Full Judgment Text
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PETITIONER:
DR. J. SHASHIDHARA PRASAD
Vs.
RESPONDENT:
GOVERNOR OF KARNATAKA & ANR.
DATE OF JUDGMENT: 27/11/1998
BENCH:
M. Srinivasan, A.P. Misra.
JUDGMENT:
1. Delay condoned. Leave granted.
2. Heard learned counsel on both sides at length.
3. The facts which are necessary for the purpose of this
judgment are as follows:
The Governor of Karnataka, who is the Chancellor of
the Mysore University, selected the appellant herein, who
was Professor in Physics in the University of Mysore to be
the Vice Chancellor of the said University while exercising
his powers under Section 11 of the Karnataka State
Universities Act, 1976. An order was passed by him on
August 20, 1997 by which he appointed the appellant herein
as Vice Chancellor for a period of three years with effect
from September 4, 1997. But on the very next day, i.e. on
August 21, 1997, he passed another order referring to a news
item which appeared in the Times of India in respect of the
appellant herein stating that he had been facing a criminal
case and had been named as the Vice Chancellor. The order
passed by the Chancellor stated that he was not aware
earlier of the pendency of the criminal case as against the
appellant herein and that he found it not desirable to
appoint the appellant as Vice Chancellor. Consequently, the
earlier order of appointment was rescinded by the later
order.
4. Aggrieved thereby the appellant filed a
writ petition in the High Court of Karnataka which was taken
on file as writ Petition No. 23086 of 1997. In the writ
petition It was contended by the appellant that in the
criminal case he was acquitted later as the charge was found
to be unsustainable and that the order of the Chancellor
rescinding the earlier order was not valid inasmuch as he
had not been given any opportunity to be heard before It.
The High Court dismissed the writ petition taking the view
that it was for the Chancellor to decide whether the
appellant could be appointed as the Vice Chancellor and even
the pendency of the criminal case was sufficient for him to
cancel the order of appointment inasmuch as it had been
passed immediately and much before the date on which the
appointment could become effective. The appellant
challenged the said order in a writ appeal. That was
dismissed by a Division Bench of the High Court. The
appellant brought it to this Court by way of a special leave
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petition. The appellant had also filed a review petition in
the High Court. In the special leave petition; the
appellant made a submission that in the review petition,
filed before the High Court, notice had been issued and
therefore, he won Id withdraw the special leave petition,
Consequently, this Court dismissed that special leave
petition as withdrawn. Subsequently, the review petition,
filed by the appellant, was dismissed by the High Court on
the ground that the acquittal of the appellant in the
criminal case was subsequent to the order of the Chancellor
and on the date on which that order was made, the
proceedings in the criminal case were pending and,
therefore, it was supported by proper reasons.
Consequently, the review petition was dismissed. Aggrieved
thereby, the appellant has preferred these appeals on
special leave against both the original order in the writ
appeal and the order on the review petition .
5. Mr. P P Rao, learned senior counsel has put
forward two contentions: (1) the appellant was entitled to
notice before the order was passed by the Chancellor; and
(2) the order casts a stigma against the appellant and
principles of natural justice required an opportunity to be
given to the appellant before such an order was passed. It
was contended that if such an opportunity had been given,
the appellant would have brought to the notice of the
Chancellor that "in the criminal case the judgment would be
pronounced within a few days and would have requested the
Chancellor to wait for a few days before passing any order.
So far as this factual aspect "is concerned, there no such
averment in the writ it petition filed by the appellant in
the High Court. However, it is not necessary for us to go
into that aspect of the case.
6. In support of his contention, Mr. Rao has
cited various decisions. First in the line is the decision
in S. Govindaraju vs. Karnataka S.R.T.C. and Anr. (1986)
3 SCC 273. In that case the appellant therein was selected
for appointment as Conductor in the Karnataka State Road
Transport Corporation. He was not given a regular
appointment but he was appointed to work as Conductor in
temporary vacancy. He continued to work for a period of
more than 240 days. An order was passed against him
terminating his services. But the Send termination order
also directed that he would forfeit his chance for
appointment in terms of selection and his name shall stand
deleted from the select list. In such a situation, the
Bench of this Court held that the appellant therein had the
right to be given an opportunity before such an order of
termination was passed. The relevant passage in the
judgment reads thus :
"There is no dispute that the appellants services
were terminated on the ground of his being found unsuitable
for the appointment and as a result of which his name was
deleted from the select list. and he forfeited his chance
for appointment. Once a candidate is selected and his name
is included in the select list for appointment in accordance
with the Regulations he gets a right to be considered for
appointment as and when vacancy arises. On the removal of
his name from the select list serious consequences entail as
he forfeits his right to employment in future. In such a
situation even though the Regulations do not stipulate for
affording any opportunity to the employee would be entitled
to an opportunity of explanation, though no elaborate
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enquiry would be necessary. Giving an opportunity of
explanation would meet the bare minimal requirement of
natural justice. Before the services of an employee are
terminated resulting in forfeiture of his right to be
considered for employment, opportunity of explanation must
be afforded to the employee concerned."
