I.s.chandrakar Vs State Of Chhattisgarh And Ors.

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No. 1556 of 2014

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I.S.Chandrakar S/o Late Shri H.R. Chandrakar Aged About 74 Years R/o B - 19/6, Indraprastha, Udaya Nagar, Sector -3, Tatibandh, P.S. Tatibandh, District Raipur C.G.

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---- Petitioner

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Versus

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State of Chhattisgarh Through Secretary Department Of Technical Education Mantralaya, Mahanadi Bhawan, New Raipur District Raipur C.G.

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Sarguja Vishwavidyalaya, Through Registrar, Surguja Vishwavidyalaya, Ambikapur C.G.

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Chancellor (Kuladhipati), Surguja Vishwavidyalaya, Through Secretary, Raj Bhawan Raipur C.G.

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Vice Chancellor, Surguja Vishwavidyalaya, Ambikapur C.G.

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R.D. Sharma Registrar, Surguja Vishwavidyalaya, Ambikapur C.G.

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Principal University Engineering College, Surguja Vishwavidyalaya, Ambikapur C.G.

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---- Respondents

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For Petitioner : Shri Chandresh Shrivastava, Advocate For Respondent : Shri Neeraj Choubey, Advocate

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Hon'ble Shri Justice Goutam Bhaduri

Order

24/04/2024

Heard.

Challenge in this petition is to the order dated 10/01/2014 (Annexure P/1) whereby the services of the petitioner was dispensed with by the Surguja Vishwavidyalaya, Amibkapur.

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The case of the petitioner is that he was appointed as Adjunct Professor on 03/07/2012 in exercise of power under Section 15 (4) of the C.G. Vishwavidyalaya Adhiniyam, 1973 (hereinafter referred to as the Adhiniyam, 1973). The appointment was by the then Vice Chancellor and according to the petitioner the Executive Council in its meeting dated 06/01/2013 approved the salary to be paid to the petitioner as per the provisions of Regulation 31. It is submitted on behalf of the petitioner that once the action has been taken by the Kulpati under Section 15 (4) of the Adhiniyam, 1973 he shall at the earliest opportunity report his action to the Executive Council. As per Section 15 (5) if the committee does not approve such action, it shall refer the matter to the Kuladhipati. Further as per Section 15 (6) of the Adhiniyam, 1973 the action taken by the Kulpati under sub-section (4) shall be deemed to be the action taken by the appropriate authority until it is set-aside by the Kuladhipati on a reference made under sub-section (5) or is set-aside by the Executive Council in appeal.

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Learned counsel for the petitioner would therefore submit that once the appointment of the petitioner was made by Annexure P/2, which was subsequently approved by the Executive Council, under Section 15 (5) of the Adhiniyam, 1973 Kuladhipati alone could have only terminated the services. The further submission is made that as per Section 55 of the Adhiniyam, 1973 any dispute about the constitution of University authorities and initially the appointment matter is liable to be referred to the Kuladhipati whose decision shall be final. However, the Vice Chancellor who was subsequently appointed canceled the appointment of the petitioner. He would further submit that till July, 2013 the salary

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was paid, however, from August, 2013 till his termination on 10/01/2014 the salary was not paid for which the legal notices were also served. He would further submit that the termination being de hors the rules, the same is liable to be set aside and the petitioner is entitled for the entire salary. Further he placed his reliance upon the law laid down by the Supreme Court in the matter of North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma & Others {(2021) 17 SCC 642}.

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Per contra, learned counsel for the respondent would submit that Section 15 (4) of the Adhiniyam, 1973 would not be applicable as the Kulpati could not exercise the power under Section 15 (4) of the Adhiniyam, 1973 as it will have a financial repercussion. The counsel would submit that the said appointment by the Kulpati was in haste on 03/07/2012 (Annexure P/2) was illegal and Section 49 (1) which has been referred in the appointment order would also show that unless appointment is recommended by the selection committee the appointment to the teaching post in the University cannot be done. In this case in entirity the facts were given a go bye.

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He would further submit that the age of the petitioner was 73 when he was appointed. It is contended that the age would reflect from the cause-title of the petition. It is stated that the appointment of the like nature to the public institution could not have been made by the the then Kulpati by misusing the power of appointment. He would further submit that the Adjunct facility is only to enhance the faculty and resource of University as per the guidelines of U.G.C. and the petitioner

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cannot be appointed as Adjunct Professor, therefore, the appointment itself was void ab initio. He placed his reliance in the law laid down by the Supreme Court in the matter of Union of India Vs. Mahendra Singh {2022 SCC OnLine SC 909} and Marathwada University Vs. Shesh Rao Balwant Rao Chavan {(1989) 3 SCC 132} and judgment of Patna High Court in Navin Kumar Yadav Vs. State of Bihar & Others {CWJC No.2103 of 2009, decided on 08/09/2011}.

