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A. RAJAGOPALAN versus CALICUT UNIVERSITY

High Court of Kerala

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A. RAJAGOPALAN v. CALICUT UNIVERSITY - WP(C) No. 27080 of 2004(W) [2005] RD-KL 11 (9 February 2005)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 27080 of 2004(W)

1. A.RAJAGOPALAN, ASSISTANT SUPERINTENDENT
... Petitioner

Vs

1. CALICUT UNIVERSITY, REPRESENTED BY ITS
... Respondent

2. K.HARILAL, ASSISTANT SUPERINTENDENT

3. THE SYNDICATE, UNIVERSITY OF CALICUT,

For Petitioner :SRI.P.RAVINDRAN

For Respondent :SRI.S.GOPAKUMARAN NAIR, SC, CALICUT UTY

Coram

Dated : 09/02/2005

O R D E R

.PL 58 .TM 3 .BM 3

(M.RAMACHANDRAN, J)

j W.P.(C).NO.27080 OF 2004-W j j

Dated this the 9th day of February, 2005

j

JUDGMENT

j ((HDR 0 [WPC 27080/2004] -:#:- )) .HE 1 .SP 2 By Ext.P11 Memo dated 23-08-2004, the Registrar of the University of Calicut had directed Sri.K.Harilal (2nd respondent herein), to adjust the advances drawn by him and had advised him that the Syndicate had resolved that he shall be reinstated in service on compliance with this requirement. Sri.Harilal, referred to above, was the Assistant Superintendent attached to the Calicut University Press, and he was remaining outside the Institution having been removed from service, by proceedings of the Vice Chancellor, as could be seen from the order communicated to him by the Registrar dated 21-06-2002, copy of which is marked as Ext.P8.

2. The petitioner who was his colleague, challenges the order. He is working as Assistant Superintendent of the University Press and apprehended that the re-entry of Sri.Harilal might have adversely affected him, leading to the eventuality of a revision. His fears are gatherable from the averments in the writ petition and also the manner in which the interim relief had been sought for. The prayer in the writ petition was for quashing Ext.P11 order as above and for a declaration that the Syndicate had no authority to sit in judgment over the decision of the Vice Chancellor, functioning as a disciplinary authority.

3. By an interim order dated 15-09-2004, this Court had directed that the petitioner should not be disturbed (in the process of) implementation of Ext.P11. The order was extended from time to time, and resultantly, the second respondent herein has been disabled from joining service from September, 2004 onwards.

4. Parties had agreed that the matter could be formally heard, when the application for extension of the interim orders had come up. I may refer to the relevant facts, as it may be essential for a formal appreciation of the facts leading to the writ petition.

5. According to the petitioner-Sri.A.Rajagopalan, he is working as Assistant Superintendent of the Calicut University Press and is put in additional charge, as Superintendent. He had commenced his service as a Binder in the year 1978, and later was appointed as a Compositor. He came to be promoted as a Junior Foreman in 1982 and was promoted as Assistant Superintendent in the year 1986. It is pleaded that the second respondent-- Harilal, while working as Foreman, had been promoted as Assistant Superintendent, but he did not have the essential qualification for being appointed on a regular basis. Moreover, the said officer had gone on deputation and in the vacancy of the Assistant Superintendent so created, the petitioner had been given promotion. He had been later confirmed in the post and his probation had been declared. The second respondent came back to the parent department, on completion of the deputation period. However, since he did not have the basic qualification of pass in Account Test (Lower), the Syndicate had taken a decision to revert him to the post of General Foreman.

6. Petitioner submits that the second respondent had thereupon resorted to a Writ Petition, but this Court had held that he was not entitled to hold the post of Assistant Superintendent. Further, the decision was that the petitioner could not have been ousted to accommodate the second respondent. Nevertheless, the University was gracious enough at that time to create a supernumerary post of Assistant Superintendent. Thereupon, the petitioner was occupying the regular post and the second respondent was working in the supernumerary post.

