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DR. R.N. SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Dr. R.N. Singh v. State Of U.P. And Others - WRIT - A No. 28331 of 2003 [2003] RD-AH 279 (18 August 2003)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO. 34

''RESERVED'

CIVIL MISC. WRIT PETITION NO. 28331 OF 2003

Dr. R.N.Singh ------ Petitioner

 Vs.

State of U.P. & ors. ------       Respondents

______

Hon'ble Dr. B.S.Chauhan, J

Hon'ble D.P.Gupta, J.

(By Hon'ble Dr. B.S.Chauhan, J.)

This case has a chequered history. There has earlier been a round of litigation. Petitioner had been appointed as a regular Principal in the institution in 1988. Two rival committees stalked their claim for management and as dispute could not be resolved, the District Magistrate of Aligarh was appointed as an Authorised Controller under the provisions of U.P. Universities Act, 1973, hereinafter called the ''Act 1973', vide order dated 12.11.2002. The said order dated 12.11.2002 was recalled vide order dated 30.11.2002 by the State authorities  and one of the rival committees was given recognition. However, the order of recall dated 30.11.2002 was challenged by another Committee of Management and this Court vide order dated 8th January, 2003 stayed the operation of the order dated 30.11.2002. Thus, by virtue of the stay order, the District Magistrate continued to be the Authorised Controller. The said Authorised Controller vide order dated 11.3.2003 withdrew the financial powers of the petitioner treating him to be the officiating Principal, and also passed the order dated 21.3.2003 appointing one Shri K.N. Gaur as Senior Centre Superintendent. The Vice Chancellor passed the order dated 25.4.2003 that as the petitioner was a regular Principal, he could not be treated as an officiating Principal. The Authorised Controller vide order dated 10th May, 2003 suspended the petitioner. The said order was challenged by filing Writ Petition No. 21492 of 2003, which was disposed of by this Court vide order dated 16.5.2003 directing the petitioner to make a representation before the learned Vice Chancellor of the University. The Writ Petition No. 53968 of 2002, by which removal of the Authorised Controller had been challenged and interim relief had been granted, was dismissed by this Court on merit vide judgment and order dated 23.5.2003 and the District Magistrate ceased to be the Authorised Controller. The dismissal of the said writ petition restored the order of the government removing the Authorised Controller vide order dated 30.11.2002.  The learned Vice Chancellor considered the representation of the petitioner and vide order dated 20.6.2003, the suspension order was recalled. However, vide order dated 29.6.2003, the District Magistrate (Authorised Controller) passed another order of suspension. Hence this petition.

Shri R.N. Singh, learned Senior Advocate appearing for the petitioner has submitted that once this Court vide judgment and order dated 23.5.2003 has dismissed the writ petition filed by one of the Committees of Management and the interim order passed in that writ petition came to an end automatically and the District Magistrate ceased to be the Authorised Controller with immediate effect and any order passed by him subsequent thereto is nullity being without jurisdiction/competence. Once the earlier suspension order had been quashed by the learned Vice Chancellor, there could be no occasion to put the petitioner under suspension again. Thus, the impugned order of suspension is not only to be quashed but to be declared nullity being without jurisdiction.

On the other hand, Dr. R.G. Padia and Shri Ashok Khare, learned Senior Advocates appearing for the respondents, have submitted that whatever may be the legal position, after the dismissal of the writ petition by this Court on 23.5.2003, the petitioner had been treating the said District Magistrate as an Authorised Controller and had been making representations/applications before him time and again and did not raise any objection for his participation even before the Vice Chancellor, while deciding his representation against the suspension order as the petitioner has accepted his competence/jurisdiction, he can not be permitted to blow hot and cold in the same breath and thus he cannot be permitted to raise such a plea. There can be no bar on the competent authority to pass a suspension order again if the circumstance so demand. Thus, the petition is liable to be dismissed.

We have considered the rival submissions made by the learned counsel for the parties and perused the record.  