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I have heard learned counsel for the parties and perused the documents.

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The appointment order of the petitioner is Annexure P/2 which purports that in exercise of power under Section 15 (4) and 49 (1) of the Adhiniyam, 1973, the then Kulpati, on 03/07/2012 subject to the approval by the Executive Council appointed the petitioner and the petitioner was appointed as Head of the Mechanical Department and was also to discharge the job of Principal.

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Sections 15 (4) (5) & (6) and Section 49 of the Adhiniyam, 1973, which are relevant are reproduced herein below:-

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15. Powers and duties of Kulpati.

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xxx	xxx	xxx
xxx	xxx	xxx
xxx	xxx	xxx

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(4) If in the opinion of the Kulpati any emergency has arisen which requires immediate action to be taken, the Kulpati shall take such action as he deems necessary and shall at the earliest opportunity thereafter report his action to such officer, authority, committee or other body as would have in the ordinary course dealt with the matter :

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Provided that the action taken by the Kulpati shall not commit the University to any recurring expenditure for a period of more than three months :

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Provided further that where any such action taken by the Kulpati affects any person in the service of the University such person shall be entitled to prefer, within thirty days from the date on which such action is communicated to him, an appeal to the Executive Council :

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Provided also that the power shall not extend to matters regarding amendment in the Ordinances, Statutes, Regulations or any matter relating to [xxx] appointments.

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(5) On receipt of a report under sub-section (4), if the authority, Committee or body concerned does not approve of the action taken by the Kulpati it shall refer the matter to the Kuladhipati whose decision thereon shall be final.

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(6) The action taken by the Kulpati under subsection (4) shall be deemed to be the action taken by the appropriate authority until it is set-aside by the Kuladhipati on a reference made under subsection (5) or is set-aside by the Executive Council on an appeal under the second proviso to subsection (4).

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49. Appointment to teaching posts. (1) No person shall be appointed-

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(i) as a Professor, Reader or Lecturer [xxx]; or

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(ii) to any other teaching post of the University paid by the University except on the recommendation of a committee of selection constituted in accordance with sub-section (2) :

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Provided that if appointment to any of the teaching posts aforesaid is not expected to continue for more than six months and cannot be delayed without detriment to the interest of the Departmental or institution maintained by the University, the Executive Council may make such appointment without obtaining the recommendation of the committee of selection constituted under sub-section (2) but the person so appointed shall not be retained on the same post for a period exceeding six months or appointed to another post in the service of the University except

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on the recommendation of the said committee of selection :

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Provided further that any such appointment purported to have been made under the preceding proviso prior to the 13th day of February, 1974 and continuing on such date shall continue till the 30th day of June, 1974 or the filling up of the post in accordance with sub-section (5), whichever is earlier.

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(2) The members of the committee of selection shall be :—

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(i) the Kulpati Chairman;

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[(i-a) xxx]

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[(ii) xxx]

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[(iii) one expert to be nominated by Kuladhipati from a panel, submitted by the Academic Council of three experts in the subject not connected with the University in any manner whatsoever;

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(iv) Three subject experts, not connected with the University in any manner whatsoever to be nominated by the Kuladhipati] :

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[Provided that at least one of the three experts shall be nominated from category of Scheduled Castes, Scheduled Tribes or Other Backward Classes. In case of non-availability of an expert from these categories, one Administrative Officer not below the rank of Commissioner, who belongs to reserved categories, shall be nominated.]

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[(v) x x x]

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[(3) Three members of the Selection Committee shall form a quorum.]

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[(4) The Committee shall investigate the merits of the various candidates, and shall recommend to the Executive Council the names, if any, of persons whom it considers suitable for the posts, arranged in order of merit :]

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[ Provided that no recommendation shall be made unless at least two experts nominated under clauses (iii) and (iv) of sub-section (2) are present in the meeting in which such recommendation is to be decided upon.]

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[(5) Out of the names so recommended under subsection (4), the Executive Council shall appoint persons in order of merit) :

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Provided that where Executive Council proposes to make the appointment otherwise than in accordance with the order of merit arranged by the committee, the Executive Council shall record its reasons in writing and submit its proposal for sanction of the Kuladhipati.

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Close reading of the aforesaid Sections would show that the Kulpati is vested with the emergency power to take such action as he deems necessary and shall at the earliest opportunity thereafter report his action to such authority of committee. Section 15 (5) of the Adhiniyam, 1973 purports that on receipt of a report under sub-section (4) if the Committee or body does not approve the action taken by the Kulpati it shall refer the matter to the Kuladhipati and Section 15 (6) of the Adhiniyam, 1973 purports that the action taken by the Kulpati under sub-section (4) shall be deemed to be the action taken by the appropriate authority until it is set-aside by the Kuladhipati or the Executive Council in exercise of power under sub-section (5) of Section 15.

