WPSB/578/2018 of DR. AAFTAB AHMED Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition No. 578 of 2018 (S/B)

Dr. Aaftab Ahmed

……..…Petitioner

State of Uttarakhand and others

……....Respondents

Dated: 27[th] April, 2019

Coram: Hon’ble Ramesh Ranganathan, C.J.Hon’ble N.S. Dhanik, J.

Ramesh Ranganathan, C.J. (Oral)

Heard Sri Ajay Veer Pundir, learned Counsel for the petitioner, Sri J.C. Pande, learned Brief Holder for the State Government, Sri Paresh Tripathi, learned Counsel for the H.N.B. Garhwal Central University, and Sri Pramod Bailwal, learned Counsel for the 4[th] and 5[th] respondents.

2. The petitioner has invoked the jurisdiction of this Court seeking writ of certiorari to quash the impugned order of termination dated 08.10.2018 passed by the Committee of Management.

3. Facts, to the limited extent necessary, are that the petitioner was appointed as the Principal of the 4[th] respondent institution on 22.07.2015, on the 3[rd] respondent according his approval vide proceedings dated 06.07.2015. On completion of satisfactory service during probation, the petitioner’s services were absorbed when grant-in-aid proceedings were issued on 11.08.2017. According to the petitioner, the 5[th] respondent was inimical to him, and it is in such circumstances that the impugned order of termination was passed on 08.10.2018. The petitioner would contend that, since the subject institution was provincialized by proceedings dated 27.09.2018, it ceased to remain grant-in-aid institution thereafter, and became

Government College from that date; consequently, the impugned order of termination dated 08.10.2018, passed by the erstwhile Committee of Management, is without jurisdiction; even otherwise, the impugned order was passed without an enquiry being conducted into the allegations levelled against the petitioner; and the impugned order is bereft of reasons and is liable to be set aside.

4. In the counter affidavit, filed by the 1[st] respondent, it is stated that the college was affiliated to the H.N.B. Garhwal University; the said college was completely provincialized by the Government of Uttarakhand vide proceedings dated 27.09.2018; all the duly adjusted employees had become Government employees on that date; and thereafter no authority, other than the Government of Uttarakhand, could take disciplinary action against Government employee (petitioner) with regards the duties rendered by him. It is further stated that the Government of Uttarakhand, vide letter dated 27.09.2018, had provincialized the said college which was thereafter required to be treated as Government college, and to be governed by the Rules and Regulations prescribed by the Government of Uttarakhand.

5. In the counter affidavit, filed on behalf of the 4[th] and 5[th]respondents, it is stated that the 4[th] respondent institution is Government-aided institution under the control of the Committee of Management; the said institution was affiliated to the H.N.B. Garhwal University, which is Central University under Section 3(1) of the Central Universities Act, 2009; the provisions of the Central Universities Act, 2009 were, therefore, applicable to the 4[th]respondent institution; on the basis of fake and forged document, the petitioner sought appointment to the post of Principal in the 4[th]respondent institution; report dated 22.05.2018 was sent by the Secretary, Rudali Degree College, Rudali informing the 4[th] respondent that the experience certificate of the petitioner, which was sent for verification, was not issued by the said college; an enquiry wasinitiated against the petitioner for seeking appointment to the post of Principal on the basis of fake and forged document; the letter dated 27.09.2018, issued by the 1[st] respondent regarding provincialization, was subject to fulfillment of the terms and conditions mentioned therein, meaning thereby that, until the said terms and conditions were fulfilled, the 4[th] respondent institution could not be treated to have been provincialized; even as on date, neither were the said conditions fulfilled nor has the Government made any effort to take over the 4[th]respondent institution by executing transfer deed in favour of the Government; the services of the employees of the 4[th] respondent institution have also not been regularized till date; as on date, the entire control and management of the 4[th] respondent institution is with the management committee of the said college; after conducting an enquiry, and after giving an opportunity to the petitioner, it was found that the petitioner had obtained fake and forged certificate of experience; the 4[th] respondent institution passed the order of termination dated 08.10.2018 as provided under Regulation 49-O; in terms of Section 35 of the Central Universities Act, 2009, the petitioner had the alternate remedy of preferring an appeal to the Executive Council; the petitioner was issued show cause notices dated 19.09.2018 and 29.09.2018 to which he submitted his reply on 05.10.2018; and, as such, the petitioner was afforded an opportunity of being heard.