7. While this was the scenario, allegations had come up against the second respondent involving dishonest appropriation of substantial sums. Consequently, he was placed under suspension and an enquiry committee had gone into the allegations. Although there was a direction for remitting back the amounts appropriated, this had not been obeyed and the suspension continued. Thereafter, on a detailed enquiry, a decision had been taken by the Vice Chancellor, whereunder the second respondent had been removed from service on 26-07-2001. The relations as between the second respondent and the University thereafter stood altogether snapped. Against the order, the second respondent had filed an appeal to the Chancellor, but no orders had come to be passed thereon.

8. The petitioner submits that because of political influence and misinterpretation of statutes, the newly constituted Syndicate was going out of its way for conferring benefits on the second respondent and a decision had been taken by the Syndicate to reinstate the second respondent in service. It is contended that the proceedings of the Vice Chancellor could not have been nullified by the Syndicate and on the basis of the unhealthy decision, wholly devoid of ethics, the second respondent was likely to come and join duty. He apprehended an imminent career set back. According to him, therefore there was sufficient locus standi for him to challenge the irregular orders, as one passed without propriety, power or jurisdiction. It is stated that

"reinduction of the second respondent through back door would seriously affect the petitioner". The second respondent has `scores to settle with the petitioner' and therefore this Court has to interfere in the matter so as to ensure that illegalities are not perpetuated.

9. The submission, in sum and substance, is that it was a case where undue favouritism was being extended to the second respondent and this would have upset the prevailing equilibrium. Petitioner was holding on to the confirmed position of Assistant Superintendent of the Press and it was a reality by all terms, not liable to be disturbed. The Syndicate was acting beyond jurisdictional limits, and palpably in violation of the Calicut University Act as well as the Statutes framed thereunder. Interference was therefore called for.

10. A counter affidavit has been filed by the first respondent--Universiy. The second respondent also has filed a counter affidavit. According to the University, powers had been exercised validly and the allegations made in the writ petition were not maintainable.

11. Materials had been attempted to be placed by the second respondent in support of his contentions that the writ petition had been filed with a sinister, but personal motivation. It is suggested that the facts have been distorted if not suppressed. The attempt was only to spite him so as to facilitate the petitioner to cling on to the post, which he could not have normally dreamt of, taking notice of the superior claims, including seniority possessed by the second respondent. No appeal had been filed before the Chancellor as alleged, and there was no favouritism shown to him.

12. We will have to deal with the contentions raised by the respondents, in some detail, so as to see whether the rights of the petitioner at any time have been trampled upon.

13. The counsel for the second respondent suggests that the petitioner is guilty of suppression of material facts. It is averred that the basic averments in the writ petition are without any factual foundation. The petitioner is not holding a permanent post as Assistant Superintendent and he had never been confirmed. The second respondent asserts that on his part, he was always qualified for holding the post of Assistant Superintendent. The cloud has been a creation of the petitioner. While holding the post of Foreman, in the year 1981, for the first time, he had been promoted as Assistant Superintendent on 03-10-1981. He continued as such on probation. The petitioner was a Compositor in the Press at that time and came to be promoted as Junior Foreman only in the year 1982. According to the second respondent, he was put on probation for a period of one year within a continuous period of two years, which had been duly completed by 14-10-1982. He continued in the post thereafter for another two years.

14. Advertence is made by the counsel to Ext.R2(a) dated 03-10-1981 leading to the creation of post and consequent appointment. The order indicated that the Syndicate, at its meeting held on 21-08-1981, considered the recommendation of the Standing Committee and resolved that one post of Assistant Superintendent be created and the incumbent in the post of Foreman be promoted as Assistant Superintendent. On this authority, he was promoted as Assistant Superintendent. It was, according to him, a rightful claim.

15. It is further stated that long thereafter, he had gone on deputation to the M.G.University. The Syndicate had on 29-06-1984 decided to temporarily promote the petitioner as Assistant Superintendent in the deputation vacancy created by his departure. The follow up order [Ext.R2(c)] dated 24-08-1984 specifically prescribed that it was purely on a temporary basis and the petitioner was to be reverted as and when the vacancy ceased to exist.