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Since the appointment also contemplate Section 49 which is an appointment to the post of Teacher in the University, shows that there shall be a selection committee as sub-section (2) of Section 49 includes Kulpati, expert nominated by the Kuladhipati from a panel submitted by the Academic Council of three experts not connected with the University likewise three members of the selection committee shall form a quorum.

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The petitioner was appointed as Adjunct Professor as a Head of the

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Mechanical Department and was also to discharge the job of Principal. There is no document on record to show that name of petitioner was recommended by the selection committee as per Section 49 of the Adhiniyam, 1973. Furthermore, Section 15 (4) of the Adhiniyam, 1973 is attached with the proviso that the Kulpati is vested with power to take emergency action but it would not take into sweep any recurring expenditure for a period of more than three months. Further proviso clause shows that the emergency power shall not extend to matters regarding appointments.

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The plain reading of the aforesaid Section 15 (4) of the Adhiniyam, 1973 with the proviso clause would show that the Kulpati was denuded of the power to make any appointment and if the appointment has been specifically carved out as an exception with the emergency power, the appointment of the emergency power cannot be read to synchronize to the appointment. Consequently, the appointment itself was de hors the act, the same was ab initio void.

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The reference is also made to Section 15 (5) and the approval of the Executive Council but if the appointment itself was not within the domain of the Kulpati then any subsequent action cannot precipitate the same to be a justified. Section 55 of the Adhiniyam, 1973 further deals about the disputes about appointment which would only apply to valid appointment not the appointment which de hors the act. Therefore, the submission of the petitioner cannot be accepted to say that the petitioner having been appointed under emergency power under Section 15 (4) he would be entitled to continue.

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It is a well settled law that if statute provides particular thing to be done in particular manner, it should be done in that manner and not in any other manner. This proposition has recently been reiterated by the Supreme Court in the matter of Union of India Vs. Mahendra Singh {2022 SCC OnLine SC 909} and the Court at para 15 & 16 of the Judgment has held thus:-

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15. A three Judge Bench of this Court in a judgment reported as Chandra Kishore Jha v. Mahavir Prasad 10, held as under:

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“17………………..It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage : Nazir Ahmad v. King Emperor [(1935-36) 63 IA 372 : AIR 1936 PC 253 (2)], Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322 : 1954 SCR 1098], State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57].) An election petition under the rules could only have been presented in the open court up to 16-5-1995 till 4.15 p.m. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done…………….”

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16. The said principle has been followed by this Court in Cherukuri Mani v. Chief Secretary, Government of Andhra Pradesh 11 wherein this Court held as under:

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“14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure………….”

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It is also required to be considered that Kulpati in the instant case has

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no power at all to appoint the Teacher and appointment of Teacher can only be done by the Expert Committee. The Supreme Court in the

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matter of Marathwada University Vs. Shesh Rao Balwant Rao Chavan {(1989) 3 SCC 132} held that statutory authority cannot travel beyond the scope of power conferred to them and the Court at para 27 held thus:-

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These principles of ratification, apparently do not have any application with regard to exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified.

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Learned counsel for the petitioner submitted that the salary for the period of service already rendered by the petitioner must be disbursed to him and to support his contention he relied upon the judgment of the Supreme Court in North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma & Others {(2021) 17 SCC 642}. However, the precedent placed by the learned counsel for the petitioner is set up on different footings as in that case the petitioners who were AYUSH Doctors were claiming parity with the Allopathic Doctors and in that context the Supreme Court has held that the petitioners therein are entitled to salary for the period they have actually worked and that was not the case of illegal appointment. Whereas in the case at hand the appointment of the petitioner itself was held to be illegal, I do not find any reason for directing respondent authority to make payment of salary or consequential benefit to the petitioner. It is also trite law that “ Nullus Commodum Capere Potest De Injuria Sua Propria” , meaning thereby no person can take advantage of his own wrong which is elementary principle of law recognized by English Courts and Followed by Indian Courts subsequently.

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Since the amount of salary was paid from the fund of the University for a particular period, the University shall be at liberty to take appropriate action on due enquiry against the erring officers, if so advised, after giving them opportunity of hearing.

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Accordingly, the petition is dismissed.

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SD/Goutam Bhaduri Judge

Ashu

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WPS 1556 of 2014

HEAD-NOTE

Statutory authorities cannot exceed the power conferred on them under law and any action taken beyond the power conferred on them has no legal validity.

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oS/kkfud izkf/kdkjh fof/k ds varxZr mUgsa iznRr ‘kfDr dh lhek ls vkxs ugha c<+ ldrs] rFkk mudks iznRr ‘kfDr ls ijs dh xbZ dksbZ Hkh dkjZokbZ fof/kd oS/krk ugha j[krh gSA

I.s.chandrakar v. State Of Chhattisgarh And Ors.

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I.s.chandrakar v. State Of Chhattisgarh And Ors.

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