advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, March 28, 2017

However, we make it clear that in case any of the teachers has been working elsewhere or has been working in a different capacity in the Institute, such teachers shall not be entitled to the benefit of the above declaration. Their further fate will depend on the fresh decision to be taken by the appellant. The appellant-Institute shall take a fresh decision within a period of two months from the date of receipt of the representations from the affected teachers. Since we have set aside the decisions in the Fourteenth and Fifteenth Board Meetings, the contempt petitions and writ petitions do not survive. Accordingly, those contempt petitions and writ petitions are struck off from the file of the High Court of Judicature at Allahabad. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION



                    CIVIL APPEAL NOS.   4406-4418 OF 2017
             (Arising out of S.L.P.(C) Nos. 13914-13926 of 2016)


THE INDIAN INSTITUTE OF INFORMATION
TECHNOLOGY, DEOGHAT JHALWA
ALLAHABAD AND ANOTHER, ETC.            ...  APPELLANT (S)


                                   VERSUS

DR. ANURIKA VAISH AND OTHERS, ETC.          ... RESPONDENT (S)

                                    WITH

                    CIVIL APPEAL NOS. 4419-4420  OF 2017
              (Arising out of S.L.P.(C) Nos. 3566-3567 of 2017)



                               J U D G M E N T

KURIAN, J.:



Leave granted.

Certain appointments to the  post  of  Professor,  Associate  Professor  and
Assistant Professor made in various divisions  of  the  appellant-Institute,
pursuant to advertisement dated 30.01.2013, were subsequently  cancelled  by
the Board of Management (“Board”). The selection was held on 06.04.2013  and
the  incumbents  were  appointed  accordingly.  The  Board,  in  its  Eighth
Meeting, as Item No.16, took a decision  to  cancel  the  appointments.  The
relevant consideration reads as follows:

“ITEM NO.16

To consider the Status Report on Selection of Academic Staff done  on  April
6, 2013.

The Board considered the Status Report on  the  selection  of  the  Academic
Staff and deliberated upon it at length. In the context, in addition to  the
minutes as at Item No.1 of this meeting,  it  was  apprised  by  some  Board
members that the advertisement brought out by  IIITA  for  these  selections
was NOT as per  norms.  Also  for  some  of  the  appointments,  eligibility
criteria were unduly relaxed, taking incorrect pretext of  the  earlier  BOM
resolutions.

The Board also noticed that through a GO issued vide  F.No.3.11014/11/Q4-CDN
dated 19th July, 2004, MHRD had  advised  heads  of  all  autonomous  Bodies
prohibiting all the retiring Directors, for any action to make selections  /
promotions  two  -   three  months  before  the  expiry  of  their  term  or
retirement, as the case may  be.  Further,  the  erstwhile  director’s  term
expired on 26th December, 2012 and he was on six months extension  in  April
2013. Therefore, in April 2013, he was neither competent nor  authorised  to
call for any selections.

When these facts became known to the Board in this meeting, it became  clear
that  the  entire   process   of   selection   /   appointment   and   other
recommendations mentioned by the selection committee therein, was  wrong  ab
initio.

Accordingly, the BoM in this Meeting recommended,  in  supersession  to  the
earlier decisions of the  Board  in  this  matter,  that  all  selections  /
appointments done on April 6th, 2013 are CANCELLED. ...”

Based  on  the  above-said  decision,  the  teachers  were  terminated  from
service. They challenged the same before the High  Court  in  Writ  Petition
No.22558 of 2014 and connected  cases.  Those  cases  were  disposed  of  by
judgment dated 11.12.2015. Though the High Court has gone into  the  various
aspects, the Court finally found that the  decision-making  process  adopted
by the Board was  vitiated.  The  High  Court  was  of  the  view  that  the
appellant should have considered as to whether it was  bound  by  University
Grants Commission  Regulations  or  the  qualifications  prescribed  by  the
Institute and as advertised in the Notification for Selection. It  was  also
held that the relaxation of qualification had to be  individually  assessed,
having regard to the requirement based on experience, etc.  The  High  Court
hence set aside the Resolution at Item No.16 taken  in  the  Board  and  the
consequential termination  of  the  appointments.  To  quote  the  operative
portion:

“For all the aforesaid reasons  recorded  hereinabove  the  entire  decision
making process is clearly vitiated and the unclarity on  the  issue  of  the
authority of the respondents to undertake this exercise as also the  correct
application of rules and the law in this regard  therefore  persuade  us  to
strike down the action taken against the petitioners.

      Consequently, the impugned cancellation orders on  the  basis  of  the
impugned resolution of the 8th Board Meeting cannot  be  sustained  and  the
same are hereby quashed. The writ petitions are accordingly allowed and  the
impugned cancellation  orders  in  these  petitions  as  well  as  the  16th
Resolution of the 8th Board Meeting  are  hereby  quashed.  The  resolutions
passed in the 7th Board Meeting and 8th Board Meeting  only  in  so  far  as
they are adverse to the petitioners shall be open to  consideration  in  the
light of the observations made hereinabove.

      In view of the findings recorded by us hereinabove, we leave  it  open
to the Board to take a fresh decision as may be permissible in the light  of
the observations made hereinabove within three months after  opportunity  to
the petitioners.”



