Present Mr.R.K.Malik Sr. Advocate, with Vs. the District and Sessions Judge Kaithal and Others - Court Judgment

Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP-16543-2009 (O&M).Date of decision: July 23, 2013.

Kulbhushan Chaudhary ....Petitioner Versus The District & Sessions Judge, Kaithal and others ....Respondents CORAM: HON'BLE Mr.JUSTICE M.M.S.BEDI PRESENT Mr.R.K.Malik, Sr., Advocate, with Mr.Vijay Dahiya, Advocate, for the petitioner.

Mr.R.D.Sharma, DAG., Haryana.

Mr.R.K.Bansal, Advocate, for respondent Nos.3 to 5.

M.M.S.BEDI, J.

(ORAL) Petitioner has invoked the writ jurisdiction of this Court to seek quashing of judgment dated 20.8.2009, Annexure P11, passed by Additional District Judge, Kaithal, exercising powers of Appellate Authority as per the Gazette Notification dated 8.9.2005 Brief facts of the case are that the petitioner was appointed on ad hoc basis as Lecturer in Computer Science on 1.7.2005 in RKSD College of Pharmacy, Kaithal.

He was appointed on regular basis on the recommendation of duly constituted Selection Committee and offered appointment letter on 21.8.2006.

He joined in 1 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document pursuance to the above said offer on 31.8.2006 and was issued an appointment letter Annexure P-4.

When the case of the petitioner was sent for approval to the Kurukshetra University, the University vide letters dated 27.9.2007 and 31.10.2006 raised some objections vide Annxures P2 & P3, to the effect that the University cannot approve selection of the petitioner for the post of Lecturer in the Computer Science as he has not passed NET.

Vide Annexure P-4, on 21.11.2006, the Principal of the College informed the University that qualification which may be for the post of teaching staff in degree level technical institution is FiRs.Class Masters Degree in the appropriate branch of Engineering/Technology.

There is no mention of qualification of NET clearance for Lecturer in Engineering and Technology and Engineering and Technology (Bio-Tech) as the couRs.was a B-Pharm couRs.and is a degree level technical one, so the qualifications norms mentioned for the above disciplines (Faculty Norms from KUK Page 92, 93 & 94) along with MCA degree of the petitioner which he had earned from Visveswaraiah Technological University, Belgaum, Karnataka, India, was also sent to the Dean of Colleges Kurukshetra, for consideration.

Vide Annexue P-5, satisfied with the qualification prescribed for the post of Lecturer the University approved the appointment of the petitioner vide letter dated 25.1.2007 observing that there was no such condition of passing NET/SLET.

After approval granted by the University, the petitioner was issued appointment letter with a condition that it will be effective 2 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document from the date of joining.

The petitioner continued till April 2008, but vide resolution dated 12.4.2008, the Managing Committee decided that Chairman in consultation with Principal will decide over the matter and take final decision.

The relevant extract of resolution dated 12.4.2008, Annexure P-7, is reproduced hereunder for ready reference: - “Copy of resolution no.2 passed in the Meeting of Board of Governors RKSD College of Pharmacy, Kaithal held on 12.4.2008.

Present State of affair and faculty position of the college.

Prof.

S.C.Arora welcomed the new Board of Governors and briefed the House about the College's Courses, present strength of students, infrastructures status, laboratories, library, faulty and their workload, non-teaching staff and academic achievements of the College.

The house appreciated the progress and achievements of the College during the last four years and assured the Principal for further improvement and consolidation in every respect.

House was also of the view that salary should be according to the workload of the employees and wherever part time faculty is prescribed by the councils/University, no full time faculty should be employed and if already employed, they should be relieved.

It was resolved that for the benefit of the College, the Chairman in consultation with the 3 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document Principal will decide over the matter and shall take the action accordingly.”

Vide Annexure P8 dated 30.4.2008, the petitioner was sent the following communication: - “Sir, This is to inform you that as per decision taken in Boards of Governors meeting held on 12.4.2008 (vide resolution no.2) and directed by the Hon'ble Chairman, yours services are no more required with effect from 1.5.2008.

You are directed to hand over the charge of the Computer Laboratory & records to Mr.Varun Arora, Lecturer.”

The petitioner challenged the termination order dated 30.4.2008 by filing appeal before the District Judge, Kaithal who had been authorised to act as Appellate Authority as per the Govt.

Notification dated 8.9.2005.

The appeal was dismissed vide Annexure P-11 by Additional District Judge, Kaithal on 20.8.2009.

