Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5114/2017
Raviprakash Govindrao Dani,
Aged : 62 year, Occ : Retired
Scientists, R/o C/o Mr.P.M.Birsiwale,
Happy Home, Mama Road,
Dharampeth, Nagpur – 440 010. ..... PETITIONER
...V E R S U S...
1. The Chancellor,
Dr. Panjabrao Deshmukh Krushi
Vidhyapeeth, Rajbhawan,
Malbar Hills, Mumbai.
2. The State of Maharashtra,
Through its Secretary,
Department of Revenue and
Agriculture, Mantralaya,
Mumbai.
3. Dr. Panjabrao Deshmukh Krushi
Vidhyapeeth, through its Registrar,
Akola. … RESPONDENTS
Shri A. S. Kilor, Advocate for the petitioner.
Shri S. P. Dharmadhikari, Senior Counsel with Mrs. K.S. Joshi, Additional Government
Pleader for respondent Nos.1 and 2.
Shri A. R. Patil, Advocate for the respondent No.3.
CORAM: B.P.DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
DATED : 10/08/2017.
ORAL JUDGMENT : (PER B. P. DHARMADHIKARI, J.)
1. Looking to the nature of controversy, Rule has been
issued and made returnable forthwith by consent of parties.
Accordingly, we have heard Shri Kilor, learned counsel for the
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petitioner, Shri Dharmadhikari, learned Senior counsel with Mrs. Joshi,
learned Additional Government Pleader for respondent Nos. 1 & 2 and
Shri Patil, learned counsel for respondent No.3 – Dr. Panjabrao
Deshmukh Krushi Vidyapeeth, Akola.
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2. The order dated 29 July, 2017, issued by the Governor
of Maharashtra as Chancellor of respondent No.3 – University,
terminating the services of petitioner as ViceChancellor of respondent
No.3 – Agriculture University, has been questioned in the present
matter.
3. It is not in dispute that the petitioner was appointed on
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13 August, 2012 by the Chancellor for a term of 5 years from
14/08/2012 and otherwise his term was to expire on 13/08/2017.
4. Termination is due to the fact that the petitioner is a
Citizen of United States of America and, therefore, not eligible to
occupy the post as ViceChancellor.
5. Shri Kilor, learned counsel submits that in the
advertisement published in the Newspaper in April, 2012, inviting
applications for the post of ViceChancellor, citizenship of India was not
shown as an essential requirement. The advertisement carries reference
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st th
to Government Orders dated 21 July, 2010 and 5 July, 2011. Neither
these orders nor Section 17 of the Maharashtra Agricultural Universities
(Krishi Vidyapeeths) Act, 1983 (hereinafter mentioned as “Maharashtra
Act”) contemplate citizenship of India, as an eligibility condition. He has
invited our attention to the University Grants Commission (Minimum
Qualifications for Appointment of Teachers and Other Academic Staff in
Universities and Colleges and Measures for the Maintenance of
Standards in Higher Education) Regulations, 2010, (hereinafter referred
to as 2010 Regulations) particularly its Clause 7.3.0 dealing with the
ViceChancellor, to urge that there also citizenship of India is not
prescribed as an ingredient.
6. Resume given by the petitioner for consideration at the
time of applying for the post is also relied upon by him to reveal that
citizenship of United States of America with overseas citizen of India
status and life long VISA as also permission to stay / work in India, are
disclosed therein and have not been suppressed. Thus, with open eyes,
the appointment order was issued after candidature of the petitioner
was evaluated by a Committee presided over by a retired Judge of
Hon'ble Supreme Court found him fit and eligible. Hence, reason that
the petitioner is not a citizen of India, cannot stand on facts and in law.
7. Shri Kilor, learned counsel has pointed out that on
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21/12/2015, there was a complaint made to the Chancellor as also to
the ProChancellor by the Citizen Forum and in it, the fact that the
petitioner is not a citizen of India was pointed out. On 22/02/2016,
comments of the petitioner upon it were called for. The petitioner gave
his reply on 09/03/2016 and made clean breast of the matter. He also
pointed out that previously in Rahuri and Parbhani Universities, similar
appointments of persons with same status were made. The Pro
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Chancellor himself, thereafter, made some complaint on 5 April, 2016.
Another explanation of the petitioner was called for, however, in said
notice, it was expressly stipulated that no reply about citizenship was
needed. The petitioner replied to it on 20/04/2016.
8. Thereafter, there was no further development and
suddenly, the petitioner received the impugned communication. Shri
Kilor, learned counsel points out that the impugned communication
mostly places reliance upon the advice / opinions tendered by the State
Ministry for Law and Judiciary, Advocate General and Ministry of
External Affairs of Government of India. He has taken us through the
same. These documents / opinions are filed on record by respondent
Nos.1 and 2 as a part of their reply. He submits that the authorities
expressing their opinions, expressly pointed out absence of material
and, therefore, the office of the Chancellor ought to have conducted a
proper enquiry without relying upon it. He also submits that the office
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of the Chancellor, while relying upon these opinions, has selected some
part of it while other part has been conveniently ignored.
9. Inviting attention to the provisions of Section 17 of
Maharashtra Act, he argues that under subSection (6)(a), the
Chancellor may remove the ViceChancellor at any time on the charges
of neglect or for failure to carry out responsibilities. Under subSection
(6)(b), the Chancellor has to reach an opinion that ViceChancellor
omits or refuses to carry out provisions of the Maharashtra Act or
abuses the powers or that his continuation in office is detrimental to the
office of University. After reaching such satisfaction, Chancellor has to
consult the Executive Council and then by order, direct removal of Vice
Chancellor. He submits that these ingredients and application of mind
are lacking in present matter and hence, recourse to Section 17 (6) (a)
& (b) is not possible. Even otherwise under subSection (6)(c), order of
removal cannot be passed unless such ViceChancellor is given a
reasonable opportunity of being heard in respect of the action proposed
to be taken. He submits that there was no such opportunity of hearing
extended to the petitioner.