The facts are not in dispute to the extent that the order appointing the District Magistrate as an Authorised Controller was recalled vide order dated 30.11.2002 and the operation of the said order dated 30.11.2002 was stayed by this Court and once the writ petition has finally been dismissed vide judgment and order dated 23.5.2003, the interim order passed by this Court merged into the final order and, thus, there was no question for the District Magistrate to continue as an Authorised Controller.

There can be no quarrel to the legal proposition that no party can suffer by the action of the Court and when the High Court in exercising of its powers under Article 226 of the Constitution of India grants interim relief; the interest of justice requires that   any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised. The institution of litigation by a party should not be permitted to confer an unfair advantage on the party responsible for it.  (Vide Grindlays Bank Ltd. Vs. Income Tax Officer, Calcutta & ors., AIR 1980 SC 656; Ram Krishna Verma Vs. State of Uttar Pradesh & ors., AIR 1992 SC 1888; State of Madhya Pradesh Vs. M.V. Vyavsaya & Co., AIR 1997 SC 993; and Smt. Rampati Jayaswal & ors. Vs. State of Uttar Pradesh & ors., AIR 1997 All 170).

No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and  thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court.  (Vide Dr.  A.R. Sircar Vs. State of Uttar Pradesh & ors., 1993 Suppl. (2) SCC 734; Shiv Shanker & ors. Vs. Board of Directors, Uttar Pradesh State Road Transport Corporation & anr., 1995 Suppl (2) SCC 726; the Committee of Management, Arya Inter College Vs. Sree Kumar Tiwary, AIR  1997  SC 3071; and GTC Industries Ltd. Vs.  Union of India & ors., (1998) 3  SCC 376).

In Kanoria Chemicals and Industries Ltd. Vs. U.P.  State Electricity Board & ors., (1997) 5 SCC 772, the Hon'ble Apex Court approved and followed its earlier judgment in Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association, (1992) 3 SCC 1, and observed as under:-

"It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the Court."

The same view has been taken by the Hon'ble Supreme Court in the case of N.  Mohanan Vs. State of Kerala & ors., AIR 1997 SC 1896; and Bileshwar Khan Udyog Khedut  Shahakari Mandali Ltd. Vs. Union of India & anr., AIR 1999 SC 1198 wherein it has been held that the appointment/continuation in service by interim order, does not create any legal right in favour of the appointee. In State of U.P. & ors. Vs. Raj Karan Singh, (1998) 8 SCC 529, the Hon'ble Apex Court has categorically held that interim order cannot disturb the position in law and if a person is in service by virtue of the interim order of the Court, he cannot agitate the issue that his continuation in service in such a condition has improved his claim to regularisation.

Once the writ petition was dismissed on merit, the interim order passed earlier lapsed on 23rd May, 2003 and the said order had been communicated to the District Magistrate/Authorised Controller, it does not require the State authority to pass any consequential order. Thus, any order passed by the District Magistrate/Authorised Controller subsequent to 23.5.2003 is nullity for want of competence for the reason that order of the Court becomes effective immediately unless it requires execution or certain steps  to be taken by the party concerned or the State authority.

In Mulraj Vs. Murti Raghunathji Maharaj, AIR 1967 SC 1386, the Hon'ble Apex Court held that any order passed by the Court comes into force immediately, and if any authority passes an order in contravention of the order passed by the Court,  is nullity if the order of the Court stood communicated to the said authority. The Hon'ble Apex Court further observed as under:-

"----------------In the case where the execution proceeding is quashed, the order takes effect immediately and there is nothing left to execute but where a stay order is passed, execution still stands and can go on unless the court executing the decree has knowledge of the stay order. It is only when the executing court has knowledge of the stay order that the court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is in force."

Similar view has been reiterated in Surjit Singh & ors. Vs. Harbans Singh & ors., (1995) 6 SCC 50; and Govt. of A.P. Vs. Gudepu Sailoo & ors., AIR 2000 SC 2297.

Therefore, it becomes clear that once the Court passes an order, any act or order in violation thereof is nullity. Interim order passed by the Court merges into the final order and order of the Court becomes effective immediately.