7. This ruling will not have any application in
the present case as it is seen that the appellant therein
was working as Conductor for some time and the order of
termination itself precluded his chances for appointment in
future also and his name was deleted from the select list.
In the background of such facts, the ruling was given. It
is not necessary for us to consider whether the observation
regarding a person in the select list is still good law in
view of the subsequent rulings of this Court.
8. Learned Senior counsel for the appellant
has invited our attention to the judgment in Shrawan Kumar
Jha & Ors. vs. State of Bihar & Ors. 1991 Supp (1) SCC
330. In that case the appellants, who were 175 in number
were appointed as Assistant Teachers by the District
Superintendent of Education, Dhanbad by order dated May 28,
1988. By order dated November 2, 1988, the Deputy
Development Commissioner cancelled their appointments. The
question whether they had joined duty or not was a disputed
one and the Court did not go into the same. On the other
hand, the Court held that the principles of natural justice
demanded opportunity to be given to them before their
appointments were cancelled. While allowing the appeal, the
Court also directed the Secretary (Education), Government of
Bihar or other persons nominated by him to give an
opportunity of hearing to the appellants and give a finding
as to whether, they were validly appointed as Assistant
Teachers. They were also directed to determine as to
whether any of the teachers had joined their respective
schools and for how much duration and that in case some of
them had joined their schools and worked, they should be
paid their salary for such period.
9. This ruling does not help the appellant in the
present case as it is seen that the order of cancellation
came long after the date specified in the order of
appointment for the appellants to join their respective
posts. In the present case the order of cancellation was
passed the very next day, long before the date on which the
appellant was to take charge as Vice Chancellor.
10. As against this Mr. K.K. Venugopal learned
Senior counsel appearing for the second respondent, drew our
attention to the judgment in Union Territory of Chandigarh
vs. Dilbagh Singh (1993) 1 SCC 154. Reliance is placed on
paragraphs 11 and 12 of the judgment, which read as follows
:
" 11 . In Shankarasan Dash vs. Union of
India, a Constitution Bench of this Court which had
occasion to examine the auestion whether a
candidate seeing appointment to a civil post can be
regarded to have acquired an indefeasible right to
appointment in such post merely because of the
appearance of his name in the merit list (select
list) of candidates for such post has answered the
question in the negati ve by enunciating the correct
legal position thus :
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"It is not correct to say that if a number
of vacancies are notified for appointment and
adequate number of candidates are found fit, the
successful candidates acquire an indefeasible right
to be appointed which cannot legitimately denied.
Ordinarily the notification merely amounts to an
invitation to qualified candidates to apply for
recruitment and on their selection they do not
acquire any right to the post. Unless the relevant
recruitment rules so indicate, the State is under no
legal duty to fill up all or any of the vacancies.
However, 11 does not mean that the State has the
licence of acting in an arbitrary manner. The
decision not to fill up the vacancies has to be
taken bona tide for appropriate reasons. And if the
vacancies or any of them are filled up, the State is
bound to respect the comparative merit of the
candidates, as reflected at the recruitment test,
and no discrimination can be permitted. This
correct position has been consistently followed by
this Court, and we do not find any discordant note
in the decisions in the State of Haryana vs.
Subhash Chander Marwaha. Neelima Shangla (Miss) v.
State of Haryana or Jitender Kumar v. State of
Punjab."
12. If we have regard to the above
enunciation that a candidate who finds a place in
the select list as a candidate selected for
appointment to a civil post, does not acquire an
indefeasible right to be appointed in such post in
the absence of any specific rule entitling him for
such appointment and he could be aggrieved by his
non-appointment only when the administration does so
either arbitrarily or for no bona tide reasons, it
follows as a necessary concomitant that such
candidate even if has a legitimate expectation of
being appointed in such posts due to his name
finding a place in the select list of candidates,
cannot claim to have a right to be heard before such
select list is cancelled for bona tide and valid
reasons and not arbitrarily. In the instant case,
when the Chandigarh Administration which received
the complaints about the unfair and injudicious
manner in which select list of candidates for
appointment as conductors in CTU was prepared by the
Selection Board constitute for the purpose, found
those complaints to be well founded on an enquiry
got made in that regard, we are unable to find that
the Chandigarh Administration had acted either
arbitrarily or without bona fide and valid reasons
in cancelling such dubious select I list. Hence,
the contentions of the learned counsel for the
respondents as to the sustainabitity of the judgment
of CAT under appeal on the ground of non-affording
of an opportunity of hearing to the respondents
(candidates in the select list) is a misconceived
one and is consequently rejected."
11. Mr. S Vijay Shankar, learned Advocate General
of Karnataka appearing for respondent No.1 has placed
reliance on the judgment in State of U.P. & Anr. v. Girish
Bihari & Ors. (1997) 4 SCC 362. In that case the respondent
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was an IPS officer and was due to retire on superannuation
on 31.3.96. An order was issued by the Governor on
20.3.1996 granting an extension of service for six months
from 31.3.96. But on 23.3.1996, the order of extension was
cancelled.