10. Learned counsel has invited our attention to the Statute
133 to urge that the requirement of applicant being a Citizen of India is
prescribed only for the posts in University service and ViceChancellor is
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not included in it. The definition of “Appointing Authority of University”
in Statute 2(c) is relied upon to contend that “ViceChancellor” is
envisaged as “Appointing Authority” and hence, ViceChancellor cannot
be subjected to said Statute 133. Statute 41 dealing with classification
and method of appointment is also relied upon to show that the
appendix stipulated in clause (1) of Statute 41 does not include Vice
Chancellor at all. The provisions contained in Statute 43, dealing with
reservation of posts in University services, is also relied upon with
similar contention. Statute 73 prescribing “Classification of Academic
Staff Members” is relied upon to urge that it is in relation to any post in
the University services and still it does not deal with ViceChancellor.
He contends that thus, this entire material reveals that Statute 133,
which mandates Citizenship of India, does not extend to the post of
ViceChancellor. Accordingly, after valid and proper advertisement, the
petitioner came to be selected and was appointed on contract. He could
not, therefore, have been discontinued under wrong and erroneous
impression.
11. Shri Kilor, learned counsel has also invited our
attention to the provisions contained in The Citizenship Act, 1955,
particularly Section 7B (2)(a) to urge that impliedly, it shows
availability of employment to Overseas Citizen of India (OCI) like the
petitioner. He further states that in this situation, Section 7(2)(i), of
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this Act is not attracted. He submits that the petitioner was not given
opportunity on the rights made available to him by the Union of India.
12. He points out that under Section 57 of the Maharashtra
Act, contract of employment subsists for a period of five years and if its
period was to be reduced, the hearing, after proper show cause notice,
was must.
13. Shri Dharmadhikari, learned Senior counsel submits
that action against the petitioner is not under Section 17(6) of the
Maharashtra Act, it is not punitive and no stigma has been cast. The
petitioner does not plead any mala fides. As he is a Citizen of United
States of America, as per Section 7A of the Citizenship Act, only rights
expressly conferred are available. He submits that Section 7B of the
Citizenship Act speaks about such rights and subsection (2) thereof
points out restrictions in this connection. Unless there is a positive
direction by Central Government specifically in case of petitioner,
allowing him a right to become ViceChancellor, petitioner cannot seek
any writ. In view of Section 7B (2)(i), such a notification will be illegal
and unconstitutional. He contends that the entire controversy needs to
be viewed in this background.
14. Inviting attention to Section 13 of the Maharashtra Act,
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he points out that there, personnel in University are classified under
three heads. Under clause (a), Executives, Academic Officers and other
Officers are put. Under clause (b), Academic staff members with
academic duties are placed while ministerial staff member is placed in
last category i.e. (c). As per Scheme in Section 14, the Chancellor, the
ProChancellor and the ViceChancellor are the Executives and
Academic Officers of University. The petitioner – ViceChancellor,
therefore, is in “services of University” in the light of Section 13 read
with Section 14 and, therefore, regulated by Statute 133.
15. Section 17 (3) is relied upon to urge that the Vice
Chancellor is a wholetime salaried officer of University. Statute 133
and phrase “University Services” needs to be understood with reference
to Section 13 only. Thus, for petitioner, Citizenship of India is essential.
He points out that even for person of Indian origin who has gone out
and migrated again, a certificate of eligibility is envisaged in proviso to
Statute 133.
16. According to him, when Section 7B of the Citizenship
Act is perused in this backdrop, absence of material mentioned by
authorities giving advice to Hon'ble Chancellor shows that there was no
right conferred on the petitioner to occupy the post of ViceChancellor.
Only notification dated 11/04/2005 has been issued and that
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notification by the Ministry of Home Affairs under Section 7B (1) of the
Citizenship Act prescribes only three rights. Right of parity with Non
resident Indian does not enable the petitioner to claim employment.
Facilities available in educational field envisaged in clause (c) of this
notification does not cover employment.
17. He, therefore, states that though the requirement of
Citizenship of India was not mentioned in the advertisement, that by
itself does not improve situation for the petitioner. That requirement
needs to be satisfied and when the fact that the petitioner does not hold
the status of Citizen of India became clear, necessary action has been
taken. His selection and appointment is / was void ab initio. No
opportunity of hearing was, therefore, necessary. He places reliance
upon the judgment of the Hon'ble Apex Court in the case of State of
Orissa and another Vrs. Mamata Mohanty , reported at (2011) 3 SCC
436 and in the case of Government of Andhra Pradesh and others
Vrs. K. Brahmanandam and others , reported at (2008) 5 SCC 241 .
18. Shri Dharmadhikari, learned Senior Counsel adds that
though present petition has been filed, the petitioner has not placed
before this Court any right conferred upon him in terms of Section 7B
of the Citizenship Act, enabling him to hold the post of ViceChancellor.
He, therefore, submits that in this situation, grant of an opportunity of
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hearing would have been nothing but empty formality. As the petitioner
has not pointed out any prejudice, the petition is liable to be dismissed.
He is relying upon the judgment of the Hon'ble Apex Court in the case
of Ashok Kumar Sonkar Vrs. Union of India and others, reported at
(2007) 4 SCC 54 , in support of his contention.
19. Lastly, he adds that though the petitioner has
mentioned instances at Rahuri and Parbhani Universities in his reply,
details of incumbent are not furnished and hence, the same cannot be
looked into at all. As the law does not permit an OCI to occupy the post
of the ViceChancellor, the petition is liable to be dismissed.
20. In reply, Shri Kilor, learned counsel invites attention to
Section 37 (b), (c) and (g) of the Maharashtra Act, and submits that
Section 37 itself does not support a statute on eligibility conditions of
the ViceChancellor.