Undoubtedly, in certain cases where a person submits to the competence/jurisdiction of an authority, and invite an order against him, he cannot be permitted to challenge the said order, i.e. where a party voluntarily submits to the jurisdiction of an authority or Court without making any protest and pleads the case on merit, produce the evidence and examine the evidence produced by the other side and take the chance of winning the case on merit, the party can not be permitted to raise the issue of jurisdiction at a later stage. This view stands fortified by the judgments of the Hon'ble Supreme Court in Narhari Shiv Ram Sheth Narvekar Vs. Pannalal Umedi Ram, AIR 1977 SC 164; Madan Lal Vs. State of Jammu & Kashmir,  (1995) 3 SCC 486; and Municipal Commissioner, Calcutta & Ors. Vs. Salil Kumar Banerjee & Ors., (2000) 4 SCC 108. However, in Koopilan Uneen's Daughter Pathumma & Ors. Vs. Koopilan Uneen's Son Kuntalen Kutty, AIR  1981 SC 1683, the Hon'ble Apex Court held that the party must raise the issue of jurisdiction at the Court of first instance at the earliest opportunity, i.e. before framing of the issues and there should not be a case of failure of justice. In case, none of the aforesaid conditions exist, the party can not be permitted to agitate the issue of competence/jurisdiction at a later stage.

In Raj Kumar & Ors. Vs. Shakti Raj & Ors., (1997) 9 SCC 527, the Apex Court distinguished the aforesaid cases and held that where the procedure adopted is in violation of the statutory rules, the question of acquiescence/estoppel could not be attracted as there can be no estoppel against the law.

In P. John Chandi Co. (P) Ltd. Vs. John P. Thomas, (2002) 5 SCC 90, the Hon'ble Supreme Court considered the issue of acquiescence and implied consent placing reliance upon an earlier judgment in Hira Lal Kapoor Vs. Prabhu Choudhary, AIR  1988 SC 852; Ram Saran Vs. Pyare Lal, AIR  1996 SC 2361 and Udiba Vs. Damodaran, (1999) 5 SCC 645 and observed as under:-

"That for the purpose of implied consent, there has to be something more than mere inaction or lack of initiative on the part of the party while consent requires something to be with positive action of the said party and mere silence for that purpose may not be enough."

In the instant case, statutory Rules provide the power of suspension only with the Committee of Management, the Authorised Controller once ceased to be suspension order, he did not have competence to pass an order of suspension.

In R.N.  Gosain vs. Yashpal Dhir, AIR 1993 SC 352, the Hon'ble   Supreme Court has observed as under:-

"Law does not permit a person to both approbate and reprobate.  This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that  "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the   purpose of   securing some other advantage."

Similar view has  been taken  by  the Hon'ble  Supreme  Court  in   Babu  Ram vs. Indra Pal Singh, AIR 1998 SC 3021. In P.R.Deshpandey vs. Maruti Balaram Haibatti, AIR 1998 SC 2979, the Hon'ble Supreme Court has observed  that the doctrine of election is based on the rule  of estoppel- the principle that one cannot approbate  and  reprobate inheres in  it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity.  By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.

Undoubtedly, the petitioner had been treating the said District Magistrate as an Authorised Controller and did not even protest when the matter was heard for recalling the suspension order by the Vice Chancellor and the question thus arise as to whether the submission to jurisdiction or considering that he was competent enough to pass such an order, would confer the power upon him to pass a suspension order. Appearing before the Vice Chancellor as an Authorised Controller would not confer upon him the competence to pass the order of suspension, as the suspension order could be passed only by the Committee of Management which the Authorised Controller ceased to be once the writ petition was dismissed by this Court vide judgment and order dated 23..05.2003.

In the instant case,  after hearing the order dated 23.5.2003 by this Court, the said authorised controller did not pass any order conferring any benefit upon the petitioner, and  the petitioner has not taken advantage of  order passed by the Authorised Controller, doctrine of acquiescence/estoppel would not apply.