The petitioner had raised the ground before the appellate authority that the petitioner having completed probationary period successfully and being a regular employee of RKSD College of Pharmacy was governed by Haryana Affiliated Colleges (Security of Service) Act, 1979 and that he should not have been removed without an enquiry by way of punishment under rule 19.

The College authorities could pass order of dismissal, removal or reduction in rank only after 4 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document necessary reference to the Director of Higher Education in terms of the aforesaid Act.

Services of the petitioner had not been terminated by the Governing Body or by the Director.

Though the Court was satisfied that the rules prescribed for removal had not been followed but on account of petitioner having not undergone test of NET lacked basic qualification, as such, he could neither be appointed as Lecturer in Computer Science in RKSD College of Pharmacy, Kaithal not the parties were bound to observe the rules.

Mr.Malik leaned Counsel for the petitioner has submitted that so far as the ineligibility of the petitioner having not passed NET is concerned, the objection of the University had been removed by the College by informing the University that there is no mention of NET clearance as qualification for Lecturer in Engineering and Technology (Bio-Technology) and as the couRs.was B-Pharm couRs.and was a degree level technical one, the petitioner was eligible.

Explaining the said letter vide Annexure P5, dated 25.1.2007, the name of the petitioner was approved and an intimation was sent to the Principal by the Kurukshetra University that the decision of the Selection Committee in its meeting held on 20.8.2006 for the post of Lecturer in Computer Science stood approved and the petitioner was directed to fulfill certain formalities.

On production of documents the appointment letter Annexure P-6 dated 27.1.2007, was issued.

The relevant portion of the appointment letter containing conditions is reproduced hereunder: - 5 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document “1.

That you shall be on probation for a period of one year, which can be extended for such further period as the competent authority under the rules may determine.”

2. That in case of resignation or discharge on grounds other than abolition of the post (except as a result of disciplinary action).one month's notice or one month's pay and allowance in lieu of there will be required to be paid on either side.”

3. That you shall abide by the rules and regulations of AICTE, PCI, Kurukshetra University and our College.”

4. That before assuming the charge of duties, you will be required to produce the following certificates to the Head of the Institutions: - i) Medical Certificate of fitness from MBBS Medical Practitioner.

ii) attested copies of academic and professional qualifications and matriculation certificate and iii) a certificate of good character from Gazette Officer or Member of Legislative Assembly.”

5. That you will be required to produce the original educational and date of birth certificate.

If the above terms and conditions are acceptable to you then join your duty immediately.”

Vide Annexure P-7, the Board of Governors passed the resolution which has been reproduced hereinabove on the basis of which impugned termination order referred to above was passed that services of the petitioner were not required w.e.f., 1.5.2008.

The 6 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document service conditions of the petitioner admittedly are governed by Haryana Affiliated Colleges (Security of Service) Act 1979.

The respondent-College is an educational institution run by Rastriya Vidya Samiti.

Section 4 of the aforesaid Act provides that the method of recruitment and conditions of service of the employees shall be such as may be prescribed.

“Managing Committee”.

as per Section 2 (e) is Managing Committee of affiliated college and includes a person or body of persons for the time being entrusted with the management of the affairs of such a College under the Haryana Affiliated Colleges (Security of Service) Act and Haryana Affiliated Colleges (Security of Service) Rules 1993 (amended in 2006).The appointing authority has been defined in Rule 5.

The rules regarding appointing authority and probationer which are relevant for the decision of the case are reproduced hereunder: - “5.

Appointing Authority- Appointment to any post in the Service shall be made by the Managing Committee in the manner provided in rules.

Peon and other Class-IV employees shall be appointed by the Principal, in the manner provided in the said rules.”

“8.

Probation – (1) The persons appointed to any post in the Service shall remain on probation for a period of two years in the fiRs.instance, if appointed by direct recruitment and one year if appointed otherwise.

7 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document (2) On the completion of the period of probation of a person the appointing authority may - a) if his work or conduct has, in its opinion, been satisfactory, confirm such person from the date of completion of his probation period or if a permanent post is not available, declare that he has completed his probation satisfactory, or (b) if the work and conduct of a person in its opinion has not been satisfactory- (i) dispense with his services, if appointed by direct recruitment, or revert him to his former post if appointed otherwise or deal with him in such other manner as the terms and conditions of his previous appointment permit; ii) extent his period of probation and thereafter pass such orders as it could have passed on the expiry of the fiRs.period of probation: Provided that the total period of probation, including extension, if any shall not exceed three yeaRs.Provided further that if it is proposed to take action under sub clause (i) or (ii) then the case of the official shall be referred to a committee consisting of the following membeRs.- 1) President or his nominee 2) Dean of Colleges of the University or his nominees 3) Nominee of Government on the Managing Committee; 4) Principal of the College concerned 5) Principal of another college not under the same Managing Committee.