21. He submits that advices received by the Chancellor,
provisions relied upon by him and instances at Rahuri and Parbhani,
bring on record disputed questions of facts and law. Hence, an
opportunity of hearing ought to have been provided. Lastly, he adds
that in affidavitinreply filed by respondent Nos.1 and 2, they have not
expressly taken a plea that the impugned order is not issued under
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Section 17 of the Maharashtra Act. He contends that the Chancellor has
got no other source of power. Fairly, he accepted that the plea of power
with “Appointing Authority” to recall such an appointment is appearing
in the reply.
22. After hearing respective counsel, we are satisfied that
there is no dispute about the status of the petitioner as OCI. A perusal
of advertisements in response to which he participated in selection
process reveals that the petitioner was not warned of requirement of
that status. In his BioData, he pointed out his USA citizenship with
status as OCI and other privileges. Thus, he did not suppress anything.
The respondents, therefore, have selected him as their ViceChancellor
with open eyes.
23. The Section 13 of the Maharashtra Act appear in
Chapter IV which deals with the Officers of the Universities. Section 13
classifies entire personnel into three categories. As per Section 14 (iii),
the ViceChancellor is a part of the Executive. Section 17 enables the
Chancellor to appoint the ViceChancellor. Under Section 14 (i), the
Chancellor is also a part of the Executive.
24. Statute 133 is framed in exercise of powers under
Section 38 of the Maharashtra Act. Section 38 prescribes procedure for
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making of Statute. Section 37 is on matters on which Statute can be
made. SubClause (b) therein reads as under :
SubClause (b) : The () other conditions of service of
the ViceChancellor and his powers and duties.
25. Shri Kilor, learned counsel relied upon clause (c) also
along with clause (g) of the Section 37 in Maharashtra Act and hence,
we find it appropriate to reproduce those clauses also.
Clause (c) : The designations, qualifications, method of
recruitment, pay, allowances and other conditions of
service of various categories of employees of the University,
and their powers and duties.
Clause (g) : The designations, qualifications, method of
recruitment, pay, allowances and other conditions of
service of Professors, Associate Professors, Assistant
Professors, Lecturers, Demonstrators and other categories
of employees of affiliated colleges and recognised
institutions, and their powers and duties.
26. Reading of these three clauses in contradistinction,
according to Shri Kilor, learned counsel shows that Statute cannot be
made on subject of classification, method of recruitment, etc. of the
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ViceChancellor. We find it difficult to accept the same as the portion
deleted (by Mah. 12 / 1988) from above clause (b) read “ emoluments
and ”. Thus, before removal of these words “ emoluments and ”, Clause (b)
empowered making of a Statute on the emoluments and other
conditions of service of the ViceChancellor and his powers and duties.
This clause when read with clause (c) and clause (d) (supra), cannot be
construed to mean that the Statute cannot be made prescribing
qualifications, method of recruitment, etc. of the ViceChancellor.
Words “ other conditions of service ” in clause (b) (supra) cannot be
understood to exclude facets stipulated in clause (c) and clause (g).
27. In the Statute “Maharashtra Agricultural Universities
(Krishi Vidyapeeths) Statutes, 1990, the “Appointing Authority”
prescribed is the “ViceChancellor”. This by itself does not mean that a
post of the ViceChancellor is not subjected to said 1990 Statutes.
Statute 133 occurs in its Chapter XV is on Pay, Allowances, Pension,
Leave and General Conditions of Service of Employees of the
University / Affiliated Colleges / Recognized Institutions. Statute 133 is
the first provision in this Chapter which deals with “Disqualifications for
appointment”. It stipulates various disqualification for appointment in
University Service. Thus, as per clause (a) (i), a person who is not
citizen of India, cannot be appointed to any post in University Service.
The emphasis is highlighted by the requirement of possessing a
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“Certificate of Eligibility” for a migrant to India in its proviso. The word
“University Service” takes into its fold all three categories mentioned in
Section 13 and the post of the ViceChancellor also. Chapter V is on
Academic Officers, Heads of Departments, Professors and other
equivalent posts. Statute 41 deals with Qualifications and method of
appointments. Nonmention of post of the ViceChancellor in this
Statute or Chapter by itself is, therefore, not decisive. Statute 43 is
prescribing percentage of Reservation. Again it does not support the
contention of the petitioner that the post of the ViceChancellor is not
dealt with in Statute 133. Statute 73 is on Qualifications of Academic
Staff Members. For the reasons mentioned supra, again it is of no
assistance to the petitioner in the present matter.
28. The provisions of the Citizenship Act, 1955, are of
paramount importance. Section 7A of the Citizenship Act, 1955, is
about Registration of overseas citizen of India cardholder. The
petitioner is one such cardholder. As per Section 7B of the Citizenship
Act, 1955, a overseas citizen of India cardholder is entitled to only such
rights which are not stated in subsection (2), provided the same are
specified by the Central Government by notification in the Official
Gazette. This provision under subsection (1) of Section 7B, therefore,
shows that such rights to be specified by the Central Government,
cannot be those which are excluded under subsection (2) thereof. Sub
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section (2) points out rights to which such cardholder is not entitled. He
is not entitled to rights available to citizen of India under Article 16 of
the Constitution. He is also not entitled to appointment to public
services and posts in connection with affairs of Union or of any State
except for appointment in such services and posts as Central
Government may by special order in that behalf specify. Thus, sub
section (2) while denying certain rights to an OCI, carve out limited
exception thereto, if it is backed by a notification of Central
Government. All rights which are available to Citizen of India cannot be
enjoyed by a person like petitioner. This subsection (2) therefore, does
not imply that rights which are not stipulated in subclause (a) to (i)
thereof can be enjoyed by a cardholder like the petitioner. A joint
reading of Section 7B(1) with subsection (2) shows that cardholder
like the petitioner can enjoy only few such rights which may be
specified by the Central Government by notification in the Official
Gazette. The petitioner has not pointed out any such notification which
authorizes him to apply for and occupy the post of the ViceChancellor
of respondent No.3 – University. The contention of Shri Kilor, learned
counsel that absence of such material mentioned by various advisors to
the Hon'ble Chancellor supports the case of the petitioner is thus
erroneous. On the contrary, it adversely affects the cause of the
petitioner. Section 7B is a provision which disqualifies cardholder like
the petitioner and an express document specifying the right to be
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exercised by him, must be brought on record. The petitioner has failed
to do so.