The question was, whether the respondent therein was
entitled to have an opportunity of hearing before the order
of cancellation was made. The Court answered the question
in negative. The Court answered the question in negative.
The Court also referred to the judgment in Shrawan Kumar’s
case (supra) and observed thus:
"A Division Bench of this Court comprising
Kuldip Singh and K. Ramaswamy, JJ. observed that
the candidates should have been given an opportunity
of hearing before their appointments were cancelled.
The court accordingly directed the Solicitor General
to ask the Secretary (Education), Government of
Bihar to grant an opportunity of hearing to the
candidates and to give a finding as to whether they
were validly appointed as Assistant Teacher. The
Court also ordered that if anyone had actually
worked as a Teacher, he or she would be entitled to
the salary for that period. It is interesting to
note that this Court while directing that a hearing
be given to those appointed as Assistant Teachers
did not grant any relief in terms of actual
appointment in pursuance to the appointment letters,
Nor did the Court order for any pecuniary benefits
being given to those appellants pursuant to the
appointment letters. Salary, etc. were ordered to
be paid only in case any one of those candidates had
actually joined and worked."
12. The Court held that till the order of
extension of service could become operative no right under
the order had vested in the incumbent and it was therefore,
not necessary to grant him hearing before the extension
order was cancelled. The Court also pointed out that the
respondent therein may or may not have accepted the offer
and till the order came into force, no vested right could
have arisen. Consequently, the Court held that no
opportunity was required to be given to the incumbent before
cancelling the said order. The principles laid down in the
aforesaid two cases will certainly apply in the present case
and in our opinion, there was no necessity for giving an
opportunity to the appellant before the chancellor passed
the order dated 21.8.97 rescinding the earlier order dated
20.8.97.
13. Turning to the second aspect of the matter,
the contention of learned counsel for the appellant is that
the order casts a stigma and therefore, the principles of
natural justice should have been satisfied. We are of the
opinion that there is no merit in this contention. The
relevant part of the order cancelling the appointment reads
thus:
"Whereas under the above circumstances, I do
not find it desirable to appoint Dr. J Shashidhara
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Prasad as the Vice Chancellor."
It is entirely different from saying that the
appellant was an undesirable person and that he should not
be appointed. But what the order meant was only that in
view of the facts stated earlier in that order it was not
desirable on the part of the Chancellor to appoint this
particular person. It does not, in our opinion, cast any
stigma on the appellant. If in future any vacancy arises and
an occasion arises for the selection panel to consider
different names to the post, nothing prevents that panel
from considering the name of the appellant also.
14. Learned counsel for the appellant cited the
judgment in Jagdish Mitter vs. Union of India AIR 1964
Supreme Court 449 in support of his contention. It is seen
that the facts of that case are entirely different and in
the view which have expressed on the facts of this case. It
is not necessary to consider the said ruling.
15. Learned counsel placed reliance on the
decision in Dr. Bool Chand vs. the chancellor, Kurukshetra
University 1968 (1) SCR 434 and drew our attention to
certain passages in that judgment but we find that on the
facts of that case, it was held that sufficient opportunity
had been given to the person aggrieved and the order of
termination was upheld. The ruling will not have any bearing
in the present case.
16. Learned counsel invited our attention to the
Judgment in D. Subba Rao vs. The State of Andhra Pradesh
AIR 1975 SC 94. The Division Bench in that case, while
quashing the removal of the President of Panchayat Samithi
on the ground that he was denied an opportunity to be heard,
directed the concerned authority to give an opportunity to
him to make his representation against the charges set out
in the notice and till an order was passed, the position
which was then obtained was to be maintained provisionally.
The facts of the case are entirely different and will not
help the appellant herein.
17. The next decision referred to is the judgment
in C L Kapoor vs. Jagmohan & Ors. (1981)1 SCR 746.
Reliance was placed on the following passage in the
judgment:
"In our view the principles of natural
justice know of no exclusionary rule dependent on
whether it would have made any difference if natural
justice had been observed. The non-observance of
natural justice is itself prejudice to any man and
proof of prejudice independently of proof of denial
of natural justice is unnecessary. It will come from
a person who has denied justice that the person who
has been denied justice is not prejudiced. As we
said earlier where on the admitted or indisputable
facts only one conclusion is possible and under the
law only one penalty is permissible, the Court may
not issue its writ to compel the observance of
natural justice, not because it is not necessary to
observe natural justice but because Courts do not
issue futile writs."
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The aforesaid passage itself shows that the Court
will refuse to issue a writ which will be futile even after
there had been failure to observe the principles of natural
justice. On the facts of the present case, it is not
disputed that the chancellor has appointed the second
respondent as Vice chancellor after cancelling the
appointment of the appellant. It is also not disputed that
the criminal case was pending against the appellant on the
date on which the order of cancellation of the appellant was
made.
18. As we have come to the conclusion that the
order passed on August 21, 1997 rescinding the earlier order
of appointment is valid, we do not find any merit in these
appeals and the same are accordingly dismissed. There will
be no order as to costs.