16. With reference to the contention of the petitioner, that he was not qualified to hold the post, learned counsel for the second respondent asserts that the relevant matters known to the petitioner had been grossly suppressed. He submits that such an argument was mischievous, at least, on the date of filing of the writ petition. The writ petition had been filed after the said issue got a quietus, and the petitioner was feigning ignorance of the judgment of a Division Bench of this Court, as confirmed by the Supreme Court to which he was a party. He narrates the sequence of the events, which are as following:-

17. After his appointment as Assistant Superintendent, and completing the probation period, a request had been made by the second respondent to the University to formally declare his probation. At that time, the Syndicate had observed that Account Test (Lower) is an obligatory qualification for the post concerned, and what could have been possible for the University was to grant two years time for him to get qualified, alone. This is evidenced by Ext.R2(d) dated 13-05-1986. The second respondent however had maintained that this is not a tenable proposition.

18. This, in fact, had been an issue of hot contest and the writ petitions, referred to earlier, had come to be filed in the said background. University and the second respondent were sticking on to their respective stands. It was not resolved finally at that time, since the second respondent had gone on deputation. This was up to the period 31-03-1989. The deputation was however got extended by another two years. Thereafter, he was expected to join duty. But strangely, so as to prevent him from rejoining, the petitioner had resorted to a step of filing of O.P.No.3269 of 1991. He has secured an interim order on the plea that since the second respondent was not qualified, he should not be permitted to rejoin duty nor permitted to function as Assistant Superintendent. Till a decision was arrived at, his possible reversion is to be stayed.

19. Initially a stay had been granted, and although the stay application had been dismissed later on, he could continue as Assistant Superintendent. In the meanwhile, on rejoining the second respondent had been served with an order of reversion, but he too had filed a writ petition as O.P.No.5186 of 1994 challenging the proceedings. By virtue of the interim order of status quo, both of them were continuing as Assistant Superintendents, in the press.

20. Proceedings however had been passed by the University at that time, accommodating the second respondent in a supernumerary post. This might have avoided audit objection as there was only one post available. The petitioner was the beneficiary to the extent that the order referred to him as the person occupying the regular post.

21. By a common judgment on 17-01-1997, this Court had held that the petitioner was justified in his submissions that the second respondent was unqualified to hold the post as he did not have the Account Test qualification. Therefore he was liable to be reverted. O.P.No.5186, filed by the second respondent, had been dismissed.

22. But, that was not the end, and further proceedings followed. Two writ appeals came to be filed therefrom as W.A.Nos.376 and 377 of 1997 at the instance of the second respondent. By virtue of the stay orders, the second respondent could continue in the post of Assistant Superintendent, uninterruptedly.

23. It was during the pendency of the above two writ appeals, that the disciplinary proceedings, referred to by the petitioner, had come to be passed. It appears that the second respondent had refused to hand over additional charge of Superintendent, conferred earlier on him, in favour of the petitioner. This resulted in a memo being issued to him. It may not be necessary to go into the other details of the correspondence that had been entered into by the parties in the meanwhile. The next relevant circumstance was the passing of the judgment in the writ appeals, referred to earlier. A Division Bench had held that since Assistant Superintendent was a newly created post, and as passing of departmental test was not an essential qualification at least up to 1984, it was not logical that the second respondent was to possess the test qualification at the time of his appointment and continuation of probation. Being a full member of the service, the second respondent therefore could have continued in the post. Inter alia but not in so many words, thereby the Court gave a declaration that the proceedings of reversion ordered against the second respondent was not sustainable, ab initio.

24. However, this Court at that time (18-03-2004) had noticed that the second respondent was on orders of removal. It had been therefore observed that "since the appellant is now removed from service, the contesting respondent (petitioner herein) can continue in that post till a decision is taken with regard to the removal of service of the appellant by the Syndicate."

25. The judgment had been challenged by the petitioner herein as it would have cut at the root of his contention that the second respondent was not qualified to hold the post of Assistant Superintendent. However, the Special Leave Petition was dismissed by the Supreme Court. Mr.K.R.B.Kaimal submits that fairness demanded of the petitioner not to harp on a contention, at least in the present proceedings, to reagitate a plea that the second respondent was unqualified to hold the post of Assistant Superintendent. It is submitted that the petitioner has omitted to give any such relevant details. He suggests that perhaps a contention that second respondent is not qualified is raised only for facilitating an interim order, and in which he has been successful. But, this Court has to come heavily on such conduct.