29. Section 7B begins with nonobstante clause and it
overrides any other law for the time being in force. It, therefore, also
overrides the provision of the Maharashtra Act, which has received
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assent of the Governor of Maharashtra on 22 August, 1983. Hence,
even if contention of Shri Kilor, learned counsel founded on the absence
of stipulation of Indian Citizenship for a holder of post of the Vice
Chancellor in advertisement for recruitment or in Statute 133 is
accepted, still because of Section 7B of the Citizenship Act, the
petitioner cannot aspire for the post of the ViceChancellor of
respondent No.3 – University.
30. Shri Dharmadhikari, learned Senior counsel has rightly
submitted that advice furnished by various departments or by the
learned Advocate General to respondent No.1 – Chancellor, need not be
looked into. We are, therefore, avoiding to appreciate it either way. The
discussion above shows that the office of respondent No.1 Chancellor
has approached the controversy in right perspective. Correctness of
recourse to Section 7B (i) of Citizenship Act to unsit the petitioner is
not demonstrated to be bad.
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31. The petitioner does not point out any stigma and no
arguments in that regard are advanced. The petitioner has also not
placed on record any Gazette Notification or order issued by the Central
Government enabling / authorizing him to occupy the post of the Vice
Chancellor. It is, therefore, apparent that no prejudice has been caused
to him by denying opportunity of hearing. Moreover, the petitioner has
claimed such an opportunity, because of Section 17 (6) of the
Maharashtra Act. Subsection 6(a) or (b) envisage some misconduct or
administrative error on the part of the ViceChancellor. Thus, when for
such an error or mistake, bordering on line of “misconduct”, action is to
be taken by the Chancellor, the procedure prescribed therein needs to
be adhered to. In that event, reasonable opportunity of being heard
should be granted. Here, there are no aspersions on integrity or ability
of the petitioner. Absence of status or eligibility in him is only used to
point out the disqualification. As held supra, his record is unblemished.
The petitioner also does not allege mala fides against anybody. Section
17, therefore, does not have any role to play. The office of respondent
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No.1 has rightly, in impugned order dated 29 July, 2017, not invoked
Section 17 (6) of the Maharashtra Act.
32. In the case of State of Orissa and another Vrs.
Mamata Mohanty (supra) in para 37, the Hon'ble Apex Court has
pointed out that an order which is bad in its inception, does not get
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sanctified at a later stage. The observation in paras 40 and 41 also show
that the absence of essential qualification results in lack of basic
eligibility which cannot be cured later on. The observation of the
Hon'ble Apex Court in the case of Government of Andhra Pradesh and
others Vrs. K. Brahmanandam and others (supra) shows that no writ
can be issued in the matters where appointment is in violation of
mandatory provisions and void. In the case of Ashok Kumar Sonkar
Vrs. Union of India and others (supra), the Hon'ble Apex Court has
reiterated settled law that court of law does not insist on compliance
with useless formality. It has explained that compliance with principle
of audi alteram partem cannot be insisted upon, unless prejudice is
shown. It need not be invoked where grant of hearing would be a futile
exercise.
33. In the present matter, the provisions of Section 7B of
the Citizenship Act, 1955, did not and do not permit the petitioner to
aspire for the post of the ViceChancellor with respondent No.3 –
University. Moreover, even as per Maharashtra Act, the ViceChancellor
needs to be a Citizen of India. Admittedly, the petitioner is not a Citizen
of India. In these facts, grant of hearing to the petitioner cannot result
in any relief to him. The contract entered into with him under Section
57 of the Maharashtra Act is itself void and unsustainable. Though, we
cannot blame the petitioner in this situation, no benefit can also be
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extended to him. Use of word “ termination ” at the end of the impugned
order by the office of the Chancellor only means termination of services
i.e. contract. Therefore, it does not vitiate the action. In earlier para of
impugned order, it has been expressly mentioned that the Chancellor
possesses power to appoint the ViceChancellor and that power includes
power to remove him also. It is also mentioned that the appointment
has become void abinitio. The office of the Chancellor did issue
necessary show cause notice, obtained reply from the petitioner. It also
obtained opinion from the Ministry of Law and Judiciary, Ministry of
External Affairs of Union of India and from the learned Advocate
General for the State of Maharashtra. A perusal of impugned order
reveals that after studying the opinions so received, the decision was
reached and action has been taken. Which part of such legal advice,
should be mentioned in the order and how or to what extent it should
be reproduced is the prerogative of that office. No right of the petitioner
is violated thereby. Office of the Chancellor has adopted a fair
procedure and given necessary opportunity to the petitioner in the
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matter. Even otherwise, his tenure was to expire on 13 August, 2017.
So, he has hardly lost service of two weeks in the process. Petitioner,
knowing fully well his status as an OCI and import of Section 7B of
Citizenship Act, ought to have been more cautious or vigilant in the
matter. However, this observation applies with full vigour to the
Respondent No.3 also. Hence, neither he nor the respondents can be
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blamed for the recruitment and its termination.
34. We therefore, find no case made out for warranting
interference. Writ petition is accordingly dismissed. Rule discharged. No
order as to costs.
