1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: ORDER Shyam Prakash Shrivastava vs State of Rajasthan & Ors. S.B. CIVIL WRIT PETITION NO.5879/2007 UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. DATE OF ORDER :: 24th January, 2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.Mahesh Thanvi,for the petitioner. Mr.JP Joshi, ] Mr.Rishi Vaishanav],for the respondents. <><><> BY THE COURT : Heard learned counsel for the parties. According to the petitioner he possesses the two post graduate decrees; of M.A. (English Literature) as well as M.A. (Economics) and also has M.Ed degree. The respondent Gandhi Vidhya Mandir, Sardar Sahar, Churu is a registered Non-Government Educational Institute of Advance Studies in Education and is recognized under the National Teachers Education Council Act, 1993. The petitioner has placed on record the copy of the recognition letter dated 24.2.1997 on record. With the sanction of the State Government for creating temporary posts of reader in 2 the respondent educational institute in the pay scale of Rs.2650-4500, the posts were created in the non- petitioner-institute. The petitioner being qualified for appointment on the post of Reader applied for his selection and he was selected and given appointment by the respondent-institute on the post of reader. The petitoner joined duties on 16th Sept., 1999. According to the petitioner, the State Government issued directions and guidelines for converting these temporary posts into permanent posts vide order dated 19th June, 1991. However, the posts yet have not been declared permanent. According to the petitioner, the posts are continuing and not likely to be abolished. In substance, according to the petitioner, he is appointed on a post after due selection and is entitled to continue on the post till he can be removed in accordance with law, but petitioner has been removed from service by absolutely arbitrary act of the respondent-institute vide order dated 31.8.2007. According to petitioner the order dated 31.8.2007 is non-speaking order and wholly without jurisdiction and has been passed without any reason. The respondent submitted reply to the writ petition and alleged that petitioner has filed the writ petition by suppressing the material facts from this Court and he has wrongly stated that his services have been terminated without holding any 3 inquiry against him and without providing any opportunity to hearing to him. According to the non- petitioner-institute as a matter of fact, several complaints were received against the petitioner from the female colleagues of the petitioner about his mis-behaviour in co-educational institute. In support of it, copy of a complaint lodged by oneMiss Sunita Jain Annex.R/3/1 dated 30.7.2007 has been placed on record by the respondent-institute. Copy of the another complaint lodged by one Sarita Sharma dated 24.8.2007 is also placed on record as Annex.R/3/2. Not only this, the petitioner was asked to submit his explanation before the inquiry committee constituted by the Principal and copy of this show cause notice dated 24.8.2007 is Annex.R/3/3. In response of said notice dated 24.8.2007, the petitioner submitted his explanation on 25.8.2007 at 4.45 PM and denied the allegations. Copy of reply given by the petitioner is placed on record as Annex.R/3/6. After show cause notice and after hearing petitioner by the committee appointed by the Principal of the college, the committee submitted its report to the Principal onthe same day i.e., 25.8.2007 itself. According to the non- petitioner after considering the report submitted by the committee, the Principal of the institute made recommendation to the Registrar Gandhi Vidhiya 4 Mandir, Sardar Sahar for termination of services of the petitioner vide his letter dated 29.8.2007 and considering entire material available on record, the services of the petitioner were terminated vide order dated 31.8.2007. According to learned counsel for the respondent, the respondent-institute is a deemed University and is not State as defined under Article 12 of the Constitution of India, therefore,the writ petition is not maintainable. Further the petitioner was given full opportunity to represent his case and after giving full opportunity of hearing to the petitioner, the committee found the petitioner to be guilty. These facts, were suppressed by the petitioner, therefore, the writ petition of the petitioner deserves to be dismissed and there is reasons for petitioner's removal from service looking to the allegation that justifies the removal of the petitioner from service. Learned counsel for the petitioner vehemently submitted that the petitioner's services were removed by the impugned order Annex.11 dated 31.8.2007 and this order nowhere speaks that the petitioner was removed in pursuance of any decision taken in any departmental inquiry held against the petitioner. The material which have been placed on record by the non-petitioner with respect to the alleged misconduct 5 of the petitioner clearly shows that those documents have no relevance and connection with the order dated 31.8.2007. It is submitted that nothing can be supplemented in the order dated 31.8.2007 (Annex.11). Otherwise also, it is submitted that the committee's