26. Of course, the Court expects the parties and their representatives to be scrupulous and honest in drafting the petitions and to be fair in their submissions. Advocates, being officers of the Court, are to help an adjudication by bringing the Court's attention to the points not exclusively to their advantage alone, but also are to supply the correct and up to date legal positions that govern the issue. A deliberate suppression can never be encouraged. And most often, the Court gains benefit from the submissions of knowledgable counsel, as the quest is to arrive at the truth, and sustainability of the claims. Gains by suppression might be having only short life span, and ultimately weaken the position altogether. In the present case, I do not think that serious thought is to be bestowed on this issue, as the stress was on other legal contentions. We have to proceed on the basis that the second respondent, as well as the petitioner are qualified to hold the post of Assistant Superintendent in the press.

27. Mr.K.R.B.Kaimal points out that the proceedings, under attack, had been competently drawn up by the Syndicate. Therefore, the attempt of the petitioner initially to stall the decision and thereafter attacking the outcome, was sinister and motivated and should not have come from a colleague of the second respondent. At least, he had to rest his oars when he found that there was no scope for dispute of his seniority or eligibility. It is submitted that the delay in declaration of probation in the category of Assistant Superintendent, the insistence for possession of Account Test qualification, the reversion, the suspension and the removal thereafter had all come out from basic misconception, as has now been clarified by the Division Bench judgment, and confirmed by the Honourable Supreme Court. At least, in retrospect the petitioner should have reconciled to his worthless pursuit of litigation.

28. It is suggested that the second respondent had been pushed down in more than one way and the drastic manner in which a termination order had been issued to him by the Vice Chancellor on the eve of demitting office showed that the power brokers were actively remaining in the field. At least as at present the Syndicate had come to notice the realities and was attempting to undo whatever illegalities that had been done and the second respondent was being helped to regain the position and status, he was entitled to enjoy. Therefore, he submits that there was no justification for extension of the interim orders, although innocuously worded, and the petitioner is to be told as to his position at least, at this point of time.

29. However, Mr.Ravindran, on behalf of the petitioner, submits that when the statute governs administrative matters, it cannot be presupposed that a body of persons or even the Syndicate could have exercised powers forgetting the source of powers supplied by the statute. He submits that Ext.P1 would indicate that his client had been accommodated in the cadre post and this was never under challenge. He relies on the position that the removal order issued in favour of the second respondent by the Vice Chancellor was a reality and it could have been got upset or set at naught only in a manner recognised by law. According to him, the writ petition was filed only to highlight the above legal contention. A body created by statute had had no inherent powers than those conferred by the statute.

30. According to him, Chapter III deals with the powers of officers of the University. Indisputably, Ext.P8 order dated 21-06-2002, issued by the Registrar, showed that by an order dated 28-05-2002, the second respondent has been removed from the service of the University. It had been ordered to recover the loss/liabilities from him. This was an act in exercise of powers vested in the Vice Chancellor, who is the supreme executive officer. This had definite connotation and could not have been ignored, and could not have been nullified otherwise than in a manner or means recognised by law. According to him, under section 7(6) of the Act, an appeal is to lie to the Chancellor against any order of dismissal passed by the Syndicate or the Vice Chancellor against any person who is in the service of the University. Under section 7(7), such an appeal has to be filed within a period of sixty days from the date of the order. Section 21 provides that Syndicate is the chief executive body of the University. It is to consist of ex-officio and other members. The Vice Chancellor is one of the members of the Syndicate, and as an ex-officio member. Powers of the Syndicate are prescribed by section 23. Under sub-section (x) of section 23, this includes power to suspend, dismiss or otherwise take any disciplinary action against teachers and other employees of the University after giving them reasonable opportunity to defend their position. With reference to section 7, it is submitted that against such orders also the Chancellor will have appellate powers.

31. Likewise, Chapter 4 of the Calicut University First Statutes deals with the terms and conditions of non-teaching staff and paragraph 25 prescribes the penalties. As far as the Syndicate is concerned, they have power to deal with officers in the cadre of Deputy Registrars and above and taking notice of the status of the second respondent, the Vice Chancellor was the competent authority to deal with officers like the second respondent. Mr.Raveendran submits that when express provisions for appeal are there, as prescribed by statutes 50 and 52, it would never have been possible for the Syndicate to arrogate the powers and sit in appeal or review over the decision of the Vice Chancellor, even if there was any irregularity attached thereto. Therefore, it is argued that the impugned orders cannot have any legal existence, and require to be quashed.