JUDGE JUDGE
Choulwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.5114/2017
Raviprakash Govindrao Dani,
Aged : 62 year, Occ : Retired
Scientists, R/o C/o Mr.P.M.Birsiwale,
Happy Home, Mama Road,
Dharampeth, Nagpur – 440 010. ..... PETITIONER
...V E R S U S...
1. The Chancellor,
Dr. Panjabrao Deshmukh Krushi
Vidhyapeeth, Rajbhawan,
Malbar Hills, Mumbai.
2. The State of Maharashtra,
Through its Secretary,
Department of Revenue and
Agriculture, Mantralaya,
Mumbai.
3. Dr. Panjabrao Deshmukh Krushi
Vidhyapeeth, through its Registrar,
Akola. … RESPONDENTS
Shri A. S. Kilor, Advocate for the petitioner.
Shri S. P. Dharmadhikari, Senior Counsel with Mrs. K.S. Joshi, Additional Government
Pleader for respondent Nos.1 and 2.
Shri A. R. Patil, Advocate for the respondent No.3.
CORAM: B.P.DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
DATED : 10/08/2017.
ORAL JUDGMENT : (PER B. P. DHARMADHIKARI, J.)
1. Looking to the nature of controversy, Rule has been
issued and made returnable forthwith by consent of parties.
Accordingly, we have heard Shri Kilor, learned counsel for the
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petitioner, Shri Dharmadhikari, learned Senior counsel with Mrs. Joshi,
learned Additional Government Pleader for respondent Nos. 1 & 2 and
Shri Patil, learned counsel for respondent No.3 – Dr. Panjabrao
Deshmukh Krushi Vidyapeeth, Akola.
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2. The order dated 29 July, 2017, issued by the Governor
of Maharashtra as Chancellor of respondent No.3 – University,
terminating the services of petitioner as ViceChancellor of respondent
No.3 – Agriculture University, has been questioned in the present
matter.
3. It is not in dispute that the petitioner was appointed on
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13 August, 2012 by the Chancellor for a term of 5 years from
14/08/2012 and otherwise his term was to expire on 13/08/2017.
4. Termination is due to the fact that the petitioner is a
Citizen of United States of America and, therefore, not eligible to
occupy the post as ViceChancellor.
5. Shri Kilor, learned counsel submits that in the
advertisement published in the Newspaper in April, 2012, inviting
applications for the post of ViceChancellor, citizenship of India was not
shown as an essential requirement. The advertisement carries reference
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st th
to Government Orders dated 21 July, 2010 and 5 July, 2011. Neither
these orders nor Section 17 of the Maharashtra Agricultural Universities
(Krishi Vidyapeeths) Act, 1983 (hereinafter mentioned as “Maharashtra
Act”) contemplate citizenship of India, as an eligibility condition. He has
invited our attention to the University Grants Commission (Minimum
Qualifications for Appointment of Teachers and Other Academic Staff in
Universities and Colleges and Measures for the Maintenance of
Standards in Higher Education) Regulations, 2010, (hereinafter referred
to as 2010 Regulations) particularly its Clause 7.3.0 dealing with the
ViceChancellor, to urge that there also citizenship of India is not
prescribed as an ingredient.
6. Resume given by the petitioner for consideration at the
time of applying for the post is also relied upon by him to reveal that
citizenship of United States of America with overseas citizen of India
status and life long VISA as also permission to stay / work in India, are
disclosed therein and have not been suppressed. Thus, with open eyes,
the appointment order was issued after candidature of the petitioner
was evaluated by a Committee presided over by a retired Judge of
Hon'ble Supreme Court found him fit and eligible. Hence, reason that
the petitioner is not a citizen of India, cannot stand on facts and in law.
7. Shri Kilor, learned counsel has pointed out that on
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21/12/2015, there was a complaint made to the Chancellor as also to
the ProChancellor by the Citizen Forum and in it, the fact that the
petitioner is not a citizen of India was pointed out. On 22/02/2016,
comments of the petitioner upon it were called for. The petitioner gave
his reply on 09/03/2016 and made clean breast of the matter. He also
pointed out that previously in Rahuri and Parbhani Universities, similar
appointments of persons with same status were made. The Pro
th
Chancellor himself, thereafter, made some complaint on 5 April, 2016.
Another explanation of the petitioner was called for, however, in said
notice, it was expressly stipulated that no reply about citizenship was
needed. The petitioner replied to it on 20/04/2016.
8. Thereafter, there was no further development and
suddenly, the petitioner received the impugned communication. Shri
Kilor, learned counsel points out that the impugned communication
mostly places reliance upon the advice / opinions tendered by the State
Ministry for Law and Judiciary, Advocate General and Ministry of
External Affairs of Government of India. He has taken us through the
same. These documents / opinions are filed on record by respondent
Nos.1 and 2 as a part of their reply. He submits that the authorities
expressing their opinions, expressly pointed out absence of material
and, therefore, the office of the Chancellor ought to have conducted a
proper enquiry without relying upon it. He also submits that the office
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of the Chancellor, while relying upon these opinions, has selected some
part of it while other part has been conveniently ignored.
9. Inviting attention to the provisions of Section 17 of
Maharashtra Act, he argues that under subSection (6)(a), the
Chancellor may remove the ViceChancellor at any time on the charges
of neglect or for failure to carry out responsibilities. Under subSection
(6)(b), the Chancellor has to reach an opinion that ViceChancellor
omits or refuses to carry out provisions of the Maharashtra Act or
abuses the powers or that his continuation in office is detrimental to the
office of University. After reaching such satisfaction, Chancellor has to
consult the Executive Council and then by order, direct removal of Vice
Chancellor. He submits that these ingredients and application of mind
are lacking in present matter and hence, recourse to Section 17 (6) (a)
& (b) is not possible. Even otherwise under subSection (6)(c), order of
removal cannot be passed unless such ViceChancellor is given a
reasonable opportunity of being heard in respect of the action proposed
to be taken. He submits that there was no such opportunity of hearing
extended to the petitioner.
