C.W.P No. 6323 of 2003 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 6323 of 2003 Date of decision : November 04, 2008 Dr.R.K.Punia ...... Petitioner through Mr.D.S.Patwalia, Advocate v. Ch. Charan Singh Haryana Agriculture University Hisar & others ...... Respondents through Mr.R.K.Malik, Sr.Advocate with Mr.Vishal, Advocate for respondents No.1 to 3. Mr.J.V.Yadav, Advocate for respondent No.4. CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J The petitioner has challenged the order dated 24.4.2003 (Annexure P-9), whereby he has been relieved as Director Human Resource Management of the respondent-University, as his appointment has not been confirmed by the Board of Management of the University. The petitioner is a Professor in the respondent-University since the year 1996. Vide advertisement No.3 of 2001, the post of Director Human Resource Management was notified for appointment. The appointment to the said post is regulated by the following statute :- “3(i) The following procedure shall be adopted for the C.W.P No. 6323 of 2003 ::2:: appointment of Deans of Colleges, Dean, Post-Graduate Studies; Director of Research, Director of Extension Educator; Director of Publications; Director of Planning, Monitoring and Evaluation and Director of Students' Welfare. (a) The Vice Chancellor may have the post advertised with such qualifications as may be prescribed by the Board of Management and/or invite suggestions as may be prescribed by the Board of Management and/or invite suggestions and recommendations from such persons/institutions or agencies as he deems proper. (b) After advertising the post and receiving the applications or after having obtained the suggestions or recommendations from appropriate persons, institutions and agencies, the Vice Chancellor may either submit a single recommendation for the approval of the Board of Management or appoint a selection committee to make recommendations. (c) The Selection Committee for these posts will be constituted as under :- (i) Vice Chancellor (ii) Director General, ICAR or his nominee not below the rank by Dy. Director General ICAR. (iii) One outstanding scientist of National/International repute to be nominated by the Vice Chancellor; The Vice Chancellor shall appoint the Chairman of the C.W.P No. 6323 of 2003 ::3:: Selection Committee or act as Chairman himself; (d) Where the Vice-Chancellor finds that it is not possible to appoint a Selection Committee, he may constitute an adhoc selection committee. (e) The Chairman of the Committee shall scrutinize all the applications, suggestions and recommendations and prepare a list of candidates who shall be either called for interview or considered in absentia. He may also include in such a list names of any person/persons who have not applied or have not been recommended by persons, institutions and agencies to whom the matter had been referred. (f) After interview of candidates or considering them in absentia, as the case may be, the Selection Committee shall recommend to the Vice Chancellor not more than one person for one post. After receiving the recommendations of the Committee, the Vice Chancellor shall place it before the Board of Management for approval. The Board shall either confirm the recommendations or in case it refuses to confirm, the Vice Chancellor shall, in due course, present another recommendation. (g) The recommendations of the Selection Committee shall be valid for a period of six months from the date these are made. This period may be extended by another six months by the Vice Chancellor.” C.W.P No. 6323 of 2003 ::4:: Twelve persons including the petitioner applied for the said post, out of them eight appeared for interview. The Selection Committee recommended the name of the petitioner. Consequently, he was appointed by the Vice Chancellor of the respondent-University by order dated 29.6.2002. Subsequently, the matter was placed before the Board of Management for necessary statutory approval in its 199th meeting held on 30.7.2002. A representation was also annexed with the said agenda item mentioning about some alleged financial bungling by the petitioner. It was also brought to the notice of the Board that a fact finding inquiry had been conducted at that time which had found the complaint to be false. The Board in order to satisfy itself directed a fresh fact finding inquiry to be conducted by the Financial Commissioner-cum-Principal Secretary to Government Haryana, Agriculture Department. The report of this fact finding inquiry contained the following conclusion :- “ In view of the above narrated facts, it is evident that no transparent system of purchase was adopted. A purchase committee is reported to have been constituted, but the while thing was mismanaged. No supply order was issued in writing to either the Hisar firm or Delhi firm. The payments were made in cash whereas it would have been appropriated to make the payments through cheque. Xx xx xx Therefore, an amount of Rs.3098/- +900/- appears to have been misappropriated or paid extra which is a net loss to the university. When the bags were available for Rs.7020/- from Delhi firm, why the C.W.P No. 6323 of 2003 ::5:: same were purchased for Rs.10118/- from the local firm. There is no satisfactory answer to it from the witnesses. However, there is no direct and tangible evidence on record to prove that this amount has been misappropriated by Dr.R.K.Punia. Nevertheless, he cannot be exonerated and absolved of the responsibility of this bungling, as being Head of the Department and Controller, he should have adopted a transparent and due procedure and shown common produce expected of him. He certainly failed in his responsibility of proper supervision and control over the affairs. The conduct of Dr. Chander Bhan also needs to be probed.” This report was placed before the Board of Management in its next meeting held on 18.4.2003 and on a consideration thereof, the Board withheld the approval of the appointment of the petitioner. It is this decision which has been impugned before me. Learned counsel for the petitioner has mainly argued that the above report could not have been considered by the Board since it was merely a fact finding inquiry. Faced with this, learned counsel for respondents No.1 to 3 offered to have a regular inquiry conducted into this matter by any retired Judicial Officer to be appointed by this Court and undertook that the respondent-University would reconsider the matter in the light of the report of the regular inquiry. On instructions from the petitioner, learned counsel for the petitioner has declined this offer. In Jitendra Kumar and others v. State of Haryana and another, C.W.P No. 6323 of 2003 ::6:: (2008) 2 SCC 161, the Hon'ble Supreme Court, after reviewing the entire law on the subject, has held as follows :- “47. It is, therefore, evident that whereas the selectee as such has no legal right, the superior court in exercise of its judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on its part. Each case, therefore, must be considered on its own merit. 48. Dr. Rajeev Dhavan would submit that the negative right contemplated by reason of the aforementioned decisions should be held to have conferred a positive right on the selectee so as to hold that if there was no bona fide on the part of the State or if the State had not assigned any sufficient or cogent reasons for not appointing the selected candidates, the same would give rise to a legal right in the selectees which is although not an unqualified one. It was further submitted that the right becomes stronger when the selection process is completed and the candidates are selected. 49. Whether we apply the negative test or the positive test, the decision-making process should veer round the question in regard to the lack of bona fide or an act of arbitrariness on the part of the State. If lack of bona fide or arbitrariness on the part of the State is proved, whether the right is considered to be a vested or accrued right, or otherwise a negative right, the superior court may C.W.P No. 6323 of 2003 ::7:: exercise its power of judicial review. The judicial intervention would, thus, be possible only when a finding of fact is arrived at in regard to the aforementioned acts of omissions and commission on the part of the State and not otherwise. 50. The question which, therefore, is required to be posed is: Can in the exigencies of the situation obtaining herein the State be said to have acted bona fide in not making any appointment? Viewed against these parameters and against the backdrop of the refusal of the petitioner to face a regular inquiry which would have concluded this matter, I have not been able to persuade myself that the decision of the Board of Management is vitiated either by lack of bona fide or arbitrariness. The allegations in the present case relate to not only having caused financial loss but also mis-appropriation. In the circumstances, the decision of the Board of Management that approval be not granted to the appointment of the petitioner to the post of Director Human Resource Management cannot be faulted. Consequently, this petition is dismissed without, however, any costs. ( AJAY TEWARI ) November 04, 2008. JUDGE `kk'