Heard.
2. Rule. Rule made returnable forthwith. With the consent of the parties, the petition is taken up for final hearing.
3. The petitioner filed a petition before the Hon'ble Chancellor, purportedly under section 76(7) of the Maharashtra Universities Act, 1994, thereby challenging the appointment of the present Respondent No. 4 to the post of Associate Professor for English subject. The petitioner had also applied for the said post, pursuant to the advertisement. The Respondent No. 1 disposed of the said petition vide order dated 26-8-2012, by holding that the Respondent No. 1 does not find any justification to interfere with the decision taken by the University authorities in the matter of selection and appointment of Respondent No. 4 to the post of Associate Professor in English with the Swami Ramanand Teerth Marathwada University. The petitioner has assailed the said order in the present Writ Petition.
4. Mr. S.M Kulkarni, learned counsel for the petitioner during course of his lucid arguments canvassed following propositions:
(a) The order passed by the Respondent No. 1 is against the principles of natural justice. No hearing has been given to the petitioner nor the petitioner was given the copies of the report/clarification and the documents which were allegedly received by the Respondent No. 1 from the Vice Chancellor of the University. Such an order is in flagrant violation of the principles of natural justice. The same cannot be sustained and deserves to be set aside.
(b) The learned counsel relies on the following judgments: (i) (1978) 1 SCC 248, Mrs. Maneka Gandhi v. Union of India, (ii) 1985 Mh. L.J 887, Vidarbha Nagarpalika Parishad v. State of Maharashtra, (iii) 2002 (3) Mh. L.. 750, Anil Amrut Atre v. District and Sessions Judge, Aurangabg, (iv) (2002) 4 SCC 447, Union of India and others Aradhana Trading Co.
(c) The order impugned is quasi-judicial order and not an administrative,:: order as is writ large from the nature of proceedings itself. The Respondent No. 1 was exercising the quasi-judicial powers and while dismissing the petition filed by the petitioner, no reasons are recorded. The order without recording the reasons cannot sustained and deserves to be set aside. The learned counsel to buttress his submission relies on the following judgments: (i) (2009) 12 SCC 609, Uttar Pradesh State Road Transport Corporation v. Jagdish Prasad Gupta, (ii) (2009) 4 SCC 422, State of Himachal Pradesh v. Sada Ram, (iii) 2011 (1) Mh. L.J (S.C) 683 : (2010) 9 SCC 486, Maya Devi (Dead) through L.Rs v. Raj Kumari Batra (dead) through L.Rs, (iv) (2011) 8 SCC 670, State of Uttaranchal v. Sunil Kumar Vaish, (v) AIR 1963 SC 677, Jaswant Sugar Mills Ltd. Meerut v. Lakshmi Chand, (vi) (2013) 1 SCC 745, Namit Sharma v. Union Of India.
(d) Where the statute is silent about observance of principles of natural justice then in such a case the principles of natural justice have to be complied with unless expressly excluded.
5. Mr. P.M Shah, learned Senior counsel for Respondent No. 1 eruditely has put forth following propositions:
(a) The order impugned is an administrative order/executive order and does not have any trappings of quasi-judicial order. The nature and character of proceedings before Respondent No. 1 under section 76(7) are administrative and not quasi-judicial. The following aspects would show that the proceedings are not quasi-judicial.
(i) No formal pleadings are contemplated and it is not necessary that the petition is to be on affidavit.
(ii) The Chancellor is not empowered to administer an oath or to compel attendance of witnesses during the course of inquiry.
(iii) The scope of inquiry is not restricted in making an inquiry to the evidence which the parties may bring before him but he may examine the relevant record of the University.
(iv) The Chancellor is not required to sit in public.
(v) The Chancellor is not invested with the power similar to those of the Civil Court as under the Civil Procedure Code.
(vi) The Chancellor is not working as a Tribunal which substitutes the adjudicatory fora as an alternative institution mechanism for judicial review.
(vii) The Chancellor has no power to issue any direction in the nature of mandamus directing the complainant to be given an appointment. A direction could only be to terminate the appointment, if so required. Even copy of the order passed by the Chancellor need not be served on the complainant.
(viii) The wordings used in the section are “Such enquiries” i.e the Respondent No. 1 has an authority to evolve his own procedure, method and manner of conducting the inquiry. There are no statutory Rules setting out the procedure of conducting inquiries. The personal hearing is not mandated. Obtaining such explanation would mean the representation.
(ix) The Chancellor does not pass an order under the said section but issues directions to the Vice Chancellor and not to the one whose appointments are likely to be effected.