6. The impugned order must be quashed on the following grounds. Firstly because by the date, the impugned order was passed by the Committee of Management on 08.10.2018, the said institution had already been provincialized on 27.09.2018; and as it became Government College on that very date, neither the 4[th] respondent nor 5[th] respondent had jurisdiction to issue the impugned order. Since Sri Pramod Bailwal, learned Counsel for the 4[th] respondent institution, would submit that the conditions of transfer have not been complied with as yet, our attention was drawn by Sri Paresh Tripathi, learned Standing Counsel for the respondent University, to the contents of the

said letter to submit that, on fulfillment of the terms and conditions stipulated therein, the order of provincialization was to take effect from the date is was issued i.e. 27.09.2018; and, even if the conditions stipulated in the said letter were to be fulfilled in its entirety later, the date of provincialization would, nonetheless, remain as 27.09.2018.

7. As provincialization of the said institution, as stated in the letter dated 27.09.2018, is to take effect from the same date i.e. 27.09.2018, and as the Committee of Management, can only exercise supervision and control over Government-aided institutions, and not over Government Colleges, they lacked jurisdiction to pass the impugned order. Even otherwise, in reply to the show cause notices issued by 4[th]and 5[th] respondents, the petitioner submitted his reply thereto vide his letter dated 05.10.2018. None of the contentions, put forth by the petitioner in his reply to the show cause notices, were even referred to in the impugned order dated 08.10.2018 much less dealt with. vague and bald order was passed that, as result of forgery being found in the enquiry on the experience certificate, his services were terminated. Admittedly, neither was any chargesheet issued nor was any departmental enquiry conducted against the petitioner, giving him an opportunity of producing his evidence or to cross-examine the witnesses presented on behalf of the institution. The order of termination was based on an enquiry conducted behind the petitioner’s back. In any event, the impugned order is bereft of reasons and is liable to be set aside on this ground also.8. With regards the contention, urged on behalf of 4[th] and 5[th]respondents, that the petitioner has the remedy of preferring an appeal to the Executive Council of the University under Section 35 of the Central Universities Act, 2009, Sri Paresh Tripathi, learned Standing Counsel for the respondent University, would submit that the provisions of Section 35 are applicable only to employees of the University and to institutions maintained by the University, and not to employees of affiliated colleges. While we find considerable force in

this submission of Sri Paresh Tripathi, learned counsel, it is unnecessary for us to dwell on this aspect, since existence of an alternate remedy is not bar for the exercise of jurisdiction under Article 226 of the Constitution of India. The power of judicial review, under Article 226 of the Constitution, is part of the basic structure of the Constitution of India (L. Chandra Kumar v. Union of India,(1997) 3 SCC 261), and such power cannot be negated or circumscribed even by an amendment to the Constitution, let alone by legislation-plenary or subordinate. Existence of an alternative remedy would not bar this Court from exercising its jurisdiction in cases where the impugned order was passed in violation of principles of natural justice or is without jurisdiction (Whirlpool Corporation v. Registrar of Trade Marks,(1998) 8 SCC 1)

9. Viewed from any angle, the impugned order must be, and is accordingly, set aside. The writ petition is allowed. However, in the circumstances, without costs. We make it clear that we have not expressed any opinion on the truth or otherwise of the allegations levelled against the petitioner and the order, now passed by us, shall not disable the competent authority from taking disciplinary action, against the petitioner, in accordance with law.

(N.S. Dhanik, J.) 27.04.2019

Sanjay

(Ramesh Ranganathan, C.J.) 27.04.2019