S. Chauhan, learned Deputy Advocate General appearing for the

State.

Learned Senior Counsel for the petitioner would reiterate that this is a clear case, where the appointment of the first respondent is contrary to the

statutory provisions and the writ of quo warranto would lie. According to him, in terms of the regulations, the qualification in respect of the post of

Deputy Registrar is as prescribed by the UGC and the first respondent does not fulfill the qualification. He would submit that, however, the State

Government has taken interest in the matter and seen to it that the first respondent is appointed. This is impermissible.

Learned Senior Counsel appearing for respondent Nos. 1, 2 & 7 would submit that the writ petition must not be considered for which he,

apparently, relies on the case set-up in paragraph 2(b) of the counter affidavit, namely, the personal interest of the petitioner in the matter. Learned

Senior Counsel would also emphasise the nature of the arrangement, which was necessitated, as the recruitment process has been set in motion by

issuing Advertisement, but it has not yet yielded result and, therefore, there had to be an arrangement. It is, under this arrangement, that the first

respondent is placed in the helm of affairs of the University, first, by posting him as the Deputy Registrar, and, thereafter, by giving him additional

charge as the Registrar. This cannot invite the quo warranto jurisdiction, it is submitted. Learned Senior Counsel would also emphasise that, as far as

the qualification goes, the qualification is as per the centralized rules of 2006 framed by the Uttarakhand Government. He would emphasise that, once

qualification as provided by the UGC is provided for, they would be entitled to the benefit of higher emoluments. It is submitted that there was some

confusion and the earlier Advertisement, which was issued, was rescinded and a new Advertisement has been put in the website.

It would be profitable that we refer to some decisions relating to the writ of quo warranto. Be it at once noted that the learned counsel for the

petitioner (Mr.Yogesh Pacholia) pressed relief nos. 1 & 2, which related to writ of quo warranto, and also relief nos. 3 & 5. As far as the writs of

mandamus and certiorari are concerned, being a Public Interest Litigation, the matter would be in the region of service matter and we would refuse to

even consider the same.

It is quite settled that, in Public Interest Litigation, locus standi is available to any person to seek a writ of quo warranto. See in this regard the

judgment of the Apex Court in Rajesh Awasthi vs. Nand Lal Jaiswal & others, reported in (2013) 1 SCC 501. Therein, writing a concurring judgment,

Justice Dipak Misra, as His Lordship then was, has proceeded to hold, INTER ALIA, as follows:

“31. From the aforesaid pronouncements, it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a

relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the

same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Kashinath G. Jalmi vs.

Speaker [(1993) 2 SCC 703].

While it is true that this is the position, we may also refer to a judgment of the Apex Court in B. Srinivasa Reddy vs. Karnataka Urban Water

Supply & Drainage Board Employees’ Assn. & others, reported in (2006) 11 SCC 731(II). Therein, the Apex Court, INTER ALIA, held as

follows:

“The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been

made out for issuance of a writ of quo warranto. The writ of quo warranto does not lie if the alleged violation is not of statutory provisions / rules or if

the alleged violation is not of a statutory nature.

A writ of quo warranto cannot be issued unless there is a clear violation of law. The High Court gravely erred in issuing a writ of quo warranto when

there is no clear violation of law in the appointment of the appellant. In the instant case, there is no violation of statutory provision and, therefore, a

writ of quo warranto did not lie. If there be any doubt, it has to be resolved in favour of upholding the appointment.â€​

Most significantly, as far as this case is concerned, for reasons which we shall advert to, the Apex Court also held as follows:

“An imposter coming before the court invoking a public law remedy at the hands of a constitutional court suppressing material facts has to be dealt

with firmly. The writ of quo warranto should be refused where it is an outcome of malice or ill will. A petition praying for a writ of quo warranto being

in the nature of public interest litigation, it is not maintainable at the instance of a person who is not unbiased. The proceeding of quo warranto is not

meant to settle personal scores by an employee of the department.â€​

Therefore, while it may be open to any person to approach the court and, to that extent, there is amplification of the concept of locus standi in

regard to writ of quo warranto, we would think that, following the decision in the case of B. Srinivasa Reddy (supra), the law is also to be taken as

that, if there is any doubt relating to the qualifications and violation of the statute, it should be resolved in favour of the person whose appointment is

sought to be challenged. Equally, if the writ petition arises out of bias or if it is ill-motivated, it may be open to the court to decline jurisdiction under

Article 226.