10. Learned counsel has invited our attention to the Statute
133 to urge that the requirement of applicant being a Citizen of India is
prescribed only for the posts in University service and ViceChancellor is
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not included in it. The definition of “Appointing Authority of University”
in Statute 2(c) is relied upon to contend that “ViceChancellor” is
envisaged as “Appointing Authority” and hence, ViceChancellor cannot
be subjected to said Statute 133. Statute 41 dealing with classification
and method of appointment is also relied upon to show that the
appendix stipulated in clause (1) of Statute 41 does not include Vice
Chancellor at all. The provisions contained in Statute 43, dealing with
reservation of posts in University services, is also relied upon with
similar contention. Statute 73 prescribing “Classification of Academic
Staff Members” is relied upon to urge that it is in relation to any post in
the University services and still it does not deal with ViceChancellor.
He contends that thus, this entire material reveals that Statute 133,
which mandates Citizenship of India, does not extend to the post of
ViceChancellor. Accordingly, after valid and proper advertisement, the
petitioner came to be selected and was appointed on contract. He could
not, therefore, have been discontinued under wrong and erroneous
impression.
11. Shri Kilor, learned counsel has also invited our
attention to the provisions contained in The Citizenship Act, 1955,
particularly Section 7B (2)(a) to urge that impliedly, it shows
availability of employment to Overseas Citizen of India (OCI) like the
petitioner. He further states that in this situation, Section 7(2)(i), of
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this Act is not attracted. He submits that the petitioner was not given
opportunity on the rights made available to him by the Union of India.
12. He points out that under Section 57 of the Maharashtra
Act, contract of employment subsists for a period of five years and if its
period was to be reduced, the hearing, after proper show cause notice,
was must.
13. Shri Dharmadhikari, learned Senior counsel submits
that action against the petitioner is not under Section 17(6) of the
Maharashtra Act, it is not punitive and no stigma has been cast. The
petitioner does not plead any mala fides. As he is a Citizen of United
States of America, as per Section 7A of the Citizenship Act, only rights
expressly conferred are available. He submits that Section 7B of the
Citizenship Act speaks about such rights and subsection (2) thereof
points out restrictions in this connection. Unless there is a positive
direction by Central Government specifically in case of petitioner,
allowing him a right to become ViceChancellor, petitioner cannot seek
any writ. In view of Section 7B (2)(i), such a notification will be illegal
and unconstitutional. He contends that the entire controversy needs to
be viewed in this background.
14. Inviting attention to Section 13 of the Maharashtra Act,
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he points out that there, personnel in University are classified under
three heads. Under clause (a), Executives, Academic Officers and other
Officers are put. Under clause (b), Academic staff members with
academic duties are placed while ministerial staff member is placed in
last category i.e. (c). As per Scheme in Section 14, the Chancellor, the
ProChancellor and the ViceChancellor are the Executives and
Academic Officers of University. The petitioner – ViceChancellor,
therefore, is in “services of University” in the light of Section 13 read
with Section 14 and, therefore, regulated by Statute 133.
15. Section 17 (3) is relied upon to urge that the Vice
Chancellor is a wholetime salaried officer of University. Statute 133
and phrase “University Services” needs to be understood with reference
to Section 13 only. Thus, for petitioner, Citizenship of India is essential.
He points out that even for person of Indian origin who has gone out
and migrated again, a certificate of eligibility is envisaged in proviso to
Statute 133.
16. According to him, when Section 7B of the Citizenship
Act is perused in this backdrop, absence of material mentioned by
authorities giving advice to Hon'ble Chancellor shows that there was no
right conferred on the petitioner to occupy the post of ViceChancellor.
Only notification dated 11/04/2005 has been issued and that
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notification by the Ministry of Home Affairs under Section 7B (1) of the
Citizenship Act prescribes only three rights. Right of parity with Non
resident Indian does not enable the petitioner to claim employment.
Facilities available in educational field envisaged in clause (c) of this
notification does not cover employment.
17. He, therefore, states that though the requirement of
Citizenship of India was not mentioned in the advertisement, that by
itself does not improve situation for the petitioner. That requirement
needs to be satisfied and when the fact that the petitioner does not hold
the status of Citizen of India became clear, necessary action has been
taken. His selection and appointment is / was void ab initio. No
opportunity of hearing was, therefore, necessary. He places reliance
upon the judgment of the Hon'ble Apex Court in the case of State of
Orissa and another Vrs. Mamata Mohanty , reported at (2011) 3 SCC
436 and in the case of Government of Andhra Pradesh and others
Vrs. K. Brahmanandam and others , reported at (2008) 5 SCC 241 .
18. Shri Dharmadhikari, learned Senior Counsel adds that
though present petition has been filed, the petitioner has not placed
before this Court any right conferred upon him in terms of Section 7B
of the Citizenship Act, enabling him to hold the post of ViceChancellor.
He, therefore, submits that in this situation, grant of an opportunity of
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hearing would have been nothing but empty formality. As the petitioner
has not pointed out any prejudice, the petition is liable to be dismissed.
He is relying upon the judgment of the Hon'ble Apex Court in the case
of Ashok Kumar Sonkar Vrs. Union of India and others, reported at
(2007) 4 SCC 54 , in support of his contention.
19. Lastly, he adds that though the petitioner has
mentioned instances at Rahuri and Parbhani Universities in his reply,
details of incumbent are not furnished and hence, the same cannot be
looked into at all. As the law does not permit an OCI to occupy the post
of the ViceChancellor, the petition is liable to be dismissed.
20. In reply, Shri Kilor, learned counsel invites attention to
Section 37 (b), (c) and (g) of the Maharashtra Act, and submits that
Section 37 itself does not support a statute on eligibility conditions of
the ViceChancellor.