(x) There is no lis between the complainant and the teacher against whom the complaint is made. The petitioner cannot claim the status of an adversarial litigant. There is no legal right or entitlement but a benefit conferred on the complainant by the rule of law.
(xi) The order of the Chancellor may not result in any injury to the legal right of the complainant. The complainant cannot be heard as a party in a lis. In the event the order of termination is issued, the person aggrieved has a remedy of filing an appeal before the University and College Tribunal under section 59 of the Maharashtra Universities Act. In such an appeal, the petitioner could not be a necessary party.
6. The learned Senior counsel relied on following judgments to buttress his submission that proceedings were administrative.
(i) AIR 1963 SC 677, Jaswant Sugar Mills v. Lakshmichand,
(ii) (2012) 10 SCC 353, State of Gujarat v. Gujarat Revenue Tribunal Bar Association, (iii) (2013) 1 SCC 745, Namit Sharma v. Union Of India.
(b) The concept and requirement of natural justice is not a judicial cure in all matters. The learned counsel relies on the following judgments:
(i) (2010) 13 SCC 216, Municipal Committee Hoshiyarpur v. Punjab State Electricity Board, (ii) 1989 (1) CLR 374, Prakash Kutik Chaudhari v. Collector of Dhule, (iii) 2004 (2) Mh. L.J (F.B) 874, Sanjay Govind v. Collector of Dhule, (iv) 2007 (2) Mh. L.J 754, Pushpa Jivatram Mihani v. State of Maharashtra, (v) 2005 (2) Mh. L.J (S.C) 38 — (2004) 8 SCC 653, J.A Naiksatam v. Prothonotary and Senior Master, High Court of Bombay
7. The petitioner has no locus standi to challenge the order of the Respondent No. 1. He cannot be said to be a person aggrieved. The learned counsel relies on the following judgments:
(i) (2012) 4 SCC 407, Ravi Yashwant Bhoir v. District Collector, Raigad, (ii) (1976) 1 SCC 671, Jasbhai Motibhai Desai v. Roshan Kumar.
8. The petitioner cannot be said to be prejudiced by the order passed. In view of that proceedings before Respondent No. 1 cannot be vitiated even in absence of non-observance of principles of natural justice. The learned Senior counsel relies on the judgment in a case of Haryana Financial Corporation v. Kailash Chandra Ahuja, reported in (2008) 9 SCC 31.
9. The legislative scheme and the anatomy of the Act is to be considered in its entirety, it would show that the Chancellor has an administrative control. The power of the Chancellor is that of a superintendence as per section 9 of the Universities Act. The learned Senior counsel alternatively submits that even if it is assumed without admitting that principles of natural justice are to be observed then a written representation would be sufficient and a personal hearing would not be necessary. The learned Senior counsel relies on the following judgments:
(i) AIR 1966 SC 671, Madhya Pradesh Industries v. Union of India,
(ii) 2005 (2) Mh. LJ. (S.C) 38 : (2004) 8 SCC 653, J.A Naiksatam v. Prothonotary and Senior Master, High Court of Bombay,
(iii) 1989 Supp (2) SCC 642, Carborundum Universal Ltd. v. Central Board of Direct Taxes.
10. The Respondent No. 1 has passed an order of approval, so no reasons in detail are required to be given.
11. Mr. Malte, learned counsel for the Respondent No. 3 and Mr. Dasalkar, learned counsel for Respondent No. 4 also subscribed to the arguments advanced by Mr. P.M Shah, the learned Senior counsel. Mr. Malte, learned counsel also submits that the total record was placed before the Respondent No. 1 by the Respondent No. 3 and after having been satisfied about procedure followed and eligibility of the Respondent No. 4, the appointment of Respondent No. 4 was held to be legal and proper by the Respondent No. 1.
12. With the assistance of the learned counsel, I have gone through the relevant provision, the case laws.
13. Before adverting to the submissions canvassed by the learned counsel for respective parties, it would be appropriate to refer to the relevant provisions of section 76(7) and (8) of the Maharashtra Universities Act.
“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 explanation, including explanation 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 comply 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) Any order made by the Chancellor, under the last proceeding subsection, shall be final and a copy of the order shall be served on the teacher concerned by the Vice Chancellor within three days from its receipt.”
14. Chapter III of the Maharashtra Universities Act, 1994 deals with the Officers of the University, their powers and functions. The Chancellor is the Officer of the University. As per section 9 of the said Act, the Governor of Maharashtra shall be the Chancellor by virtue of his office and he is the head of the University.
