Swapna Joshi JUDGMENT
B.P. Dharmadhikari, J.
1. By this petition under Article 226 of the Constitution of India, petitioner questions order/communication dated 12.03.2015, issued by the Hon'ble Chancellor, Rashtrasant Tukdoji Maharaj Nagpur University (Respondent No. 2) refusing to intervene and entertain her complaint/petition under Section 76[7] of the Maharashtra Universities Act, 1994 (hereinafter referred to as "the 1994 Act" for short) against the appointment of respondent No. 3. The Deputy Secretary to government has communicated the decision stating that there was no justification found to interfere with the decision taken by the University Authorities in the matter of said selection and appointment.
2. Petition was listed before Division Bench of this Court on 02.03.2016, and came to be adjourned to 11.03.2016. On 11.03.2016, it came up before other Bench and the Bench directed Registry to verify whether petition needed to be placed before the learned Single Judge. On 16.03.2016, Registry pointed out that challenge was covered under Rule 18[3] of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to as "the 1960 Rules" for short) and therefore, needed to be placed before the learned Single Judge. On 01.04.2016, the learned Single Judge issued notice. On 23.01.2017, the matter came up before the other Single Judge who directed the Registry to place the matter before Division Bench to find out whether the impugned order was a quasi judicial in nature or not ?
The order of learned Single Judge dated 23.01.2017, reads as under :
"By the order passed on 11.03.2016, the Division Bench directed the office to verify whether the petition would lie before the Single Judge. Accordingly, the office has endorsed that the impugned order is quasi-judicial order and the petition is placed before the Single Judge.
In my view, considering the controversy in the petition, it would be appropriate that the Division Bench considers whether the impugned order/decision is quasi-judicial for the purpose of Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules, 1960.
Office to place the matter before the Division Bench for appropriate orders."
Registry has therefore placed the matter before this Bench.
3. Accordingly we have heard learned counsel for the parties. Pleadings and prayers are perused with their assistance. They have taken us through provisions of Section 76 of the 1994 Act, as also the 1960 Rules. They have also relied upon the judgment of Hon'ble Supreme Court reported at MANU/SC/0200/2015 : (2015) 5 SCC 423 (Radhey Shyam and another.vrs. Chhabi Nath and others), a Division Bench order dated 03.08.2011 in Writ Petition No. 4065 of 2010 (Shri Shivaji Education Society, Amravati and another.vrs. Maharashtra University of Health Sciences and others) and a reported judgment of learned Single Judge of this Court reported at MANU/MH/0751/2013 : 2013 (6) All MR 741 (Dr. Shailaja Bhujangrao Wadikar.vrs. The Hon'ble Chancellor and another).
4. Provisions of Chapter XVII Rule 18 of the 1960 Rules deals with powers of Single Judge to finally dispose of applications under Article 226 or 227. Orders passed under various enactments which can be thus looked into by the learned Single Judge, are specified therein. At Sr. No. 41, orders passed under 1994 Act find mention. Expression "Order" employed in Rule 18 as per explanation thereto means any order passed by any judicial or quasi-judicial authority empowered to adjudicate under various enactments mentioned in that Rule. Thus, any order passed by any judicial or quasi-judicial authority empowered to adjudicate under 1994 Act needs to be assailed by filing a petition before the learned Single Judge of this Court.
5. Judgment of Hon'ble Supreme Court in case of (Radhey Shyam and another.vrs. Chhabi Nath and others (supra), particularly discussion therein in paragraph No. 10[7] shows that whenever anybody of persons having legal authority in law to determine questions affecting the rights of subjects, and having the duty to act judicially, acts in excess of that authority, it is subject to the controlling jurisdiction in writ. In paragraph No. 11 the Hon'ble Supreme Court states that the expression "judicial acts" does not refer to judicial orders of civil courts as the matter before the Hon'ble Supreme Court in which said expression was used arose out of orders of Election Tribunal. The Hon'ble Supreme Court also points out that except its judgment in case of Surya Dev Rai.vrs. Ram Chander Rai reported at MANU/SC/0559/2003 : (2003) 6 SCC 675, when the question as to scope of jurisdiction arose, it was clarified that orders of judicial courts stood on different footing from quasi-judicial orders of the Authorities or Tribunals.
6. In Writ Petition No. 4065 of 2010 (supra), the employer had questioned report submitted by the Grievance Committee to Management Council under the provisions of Maharashtra University of Health Sciences Act, 1998. Question was - Whether matter should be considered by the learned Single Judge ? After considering various judgments, on 03.08.2011 this Court held that the controversy needed to be placed before learned Single Judge. One of us (B.P. Dharmadhikari, J) is party to that judgment. Discussion in paragraph No. 6 onwards upto to paragraph No. 10 is applicable and attracted even in present matter.
7. Section 76[7] of the 1994 Act reads as under :
"76 (7) If, on a petition by any person directly affected, or suo motu, the Chancellor, after making or having made such inquiries or obtaining or having obtained such explanations, including explanations from the teachers whose appointments are likely to be affected, as may be or may have been necessary, is satisfied that the appointment of a teacher of the university, made by any authority or officer of the university at any time was not in accordance with the law at that time in force, the Chancellor may, by order notwithstanding anything contained in the contract relating to the conditions of service of such teacher, direct the Vice-Chancellor to terminate his appointment after giving him one month's notice or one month's salary in lieu of such notice, and the Vice-Chancellor shall forthwith company and take steps for a fresh selection to be made. The person whose appointment has been so terminated shall be eligible to apply again for the same post."
8. Thus, when the power is used, it affects civil right of a person already appointed or employed. When this sub-section [7] is read with Sub-sections [8] and [9], consequences are such person against whom power is used is, therefore thrown out of service, though there is no stigma cast upon him. Not casting stigma by itself would not mean that there are no civil consequences. The Hon'ble Chancellor may exercise the powers on receipt of representation/complaint or even suo motu. Opportunity needs to be given to such person who is likely to be affected and for that purpose, inquiry is also contemplated. Obtaining of explanation is also expressly provided for. Such proceedings result into civil consequences, and therefore, expect compliance with principles of natural justice, by giving affected person an opportunity to submit explanation. Opportunity to explain and an inquiry, therefore, shows inbuilt mechanism with principles of natural justice inherent in it. Merely because the office of Hon'ble Chancellor rejects the prayer and upholds the selection, nature of power and jurisdiction does not undergo any change.
9. We need not comment more on this sub-section [7] of Section 76 of the 1994 Act, as precisely very same provision and very same issue arose before the learned Single Judge at Aurangabad in case of (Dr. Shailaja Bhujangrao Wadikar.vrs. The Hon'ble Chancellor and another (supra). There, the learned Single Judge has interpreted the provisions and after looking into various judgments, in paragraph Nos. 33 and 34 found that principles of natural justice were not followed and there were no reasons recorded. The impugned order of refusing to intervene was therefore, in that matter quashed and set aside and matter was placed back before the Hon'ble Vice-Chancellor. Discussion therein is squarely attracted here.
10. In the light of this discussion, we find that the matter has been rightly placed before the learned Single Judge of this Court.
11. Registry to proceed further accordingly.
© Manupatra Information Solutions Pvt. Ltd.