32. But, this argument, according to the respondents, are misconceived. In the counter affidavit filed by the University, it has been averred that the impugned orders had been issued in exercise of powers under paragraph 66 of Chapter 4 of the Calicut University First Statutes. Perhaps the above can be considered as supplemental, so as to understand the position that has been presented by the parties as the second respondent has yet another argument. Paragraph 66 provides that "notwithstanding anything contained in these statutes

where there is a grave miscarriage of justice or a patent error on the facts in the record of the case of a subordinate authority, it shall be open to the Syndicate at any time to call for the records and after examining them pass such orders as it may consider necessary." This according to the University is a complete answer to the contentions raised.

33. Mr.Ravindran, on behalf of the petitioner, requires me to understand the above said provision with a restricted meaning, namely that it may be possible for the Syndicate to examine the issue and deal with them appropriately only in respect of cases which had not been dealt with by the Vice Chancellor, but only by a lower authority. He asserts that the expression `Subordinate Authority' in the statute is to be given a meaning not violating the law. According to him, the University had no case that the Vice Chancellor was a subordinate authority to the Syndicate. The officers of the University have been defined with precision and there is no indication that the Vice Chancellor is subordinate to the said body when we assign an ordinary meaning for the term.

34. However, Mr.S.Gopakumaran Nair, standing counsel for the University, referred to a judgment of this Court reported in Sasidharan v. Reserve Bank of India [1990 (2) KLT 573] and submits that this Court had occasion to declare that power is inherent in any administrative authority to correct accidental mistakes committed by it, in ignorance of, or overlooking the facts. When there was injustice brought to the attention of the Syndicate, it has been decided to have a fresh look to the issue.

35. A reading of the paragraph 66 also compels me to conclude that what had been invested was general powers and the expression `subordinate authority' need not have restricted the powers of the Syndicate, the chief executive body of the University as canvassed by the petitioner. What had been authorised to be dealt with was the right of the Syndicate to call for the records and after examining them pass such orders as it may consider necessary. From a reading of the statutes, this power should have been exercised in two distinct circumstances. Where there is a miscarriage of justice, by whosoever, such power could have been exercised. This might have included the acts of the Vice Chancellor even. The other circumstance, where such power was to be used was when the Syndicate found patent errors of facts in the records, in case of subordinate authority. There also reserve powers had been in store for being exercised to correct the error. Thus, the Syndicate had power to deal with the situation, as claimed by the University, and I do not find any patent error in the exercise of powers, going by the facts of the case. Resort to an appeal was yet another independent remedy to which recourse was permitted to be made.

36. The second respondent has a further case that the impugned orders could not have been successfully challenged at all. The sequence of the events would indicate that while Ext.P11 was issued, the powers had been exercised, as possessed by the Syndicate. in support of his contentions, counsel invited my attention to section 10 (13) of the Act, which is in the following terms: .SP 1

"If at any time, except when the Syndicate or the Academic Council is in session, the Vice-Chancellor is satisfied that an emergency has arisen requiring him to take immediate action involving the exercise of any power vested in the Syndicate or the Academic Council by or under this Act, the Vice-Chancellor may take such action as he deems fit, and shall, at the next session of the Syndicate or the Academic Council, as the case may be, report the action taken by him to that authority for such action as it may consider necessary." .SP 2 Ext.P8 of the Registrar referred to the orders passed by the Vice Chancellor removing the second respondent from office. It was at a time when the Syndicate was not in session. Therefore, the Vice Chancellor very well knew that he had been exercising a power not normally available to him. He was therefore bound to place the matter before the Syndicate, by way of a report. It was for the Syndicate to decide on such action as it considered necessary. In fact, reference is made in Ext.P11 to the Minutes of the Syndicate dated 05-06-2004 as well as the representation that had been submitted by the second respondent. The Syndicate had considered the issue, as it was bound to exercise the powers so as to complete the ratification required, though belatedly. It had opportunity to read the report, which had been submitted by an officer specifically authorised to look into the circumstances. The Syndicate was competent to take notice of the issue independently of the view of the Vice Chancellor and even de horse the provision for review and that alone had been carried out, and as a matter of fact about these proceedings the opinion of the petitioner had no relevance.