15. Section 76 of the Act lays down the procedure for appointing a University teacher. After going through the selection process, the Selection Committee selected Respondent No. 4. Pursuant thereto, the Respondent No. 4 is appointed as an Associate Professor vide order dated 13-3-2012. The same is assailed by the petitioner before the Chancellor, invoking section 76(7) of the said Act. The Chancellor disposed of the petition vide order dated 21-8-2012. The said order communicated to the petitioner reads as under:
“Madam,
With reference to your petition dated 11-4-2011 and subsequent letter 12-4-2012 received by the Chancellor, on the subject mentioned above, I am to inform you that the matter was referred to the Vice Chancellor, Swami Ramanand Teerth Marathwada University, Nanded for a factual report in the matter. In this context, I am directed to inform you that after going through the issues raised by you in your aforesaid petitions and the factual report/clarification as also the documents received from the Vice Chancellor, Swami Ramanand Teerth Marathwada University thereon, the Chancellor does not find any justification to interfere with the decision taken by the University authorities in the matter of selection and appointment of Dr. B.S Jadhav to the post of Associate Professor in English in the Swami Ramanand Teerth Marathwada University. Your petition on the subject is, therefore, disposed off accordingly.”
16. The moot issue involved in the present petition can be culled out as under:
(a) Whether the principles of natural justice are required to be adhered to by the Respondent No. 1 while considering the petition under section 76(7) of the said Act.
(b) Whether reasons are required to be recorded by the Respondent No. 1 while disposing of the petition filed under section 76(7) of the Maharashtra Universities Act. The learned counsel for respective parties elaborately canvassed their submissions on the nature of the proceedings before the Chancellor under section 76(7) of the Act i.e administrative or quasi-judicial. I need not dilate much on the said aspect. There is a fine distinction and thin line of demarcation between an administrative and quasi-judicial function. In fact the distinction between administrative and a quasi-judicial function is becoming hazier day by day and has almost obliterated.
17. In a case of Namit Sharma v. Union Of India, reported in (2013) 1 SCC 745, the Apex Court after taking into consideration catena of the earlier judgments held as under:
‘The legal principles which emerge from the various judgments laying down when an act of a statutory authority would be a quasi-judicial act are that where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject, and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasijudicial.”
18. The real test which distinguishes a quasi-judicial act from an administrative act is the duty to act judicially. Duty to act judicially would arise from the very nature of the function intended to be performed. It need not be super added and it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power.
19. Bare reading of section 76(7) it is manifest that the Chancellor has to act judicially. The Chancellor has to arrive at a conclusion that the appointment of the teacher made is in “accordance with the law”, at that time in force. If the Chancellor comes to the conclusion that the appointment of the teacher was not in “accordance with law”, at that time in force, the Chancellor has to direct the Vice Chancellor to terminate the appointment of such teacher and the Vice Chancellor is not left with any discretion but has to forthwith comply the said direction of the Chancellor and has to take steps for fresh selection. Section 76(8) further mandates that the order made by the Chancellor under section 76(7) shall be final. The provisions of section 76(7) of the Act has been invoked by the petitioner by filing a petition before the Chancellor.
20. The order passed under section 76(7) by the Vice Chancellor prejudicially affects a party. If the Chancellor is satisfied that the appointment of the teacher was not in accordance with the law, it can direct the Vice Chancellor to terminate the appointment of such teacher. In such an event fresh selection process has to be undertaken and in said selection process petitioner and Respondent No. 4 can participate. Naturally, such an order would be prejudicially affecting a party. The decision of the Chancellor can prejudicially affect the party.
21. Much emphasis was laid by the learned Senior counsel for Respondent No. 1 while contending that the proceedings are administrative on the fact that the Chancellor while exercising powers under section 76(7) “directs” the Vice Chancellor and does not pass any “order” or a decision.
22. The said distinction sought to be drawn is illusory. An order is more general term which would embrace within its fold the words direction or direct. To direct may mean an order issued to a particular individual or a precept which is to be followed. It may be a specific or a general order. Direction is in the nature of command. An “Order” as per Black Law Dictionary is defined as a mandate, precept, a command or direction authoritatively given. As such it is no gainsay that the phraseology used in the provision is direction and not “Order”. The same would not make any difference. Moreover, sub-section (8) of section 76 further clarifies that direction given by Chancellor is in the nature of order. It states that an “Order” made by the Chancellor under the past preceding subsection shall be final.
23. In light of the same, I have no hesitation to hold that the term “direct” as appearing in section 76(7) is in the nature of “order”.
24. The aim of both a quasi-judicial function as well as administrative function is to arrive at a just decision. The principles of natural justice hold good irrespective of whether the power conferred on a statutory body, tribunal or an authority is administrative or quasi-judicial. The idea of natural justice is fair-play in action. It has to apply to both quasi-judicial and administrative function and from that point of view the distinction between the two loses its significance.
