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
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