37. Mr.Kaimal submits that what had been done to his client was an atrocity and perhaps the outcome of a conspiracy. Every effort was taken to destroy his morale. Reversion, suspension and removal was part of the games played. The Vice Chancellor was aware that he was incompetent to pass orders of removal, to which reference is made in Ext.P8 proceedings. He might have signed on the dotted lines, before signing off himself. He submits that although the Vice Chancellor had competence to dismiss a person, up to the rank of Deputy Registrar, as far as the second respondent was concerned, he had no such powers and therefore recourse to the appeal spoken to by section 7 (6) and 7 (7) of the Act was not there. The Syndicate, according to him, might have been convinced of the high-handedness by a perusal of the reports.

38. Counsel also invited my attention to a few documents produced along with the counter affidavit, in support of his stand. Ext.R2(a) showed that the Syndicate created the post of Assistant Superintendent, in exercise of its powers. Again, it was the Syndicate which had appointed the second respondent by promotion as Assistant Superintendent. Therefore, it was indisputable that the appointing authority in respect of the second respondent was the Syndicate. It would not have been therefore possible for the Vice Chancellor to dismiss or remove him. Counsel also points out that such removal was not after any formal domestic enquiry, nor was any opportunity given to the person concerned for presenting his stand. It was a void order. By such a void order, however, the Vice Chancellor could force the second respondent to remain outside the University for years together. It was by an order, which was passed by him on the day of his departure from the University which the counsel points out, was meaningful. The Syndicate had come to note the arbitrariness. In exercise of their powers vested under section 10 (13) of the Act as well as by paragraph 66 of the First Statute, what is done was to rectify the errors and to bring about the status quo ante. It is submitted that the financial irregularities alleged were only a ruse without any basis and the circumstances indicated the presence of conspiracy that might have preceded, though by unknown persons.

39. The totality of the facts presented before me indicate that there has been sustained effort by the petitioner to keep off the second respondent from assumption of office. Presence of Sri.Harilal would have automatically led to his reversion. Only one person would have occupied the post of Assistant Superintendent. The facts show that the second respondent was entitled to occupy the post as of right, and in preference to the petitioner.

40. The University has no case that before the formal order of removal, an enquiry had been held against Sri.Harilal. This was a vitiating circumstance. The Vice Chancellor could not have issued proceedings leading to Ext.P8, as he was not competent to deal with the second respondent, when the documents show that his appointing authority was the Syndicate. The procedure for ratification also appears to be very much required, even if we assume that the earlier orders were issued with competence.

41. The Syndicate apparently has approached the issue with fairness, and in any case, since I do not find any irregularity or illegality, orders as above are not required to be interfered in exercise of powers under Article 226 of the Constitution of India. It is trite law that even drastic or irregular orders could be left undisturbed, if the result of interference were to perpetrate another illegality. It involves a wholesome principle. The Court is not bound by technicalities, and I am convinced that interference sought for will not advance the cause of justice.

42. This is a case where it can safely be concluded that the petitioner has been abusing the process of court, for his personal benefits, unmindful of the detriment and aspirations of one of his senior colleague. It requires to be condemned in the strongest of language.

43. I dismiss this writ petition. There should not be any impediment for the University to take all further steps for implementing Ext.P11, and this should be done with expedition. The second respondent is to be accommodated as Assistant Superintendent with full charge in the University Press, and consequential proceedings are to be drawn up. The petitioner will be liable to pay cost to the second respondent, quantified at Rs.2,500/-. .JN

(M.RAMACHANDRAN, JUDGE)

mks/ ((HDR 0 )) .HE 2 .PA ............. .SP 1

(M.RAMACHANDRAN,J)

.JN O.P.NO. OF 2003- j

J U D G M E N T

Dated: 24th day of September, 2004

.JN

(M.RAMACHANDRAN, JUDGE)

mks/ ((HDR 0 )) .HE 3 .PA ............. .SP 1

(M.RAMACHANDRAN,J)

.JN O.P.NO. OF 2003- j

J U D G M E N T

Dated: 24th day of September, 2004


Copyright

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