The appellant-Institute, in purported implementation of  the  directions  in
the judgment dated 11.12.2015 again unilaterally took certain  decisions  in
the Fourteenth and Fifteenth Meetings of the Board and  subsequently  issued
show-cause notices to the teachers as to why their  appointment  should  not
be cancelled.
Since some of the teachers were not reinstated despite  the  declaration  by
the High Court  that  the  termination  was  illegal,  they  filed  contempt
petitions. Since, show-cause notices were issued, some  teachers  challenged
those show-cause notices and the High  Court  has  stayed  those  show-cause
notices. It is at that stage, the appellant  has  chosen  to  challenge  the
common final judgment and order dated 11.12.2015 passed by  the  High  Court
of Judicature at Allahabad in Writ-A No.  22558  of  2014,  21309  of  2014,
21319 of 2014, 21595 of 2014, 37213 of 2014 and 36461 of 2014;  and  against
the Interim Order dated 16.03.2016 passed by the High  Court  of  Judicature
at Allahabad in Contempt Application (Civil) No. 645 of  2016  and  1033  of
2016; and against the Interim Order dated  04.04.2016  passed  by  the  High
Court of Judicature at Allahabad in Writ-A No. 14486 of 2016, 14488 of  2016
and 14490 of 2016; and against the Interim Order dated 13.04.2016 passed  by
the High Court of Judicature at Allahabad in Writ-A No. 16715 of 2016.
Having extensively heard Shri Sunil Gupta, learned Senior  Counsel  for  the
appellant and Shri Rakesh Dwivedi and Shri V. Giri, learned  Senior  Counsel
appearing for the affected teachers, other  learned  Counsel  appearing  for
teachers and Dr. Ashutosh Kumar Singh, respondent-in-person, we are  of  the
view that the whole                    ill-advised  exercise  undertaken  by
the appellant-Institute only led to unnecessary litigation. In the  judgment
dated 11.12.2015, the High Court has set aside Resolution at Item  No.16  of
the Eighth Board Meeting. It is seen from the discussion that  the  decision
to cancel the appointments was based  on  a  Status  Report  which  was  not
furnished to the affected teachers. The High  Court  hence  found  that  the
decision taken by the appellant-Institute is in violation of the  principles
of  natural  justice.  That  is  the  quintessence  of  the  judgment.   And
thereafter, the High Court gave liberty to the appellant  to  take  a  fresh
decision in accordance  with  law,  that  is  to  say,  after  affording  an
opportunity of hearing to the affected teachers.
All that the appellants should have done is to make available a copy of  the
Status  Report  discussed  in  the  Eighth  Board  Meeting  which   led   to
cancellation of their appointments and afford an  opportunity  of  making  a
representation and hearing.  Short  of  that,  the  appellant-Institute  has
taken several other steps. Maybe they have  intended  well  but  worked  out
poorly. The teachers could not  have  been  issued  the  show-cause  notices
based on any decision taken subsequent to the judgment.
Since we intend to remit the matters to the Institute with  a  direction  to
start the process from the stage of the judgment of  the  High  Court  dated
11.12.2015, we do not propose to  make  any  further  observations  in  this
regard.  Accordingly, these appeals are disposed of as follows:

The appellant-Institute shall serve a copy of the  Status  Report  discussed
in the Eighth Board Meeting to the  affected  teachers  forthwith  and  also
provide a further period of two weeks for making a fresh representation.  On
receipt of the representations, the affected  teachers  shall  be  given  an
opportunity of hearing on all the aspects referred to in the  Status  Report
and on the reasons for termination  as  referred  to  in  the  Eighth  Board
Meeting. Thereafter, the Board shall take a fresh decision in  the  case  of
each individual in accordance with law. We  make  it  clear  that  the  only
notice which the teachers could have been issued is  on  the  basis  of  the
consideration in the Eighth Board Meeting and  not  thereafter.  The  Status
Report considered by the Eighth Board Meeting and the decision taken by  the
Eighth Board Meeting shall be treated as show-cause notice by  the  affected
teachers.
The decisions in the Fourteenth and Fifteenth Board Meetings, as far as  the
further  course  of  action  for  implementation  of  the   judgment   dated
11.12.2015 is concerned, are wholly unwarranted and are set aside.
Since the cancellation of appointment  and  consequential  termination  have
been set aside by the High Court  in  the  judgment  dated  11.12.2015,  the
teachers concerned are to deemed to be in service under law  until  a  fresh
decision is taken as per the judgment. In this context, we may also  extract
a submission made by the Counsel for the  appellant-Institute  in  the  High
Court in Contempt Application No. 645 of 2016, which reads as follows:

“Shri Navin Sinha, learned Senior Advocate assisted  by  Shri  Rohan  Gupta,
for the opposite party, however, submits that in view of the  inquiry  being
undertaken  by  the  opposite  party   regarding   irregularities   in   the
appointment of the applicants and other appointees, they are not allowed  to
work against their post. However, he submits that as per  his  instructions,
the applicants/appointees would be paid their salary even for the period  of
non working i.e. from the date of order dated 11.12.2015 passed by the  Writ
Court till a decision is taken by  the  Board.  This  period  would  not  be
treated as the period of non working of the applicants/appointees.”


However, we make it clear that in case any of the teachers has been  working
elsewhere or has been working in a  different  capacity  in  the  Institute,
such  teachers  shall  not  be  entitled  to  the  benefit  of   the   above
declaration. Their further fate will depend on  the  fresh  decision  to  be
taken by the appellant.
The appellant-Institute shall take a fresh decision within a period  of  two
months from the date of receipt of the  representations  from  the  affected
teachers.
Since we have set aside the decisions in the Fourteenth and Fifteenth  Board
Meetings,  the  contempt  petitions  and  writ  petitions  do  not  survive.
Accordingly, those contempt petitions and  writ  petitions  are  struck  off
from the file of the High Court of Judicature at Allahabad.
There shall be no order as to costs.

                                                   .......................J.
                                                             (KURIAN JOSEPH)




                                                                  ……………………J.
                 (R. BANUMATHI)
New Delhi;
MARCH 24, 2017.
-----------------------
                                                                  REPORTABLE





-----------------------
7




No comments:

Post a Comment

Note: Only a member of this blog may post a comment.