In this case, the undisputed facts are as follows:

There is a vacancy in the post of Deputy Registrar. The proceedings for filling it up by the regular method are going on. In fact, the Advertisement

was once issued; but, it has not yielded fruit. The Registrar of the University wrote to the Government stating that some arrangement may be made.

Whatever that be, in view of the vacancy not being filled-up in the manner known to law, there had to be an arrangement, as, otherwise, there

would be an administrative vacuum, which is certainly not desirable. It is true that the State Government took interest in the matter of the first

respondent and the first respondent is working as the Deputy Registrar. Thereafter, it is equally true that, on 24.03.2018, additional / officiating charge

has been given as the Registrar to the first respondent without any pecuniary benefit. It is very clear that these are not regular appointments as such.

In fact, it is not even described as ad hoc appointment. This is one aspect of the matter.

The other aspect of the matter, which must detain us, is that, as far as the vacancy of Deputy Registrar is concerned, the first respondent has a

case that he is qualified in terms of the Centralized Service Regulations of 2006. On the other hand, the case of the petitioner appears to be that the

qualification for the post of Deputy Registrar is as prescribed by the UGC. We have noted the statement of law, which is contained in the decision of

the Apex Court, namely, that, if there is any  doubt regarding the statute, it must be resolved in favour of the person whose appointment is sought to

be set at naught by a writ of quo warranto. Already, an Advertisement has been issued and the regular appointment is yet to be made.

We must notice that, in fact, it is not an ad hoc appointment and it is described as a temporary arrangement. It is not appointment of any kind; but,

the first respondent is posted having regard to the exigencies present, namely, non-availability of regular hand.

The other dimension, which we must bear in mind, is the aspect, which has been projected in paragraph 2(b) of the counter affidavit, which we

have already extracted. Petitioner, no doubt, has filed a rejoinder affidavit. In the rejoinder affidavit, the allegation about the relationship between the

petitioner and two others has not specifically been denied. The further allegation in the counter affidavit to the effect that despite clear instruction, they

were illegally occupying, is also not specifically denied. It is, no doubt, true that the present writ petition is filed in April, 2018 and the writ petition,

which was filed by the relative of the petitioner, no doubt, was filed as Writ Petition (M/S) No. 1607 of 2018 and it was dismissed by one of us

(Justice Sharad Kumar Sharma) vide judgment dated 18.06.2018. It is true that the said writ petition was also moved after the filing of the present writ

petition. The facts, however, bring about a real cloud over the bona fides of the petitioner in this case. We have noticed the law in this regard, as laid

down in the judgment in B. Srinivasa Reddy (supra). We have also noticed the exigency involved and the case set-up by the respondents about the

first respondent being qualified in terms of one set of rules. We also notice that, in fact, the order, which is attributed to the UGC, wherein

qualifications are provided, relate to the qualification prescribed as a condition for deriving the pay, which has been revised. We need say no further.

We would only think that the cumulative effect of all these facts and, in particular, the aspect projected in paragraph 2(b) of the counter affidavit is

that we do not feel persuaded to exercise the discretion to issue writ of quo warranto, which, alone, is the relief, which can even be considered in this

Public Interest Litigation.

Accordingly, we are inclined to think that the writ petition must be dismissed. At the same time, we are of the view that the appointments to the

posts of Deputy Registrar and Registrar should be completed within a stipulated time.

Accordingly, the writ petition is dismissed; but, we direct that appointment for the vacancy of Deputy Registrar shall be processed and completed

as per law within a period of 10 weeks from the date of receipt of a copy of this judgment. Equally, the post of Registrar must be filled-up in

accordance with law within a period of 10 weeks from the date of receipt of a copy of this judgment. No order as to costs.