21. He submits that advices received by the Chancellor,
provisions relied upon by him and instances at Rahuri and Parbhani,
bring on record disputed questions of facts and law. Hence, an
opportunity of hearing ought to have been provided. Lastly, he adds
that in affidavitinreply filed by respondent Nos.1 and 2, they have not
expressly taken a plea that the impugned order is not issued under
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Section 17 of the Maharashtra Act. He contends that the Chancellor has
got no other source of power. Fairly, he accepted that the plea of power
with “Appointing Authority” to recall such an appointment is appearing
in the reply.
22. After hearing respective counsel, we are satisfied that
there is no dispute about the status of the petitioner as OCI. A perusal
of advertisements in response to which he participated in selection
process reveals that the petitioner was not warned of requirement of
that status. In his BioData, he pointed out his USA citizenship with
status as OCI and other privileges. Thus, he did not suppress anything.
The respondents, therefore, have selected him as their ViceChancellor
with open eyes.
23. The Section 13 of the Maharashtra Act appear in
Chapter IV which deals with the Officers of the Universities. Section 13
classifies entire personnel into three categories. As per Section 14 (iii),
the ViceChancellor is a part of the Executive. Section 17 enables the
Chancellor to appoint the ViceChancellor. Under Section 14 (i), the
Chancellor is also a part of the Executive.
24. Statute 133 is framed in exercise of powers under
Section 38 of the Maharashtra Act. Section 38 prescribes procedure for
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making of Statute. Section 37 is on matters on which Statute can be
made. SubClause (b) therein reads as under :
SubClause (b) : The () other conditions of service of
the ViceChancellor and his powers and duties.
25. Shri Kilor, learned counsel relied upon clause (c) also
along with clause (g) of the Section 37 in Maharashtra Act and hence,
we find it appropriate to reproduce those clauses also.
Clause (c) : The designations, qualifications, method of
recruitment, pay, allowances and other conditions of
service of various categories of employees of the University,
and their powers and duties.
Clause (g) : The designations, qualifications, method of
recruitment, pay, allowances and other conditions of
service of Professors, Associate Professors, Assistant
Professors, Lecturers, Demonstrators and other categories
of employees of affiliated colleges and recognised
institutions, and their powers and duties.
26. Reading of these three clauses in contradistinction,
according to Shri Kilor, learned counsel shows that Statute cannot be
made on subject of classification, method of recruitment, etc. of the
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ViceChancellor. We find it difficult to accept the same as the portion
deleted (by Mah. 12 / 1988) from above clause (b) read “ emoluments
and ”. Thus, before removal of these words “ emoluments and ”, Clause (b)
empowered making of a Statute on the emoluments and other
conditions of service of the ViceChancellor and his powers and duties.
This clause when read with clause (c) and clause (d) (supra), cannot be
construed to mean that the Statute cannot be made prescribing
qualifications, method of recruitment, etc. of the ViceChancellor.
Words “ other conditions of service ” in clause (b) (supra) cannot be
understood to exclude facets stipulated in clause (c) and clause (g).
27. In the Statute “Maharashtra Agricultural Universities
(Krishi Vidyapeeths) Statutes, 1990, the “Appointing Authority”
prescribed is the “ViceChancellor”. This by itself does not mean that a
post of the ViceChancellor is not subjected to said 1990 Statutes.
Statute 133 occurs in its Chapter XV is on Pay, Allowances, Pension,
Leave and General Conditions of Service of Employees of the
University / Affiliated Colleges / Recognized Institutions. Statute 133 is
the first provision in this Chapter which deals with “Disqualifications for
appointment”. It stipulates various disqualification for appointment in
University Service. Thus, as per clause (a) (i), a person who is not
citizen of India, cannot be appointed to any post in University Service.
The emphasis is highlighted by the requirement of possessing a
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“Certificate of Eligibility” for a migrant to India in its proviso. The word
“University Service” takes into its fold all three categories mentioned in
Section 13 and the post of the ViceChancellor also. Chapter V is on
Academic Officers, Heads of Departments, Professors and other
equivalent posts. Statute 41 deals with Qualifications and method of
appointments. Nonmention of post of the ViceChancellor in this
Statute or Chapter by itself is, therefore, not decisive. Statute 43 is
prescribing percentage of Reservation. Again it does not support the
contention of the petitioner that the post of the ViceChancellor is not
dealt with in Statute 133. Statute 73 is on Qualifications of Academic
Staff Members. For the reasons mentioned supra, again it is of no
assistance to the petitioner in the present matter.
28. The provisions of the Citizenship Act, 1955, are of
paramount importance. Section 7A of the Citizenship Act, 1955, is
about Registration of overseas citizen of India cardholder. The
petitioner is one such cardholder. As per Section 7B of the Citizenship
Act, 1955, a overseas citizen of India cardholder is entitled to only such
rights which are not stated in subsection (2), provided the same are
specified by the Central Government by notification in the Official
Gazette. This provision under subsection (1) of Section 7B, therefore,
shows that such rights to be specified by the Central Government,
cannot be those which are excluded under subsection (2) thereof. Sub
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section (2) points out rights to which such cardholder is not entitled. He
is not entitled to rights available to citizen of India under Article 16 of
the Constitution. He is also not entitled to appointment to public
services and posts in connection with affairs of Union or of any State
except for appointment in such services and posts as Central
Government may by special order in that behalf specify. Thus, sub
section (2) while denying certain rights to an OCI, carve out limited
exception thereto, if it is backed by a notification of Central
Government. All rights which are available to Citizen of India cannot be
enjoyed by a person like petitioner. This subsection (2) therefore, does
not imply that rights which are not stipulated in subclause (a) to (i)
thereof can be enjoyed by a cardholder like the petitioner. A joint
reading of Section 7B(1) with subsection (2) shows that cardholder
like the petitioner can enjoy only few such rights which may be
specified by the Central Government by notification in the Official
Gazette. The petitioner has not pointed out any such notification which
authorizes him to apply for and occupy the post of the ViceChancellor
of respondent No.3 – University. The contention of Shri Kilor, learned
counsel that absence of such material mentioned by various advisors to
the Hon'ble Chancellor supports the case of the petitioner is thus
erroneous. On the contrary, it adversely affects the cause of the
petitioner. Section 7B is a provision which disqualifies cardholder like
the petitioner and an express document specifying the right to be
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exercised by him, must be brought on record. The petitioner has failed
to do so.
