Dr. Girish Kumar Singh v. The Union Of India & Ors

Patna High Court CWJC No.20645 of 2012 (15) dt.15-07-2013 2

19.10.2012 restricted the entry of the petitioner in the BIT premises, where the University is running. The petitioner submits that the relieving letter contained in Annexure-1 and Annexure-6 in substance has terminated his service leading to cessation of contract between the petitioner and the University. The petitioner assails the impugned order as being passed without providing an opportunity of hearing against mandatory provisions of Ordinance 8 (Conditions of Service of Teachers of University), contained in Annexure-9 to the Supplementary Affidavit. Clause 8.11(iii) of Ordinance-8 mandates that an Executive Council cannot terminate the service of the petitioner without providing an opportunity of hearing. The petitioner submits that the order relieving him of his duties is stigmatic and as such he would be entitled to an opportunity of hearing on that score too. Mr. A.B. Ojha, learned Senior counsel appearing for the Central University submits that Ordinance 8, contained Annexure-9 to the Supplementary Affidavit has not seen light of the day. It was only in its early stage of formulation not having concurrence of Central Government under section 43 of the Central Universities Act. Further more, the initial draft ordinance Patna High Court CWJC No.20645 of 2012 (15) dt.15-07-2013 3 does not find place even in the final draft prepared for approval of the Central Government and publication in the official gazette. He further submits that the reliance placed by the petitioner on the said Ordinance which was not even been approved as Draft Ordinance by the Central University, is misplaced and shall not be of any aid to the petitioner. Mr. Ojha further submits that the impugned order does not contain any stigma but a letter simplicitor relieving the petitioner of his duties and as such no prior notice was required. He next submits that the situation of the probationer is one of those who are on test and no notice is required for terminating the service of the petitioner. In support of his submission, he relies upon decisions in the case of Krishnadevaraya Education Trust and another Vs L.A Balakrishna, reported in AIR 2001 SC 625, particularly paragraphs 5 and 6; Rajesh Kohli Vs High Court of Jammu and Kashmir and anr, reported in (2010) 12 SCC 783; Rajendra Agricultural University vs Ashok Kumar Prasad & Ors, reported in AIR 2010 SC 259 and Pavanendra Narayan Verma vs Sanjay Gandhi P.G.I. OF Medical Sciences and anr, reported in AIR 2002 SC 23. Mr. Ojha submits that the authority is also vested with the power to terminate the services of the petitioner as well and in this Patna High Court CWJC No.20645 of 2012 (15) dt.15-07-2013 4 context he refers to Clause 16 of General Clauses Act, 1897 which states that power to appoint is to include power to suspend or dismiss unless different intention appears from the Statute. I have heard counsel for the parties. It is relevant to notice that during the pendency of this writ application, one Jainath Yadav was appointed as Assistant Professor in the Department of Computer Science in place of the petitioner by letter dated 9.4.2013. It would appear from perusal of the appointment letter that the appointment of Jainath Yadav is on probation for a period of two years and would be subject to the result of C.W.J.C. No.20645 of 2012. The issue is whether a teacher of a Central University who is on probation can be terminated without giving an opportunity of hearing. It is well settled that where the termination order carries stigma or where it is based on allegation, providing of an opportunity of hearing would be imperative in cases of Probationer as well, as observed in case reported in (2010)2 SCC

#169. In the instant case, as per the petitioner the Statute and Ordinance provide a prior opportunity of hearing even in case of termination of a probationer. The petitioner states that the Ordinance was made under section 28(i)(o) of the Central Universities Act. Clause 8.11 of the Ordinance provides that even Patna High Court CWJC No.20645 of 2012 (15) dt.15-07-2013 5 before terminating the service of a probationer, a show cause notice was required. The stand of the University is that the said Ordinance is still in its formative stage as it did not have required approval of the Central Government under section 43 of the Central Universities Act, 2009. It is further stand of the University that the said Ordinance in fact was never approved by the Central Government and came into existence under section 28(1)(0) of the Act only on

6.4.2013. Even as per the Ordiance on which the petitioner has relied provide for representation to the Executive Council against the order of Vice Chancellor terminating the service of a teacher under section 11 of the Central Universities Act, 2009. In such circumstances, in my view, the petitioner should have moved the Executive Council itself for redressal of his grievance. As the petitioner was pursuing his remedy before this court, an opportunity is granted to him to move the Executive Council against the order of termination under clause 11 of the Act. In case such representation is filed, the Executive Council would dispose of the same within further two months without prejudice. The appointment of Jainath Yadav which was made during the pendency of this writ application would be subject to Patna High Court CWJC No.20645 of 2012 (15) dt.15-07-2013 6 decision of the Executive Council. In case, if any party is aggrieved by the decision of the Executive Council, he would be at liberty to challenge the same. With the aforesaid observations and directions, this writ application stands disposed of. (Samarendra Pratap Singh, J) KHAN/-