There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court and if the court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised even at a belated stage in execution. The finding of a court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. (Vide United Commercial Bank Ltd. Vs. their Workmen AIR 1951 SC 230; Smt. Nai Bahu Vs. Lal Ramnarayan & orws., AIR 1978 SC 22; Natraj Studios Pvt. Ltd. Vs. Navrang Studio & Anr., AIR 1981 SC 537; Sardar Hasan Siddiqui Vs. State Transport Appellate Tribunal, AIR 1986 All. 132; A.R. Antuley Vs. R.S. Nayak, AIR 1988 SC 1531; Union of India Vs. Deoki Nandan Aggarwal, AIR 1992 SC 96; Karnal Improvement Trust Vs. Prakash Wanti & Anr., (1995) 5 SCC 159; U.P. Rajkiya Nirman Nigam Ltd.Vs. Indure Pvt. Ltd., AIR 1996 SC 1373; State of Gujarat Vs. Rajesh Kumar Chimanlal Barot & Anr., AIR 1996 SC 2664; Kesar Singh & ors Vs Sadhu & ors 1996 SC 711 Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar & ors., AIR 1999 SC 2213; and Collector of Central Excise, Kanpur Vs. Flock (India) (P) Ltd., Kanpur, AIR 2000 SC 2484).

In Sushil Kumar Mehta Vs. Gobind Ram Bohra (1990) 1 SCC 193, the Supreme Court, after placing reliance on large number of its earlier judgments and of the English Courts,particularly in Premeir Automobiles Ltd. Vs. K.S. Wadke, (1976) 5 SCC 496; Kiran Singh Vs.Chaman Paswan, AIR 1954 SC 340; Barraclough Vs. Brown, 1897 Authorised Controller 615; Doe d. Rochaster (P) Vs. Bridges, 109 ER 1001; Ledgard Vs. Bull, (1886) 11 App. Cases 648; Borton Vs. Finchan, (1921) 2 KB 291; and Chandrika Misir Vs. Bhiya Lal, (1973) 2 SCC 474; held, that a decree without jurisdiction is a nullity; when a special statute gave a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, "performance cannot been forced in any other manner."  

Once the suspension order stood quashed, if the circumstances so demand, another order of suspension is not prohibited in law. There may be a case where after passing the suspension order, the competent authority takes the view that there is no sufficient evidence against the delinquent or allegations levelled against him do not warrant major penalty, it may recall the suspension order. But after submission of the charge sheet or subsequent to recording evidence, considering  the nature and gravity of the charge, the authority is competent enough to pass the second order of suspension. This view stands fortified by the judgment of the Hon'ble Apex Court in U.P. Rajya Krishi Utpadan Mandi Parishad Vs. Sanjiv Rajan, 1994 SCC (L&S) 67.

Thus, there is no dispute to the settled legal proposition that the Committee of Management could pass the second suspension order but here the issue involved is the competence of the authority to pass a suspension order once admittedly it ceased to be Authorised Controller. The plea of alternative remedy or approaching the writ court without exhausting statutory remedy provided under Section 34(5) of the U.P. State Universities Act, 1973 and making a representation before the learned Vice Chancellor becomes immaterial. Similarly, the submission made by Dr. Padia that the Vice Chancellor had quashed the earlier suspension order only after hearing the District Magistrate/Authorised Controller and, therefore, was bad in law as the Committee of Management was not heard, has no force for the reason that if the Committee of Management was so aggrieved, nobody could prevent it to challenge the said order passed by the Vice Chancellor, quashing the suspension order before this Court on the ground that the order had been passed without giving any opportunity of hearing to it. The order passed by the Vice Chancellor revoking the suspension  is not the subject matter of this writ petition, thus, we cannot express any view regarding the correctness thereof.

To sum up, petitioner, who is a regular Principal had been put under suspension by the Authorised Controller. Against the same petitioner approached this Court, but was directed to approach the statutory authority, i.e., learned Vice Chancellor. For quashing the suspension order petitioner approached the said authority and the suspension order was passed. Subsequently, fresh suspension order had been passed by the District Magistrate, Aligarh purporting to be an Authorised Controller though on that date by no means he could be the Authorised Controller. The order impugned is without any competence and cannot be taken note of. However, the Committee of Management in control of the institution could pass any order in accordance with law.

Thus, in view of the above, the petition succeeds and is allowed. The impugned order of suspension dated 29.06.2003 is hereby quashed. No order as to costs.

18.8.2003

AKSI/AHA


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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