29. Section 7B begins with nonobstante clause and it
overrides any other law for the time being in force. It, therefore, also
overrides the provision of the Maharashtra Act, which has received
nd
assent of the Governor of Maharashtra on 22 August, 1983. Hence,
even if contention of Shri Kilor, learned counsel founded on the absence
of stipulation of Indian Citizenship for a holder of post of the Vice
Chancellor in advertisement for recruitment or in Statute 133 is
accepted, still because of Section 7B of the Citizenship Act, the
petitioner cannot aspire for the post of the ViceChancellor of
respondent No.3 – University.
30. Shri Dharmadhikari, learned Senior counsel has rightly
submitted that advice furnished by various departments or by the
learned Advocate General to respondent No.1 – Chancellor, need not be
looked into. We are, therefore, avoiding to appreciate it either way. The
discussion above shows that the office of respondent No.1 Chancellor
has approached the controversy in right perspective. Correctness of
recourse to Section 7B (i) of Citizenship Act to unsit the petitioner is
not demonstrated to be bad.
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31. The petitioner does not point out any stigma and no
arguments in that regard are advanced. The petitioner has also not
placed on record any Gazette Notification or order issued by the Central
Government enabling / authorizing him to occupy the post of the Vice
Chancellor. It is, therefore, apparent that no prejudice has been caused
to him by denying opportunity of hearing. Moreover, the petitioner has
claimed such an opportunity, because of Section 17 (6) of the
Maharashtra Act. Subsection 6(a) or (b) envisage some misconduct or
administrative error on the part of the ViceChancellor. Thus, when for
such an error or mistake, bordering on line of “misconduct”, action is to
be taken by the Chancellor, the procedure prescribed therein needs to
be adhered to. In that event, reasonable opportunity of being heard
should be granted. Here, there are no aspersions on integrity or ability
of the petitioner. Absence of status or eligibility in him is only used to
point out the disqualification. As held supra, his record is unblemished.
The petitioner also does not allege mala fides against anybody. Section
17, therefore, does not have any role to play. The office of respondent
th
No.1 has rightly, in impugned order dated 29 July, 2017, not invoked
Section 17 (6) of the Maharashtra Act.
32. In the case of State of Orissa and another Vrs.
Mamata Mohanty (supra) in para 37, the Hon'ble Apex Court has
pointed out that an order which is bad in its inception, does not get
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sanctified at a later stage. The observation in paras 40 and 41 also show
that the absence of essential qualification results in lack of basic
eligibility which cannot be cured later on. The observation of the
Hon'ble Apex Court in the case of Government of Andhra Pradesh and
others Vrs. K. Brahmanandam and others (supra) shows that no writ
can be issued in the matters where appointment is in violation of
mandatory provisions and void. In the case of Ashok Kumar Sonkar
Vrs. Union of India and others (supra), the Hon'ble Apex Court has
reiterated settled law that court of law does not insist on compliance
with useless formality. It has explained that compliance with principle
of audi alteram partem cannot be insisted upon, unless prejudice is
shown. It need not be invoked where grant of hearing would be a futile
exercise.
33. In the present matter, the provisions of Section 7B of
the Citizenship Act, 1955, did not and do not permit the petitioner to
aspire for the post of the ViceChancellor with respondent No.3 –
University. Moreover, even as per Maharashtra Act, the ViceChancellor
needs to be a Citizen of India. Admittedly, the petitioner is not a Citizen
of India. In these facts, grant of hearing to the petitioner cannot result
in any relief to him. The contract entered into with him under Section
57 of the Maharashtra Act is itself void and unsustainable. Though, we
cannot blame the petitioner in this situation, no benefit can also be
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extended to him. Use of word “ termination ” at the end of the impugned
order by the office of the Chancellor only means termination of services
i.e. contract. Therefore, it does not vitiate the action. In earlier para of
impugned order, it has been expressly mentioned that the Chancellor
possesses power to appoint the ViceChancellor and that power includes
power to remove him also. It is also mentioned that the appointment
has become void abinitio. The office of the Chancellor did issue
necessary show cause notice, obtained reply from the petitioner. It also
obtained opinion from the Ministry of Law and Judiciary, Ministry of
External Affairs of Union of India and from the learned Advocate
General for the State of Maharashtra. A perusal of impugned order
reveals that after studying the opinions so received, the decision was
reached and action has been taken. Which part of such legal advice,
should be mentioned in the order and how or to what extent it should
be reproduced is the prerogative of that office. No right of the petitioner
is violated thereby. Office of the Chancellor has adopted a fair
procedure and given necessary opportunity to the petitioner in the
th
matter. Even otherwise, his tenure was to expire on 13 August, 2017.
So, he has hardly lost service of two weeks in the process. Petitioner,
knowing fully well his status as an OCI and import of Section 7B of
Citizenship Act, ought to have been more cautious or vigilant in the
matter. However, this observation applies with full vigour to the
Respondent No.3 also. Hence, neither he nor the respondents can be
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blamed for the recruitment and its termination.
34. We therefore, find no case made out for warranting
interference. Writ petition is accordingly dismissed. Rule discharged. No
order as to costs.
JUDGE JUDGE
Choulwar
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