25. In the present case, the petitioner is not given any opportunity of hearing nor any explanation has been called from the petitioner after the Chancellor received the report and the documents from the Respondent No. 3.
26. The Chancellor in his order has observed that after going through the issues raised by the present petitioner in her petition and the factual report/clarification as also the documents received from the Vice Chancellor, the Chancellor does not find any justification to interfere with the decision taken by the University authorities in the matter of selection and appointment of Dr. D.S Jadhav, to the post of Associate Professor in English in the Swami Ramanand Teerth Marathwada University. This would show that the Chancellor formed his opinion on the basis of the petition filed and the report/clarification and the documents received from the Vice Chancellor. Section 76(7) requires an inquiry and obtaining explanations. The petition was filed by the petitioner-an aggrieved person raising various issues. The Chancellor formed his opinion after receiving the report and the documents from the Vice Chancellor. The petitioner was never given the copy of the report and the documents which were relied on while passing the impugned order by the Chancellor. The petitioner ought to have been given an opportunity to explain or put forth his case to the report and the documents submitted by the Vice Chancellor, more particularly, when the Chancellor was deciding against the petitioner. That would have suggested fair play in action. It was duty of the Chancellor to act fairly, more particularly, when the finality is attached to the order of the Chancellor by virtue of sub-section (8) of section 76 of the Act.
27. In view of the above premise, I hold that while entertaining and deciding the proceedings under sub-section (7) of section 76, the Chancellor is required to adhere to the principles of natural justice.
28. After having held that the principles of natural justice are required to be adhered to, the next question would be the manner and extent, the principles of natural justice are required to be observed. Section does not speak about affording opportunity of personal hearing. The provision speaks about calling for an explanation from the parties. It is no doubt a principle of natural justice that an authority cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. The opportunity to meet out the averments, comments and the report submitted by the Vice Chancellor can be by written representation also. Whether the said opportunity should be by a written representation or by personal hearing depends upon the facts of each case as has been held by the Apex Court in a case of Madhya Pradesh Industries v. Union of India, reported in AIR 1966 SC 671 and in a case of, J.A Naiksatam v. Prothonotary and Senior Master, High Court of Bombay, reported in 2005 (2) Mh. L.J (S.C) 38 : (2004) 8 SCC 653.
29. In the present case also the provision lays down of obtaining such ‘explanations’. The principles of natural justice would be satisfied if after the report and clarification is received by the Chancellor, opportunity is given to the petitioner to put forth his case by written explanation to the said report and the clarifications received by the Chancellor. To that extent the principles of natural justice are required to be adhered to. Personal hearing to the petitioner would not be necessary nor is contemplated under the said provision. However, in the present case, the opportunity to give explanation to the report/clarification and the documents is not extended to the petitioner. On this count, the order of the Chancellor impugned cannot be sustained.
30. There is another facet to the case. The order does not spell out any reasons or the basis on which the Chancellor arrived at the satisfaction regarding legality of the appointment of Respondent No. 4.
31. Proper reasoning is an imperative necessity. The statement of reasons not only makes the decision easier for the parties to understand and many a time such decision would be accepted with respect. The requirement of providing reasons obliges the authority to satisfy the points that justify the decision and make it lawful. Every order must contain reasons in support of it. Reasons are link between materials on which certain conclusions are based and the actual conclusion. They disclose how the mind is applied to the subject-matter for a decision. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. The Courts insist upon disclosure of reasons in support of the order on three (3) grounds:
(i) The party aggrieved has an opportunity to demonstrate before the Court that the reasons which persuaded the authority to reject his case were erroneous.
(ii) The obligation to record reasons operates as deterrent against the possible arbitrary action.
(iii) It gives satisfaction to the party against whom the order is made.
32. The rule requiring recording of reasons must be observed in letter and spirit. Mere pretence of compliance by vague and general words is not enough. Though reasons need not be elaborate and extensive, all the same, they must be clear, explicit and intelligible. Reasons are the life line of any order. The order should reflect the application of mind of the authority while passing the said order and it is the reasons which would depict the same.
33. The impugned order is sans any reasons. If natural justice is not followed and while dismissing the petition reasons are not given then the right given to an aggrieved persons to approach the Chancellor under section 76(7) would be rendered illusory.
34. As the order is passed without adhering to principles of natural justice and is bereft of any reason the same cannot be sustained and deserves to be set aside.
35. In the result, the Writ Petition is allowed. The impugned order is quashed and set aside and the matter is remitted before the Respondent No. 1 for decision afresh in light of the observations made hereinabove.
36. Rule accordingly made absolute in above terms. However, there shall be no order as to costs.
Petition allowed.
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