The Managing Committee shall take a final decision in the matter 8 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document in accordance with the recommendation of this Committee; (iii) If the Managing Committee does not agree with the report of the Committee constituted under rule 8 (2) (b) (ii) or the committee is unable to come to a decision by majority then the matter will be referred by the Principal to the Director whose decision will be final.

However, an employee against whom an order of termination of services has been passed without complying with the provisions of these rules, may, within period of thirty days of the date of communication of orders make an application to the Director whose decision will be final in the matter.”

In the present case the petitioner was appointed on ad hoc basis as Lecturer in Computer Science on 1.7.2005.

He was appointed on regular basis on the recommendation of the Selection Committee.

He was offered appointment vide letter dated 21.8.2006 as such he joined on 31.8.2006.

The termination order was passed vide resolution dated 12.4.2008 which was implemented by the Principal on 30.4.2008.

A perusal of the above said rules indicate that power to remove an employee of the College is conferred only on the Managing Committee or the Governing Body and not on the President.

Under the provisions of the Act, the Governing Body has got power to order an enquiry into the misconduct of an employee after obtaining the approval of the Director and dismiss or remove an employee.

Said function cannot be delegated to the President either 9 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document by the Rules or by bye-laws under the resolution passed by the Managing Committee.

A similar question cropped up in Samar Singh Yadav versus State of Haryana, 1961, Rs.34, wherein it was held that where Managing Committee is empowered to take disciplinary action against an employee of the Educational Institution, after referring the matter to the Director, the said functions cannot be delegated to any other person either by the Rules or by bye-laws.

In Union of India versus Alok Kumar (2010) 10 SC 2735.wherein considering the scope of word “authority”.

and “other authority”.

in context to Rule 9 (2) read with certain (disciplinary and appeal Rules) 1968, it was observed that the word other authority is intended to cover a vast field and there is no indication of the mind of the framers that the explanation must be given a restricted or a narrow meaning.

It is possible that where the authority is vested in a person or a body as a result of delegation then delegatee of such authority has to work strictly within the field delegated.

If it works beyond the scope of delegation, in that event, it will be beyond the authority and may even in given circumstances vitiate the action.

A perusal of the resolution of the Management of Governing Body Annexure P-7, indicates that the said resolution was passed in context to part time faculty holding that no full time faculty should be employed.

It was further resolved that for the benefit of College the Chairman in consultation with the Principal will decide the matter and shall take action accordingly.

There is neither any 10 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document delegation not there could be any delegation to the Chairman or the Principal to dispense with the services of the petitioner.

Annexure P8 clearly indicates that the services of the petitioner have been dispensed with by the Principal presuming that the Board of Governot vide resolution dated 12.4.2008, had approved the termination.

Neither there has been any resolution qua the petitioner not any authority vested with the Principal to terminate the services of the petitioner.

Even if it is presumed that the petitioner was a probationer, his probation period having not been extended in three years as per Rule 8 mentioned hereinabove, his case was required to be referred to Committee mentioned in Rule 8 (2) (b) (ii) above.

In view of above discussion, I am of the considered opinion that the services of the petitioner have not been terminated by following the procedure under the Haryana Affiliated Colleges (Security of Service) Act 1979 or the rules framed thereunder by competent authority i.e., the Managing Committee.

As such the order dated 30.4.2008, Annexure P-8, terminating the services of the petitioner on the basis of resolution No.2 dated 12.4.2008, Annexure P-7, and the order passed by the Appellate Authority Tribunal Annexure P-11 dated 20.8.2009 are hereby set aside.

The petitioner will be entitled to be reinstated without the benefits of salary as has been undertaken by his counsel.

However, it is made clear that it will be open to the Governing Body to proceed against the petitioner in accordance with law by following Haryana Affiliated Colleges 11 Raj Kumar Arora CWP-16543-2009 (O&M) 2013.08.19 10:45 I attest to the accuracy and integrity of this document (Security of Service) Act 1979; Haryana Affiliated Colleges (Security of Service) Rules 1993 (amended in 2006) and the rules of natural justice.

However, the petitioner will not be entitled to financial benefits.

The respondents are directed to permit the petitioner to join within a period of one month against the post from which he had been terminated.

(M.M.S.BEDI) July 23, 2013.

JUDGE rka 12