alleged decision is void-ab-initio and whole proceeding has been completed in hot haste manner and even a letter Annex.R/3/3 was issued to the petitioner on the basis of the alleged incident which alleged to took place on 24th Oct., 2007 at 10.30 in morning and petitioner was asked to submit the reply on the same day. This notice was served upon the petitioner at 3.45 PM. The another letter issued to the petitioner was issued on 25.8.2007 and was given to the petitioner at 12.15 PM and petitioner was asked to submit reply by same day which he submitted on 25.8.2007 itself. The committee submitted its inquiry report without holding any inquiry. According to learned counsel for the petitioner for the first time in reply said inquiry report and alleged order dated 29.8.2007 have been projected to be basis for issuing order dated 31.8.2007. It is submitted that there is no reference of the order dated 29.8.2007 in the order dated 31.8.2007 and this order dated 29.8.2007 is marked to be a document secret/confidential and was not conveyed to the petitioner at any point of time. 6 I considered the submissions of learned counsel for the parties and perused the record. In support of preliminary objection, learned counsel for the respondent Shri JP Joshi relied upon the judgment of this Court delivered in the case of Praveen Kumar & Anr. Vs. Jain Vishva Bharati Institute & Anr. Reported in RLW 2004(4) Raj 2528 wherein it has been held by the single judge of this Court that deemed University cannot be said to be falling in terms of State as provided under Article 12 of the Constitution of India and it is not amenable to extra ordinary jurisdiction of the High Court under Article 226 of the Constitution of India. It is not in dispute that decision of this Court delivered in the case of Praveen Kumar (supra) has been challenged by preferring appeal and the special appeal has been admitted by the Division Bench of this Court. In view of the above reason, I am not inclined to dismiss the writ petition of the petitioner only on the ground that writ has been preferred against the deemed University. So far as alleged suppression of facts by the petitioner about the allegation of his mis-behavour with colleagues are concerned, it appears from the impugned order that there is no reference of complaint made by any colleagues and holding of any inquiry nor there is reference of any order passed in 7 the inquiry in consequence of which the impugned order dated 31.8.2007 could have been passed. In view of the above reasons, if the petitioner has not given reference of some incidents, which might have taken place between the staff members of the respondent-University, I do not find that it has any material bearing particularly in view of the fact that the allegation against the petitioner levelled in the complaint also on the face of it appears to be of trivial nature. In first complaint it is alleged that petitioner verbally quarreled with one Miss Santosh Jain and that is why she lodged a complaint of petitioner's mis-behaviour with her. The another complaint is a complaint lodged by one colleague of the petitioner working in the same institution, which appears to be also with respect to some utterance of the words to Sarita Sharma by the petitioner. The explanation was sought from the petitioner on the same day with respect to the incident which took place with Smt. Sarita Sharma at about 10.35 PM in the college premises and the committee was constituted on the same day. Be that as it may be, the explanation was called from the petitioner at 3.45 PM and he was asked to submit his explanation by 5.00 PM on the same day. The allegations were denied by the petitioner in writing and, thereafter, it is alleged 8 that on the same day i.e., on 25.8.2007 inquiry was completed and in the inquiry report it is mentioned that the petitioner admitted his guilt but to hide the truth, he denied the allegations in his reply. In the inquiry report it is stated that one Antia Tetarwal Ex-B.ed student was also present at the time of incident and she corroborated and supported the allegation of Smt. Sarita Sharma. The inquiry committee even observed that in explanation, the petitioner gave names of some persons, but they were not present at the time of incident. It is nowhere stated when the matter was inquired by the inquiry committee so as to record the statement of various persons named in the inquiry report whose presence has been denied by the inquiry committee. Be that as it may be, it has been submitted by the respondent that in view of the inquiry report, the inquiry order was passed and this order is dated 29.8.2007 and the same has been marked as confidential. The respondent even failed to disclose as to how and when the order dated 29.8.2007 was served upon the petitioner. The allegations on the basis of which, the petitioner's services have been terminated also speaks volumes against the respondent as the harassest possible order has been passed against the petitioner in the impugned order. Therefore, firstly, the order dated 31.8.2007 9 nowhere conveys that it has been passed in view of the decision taken against the petitioner after holding any inquiry and is a consequential order and secondly,the respondent's counsel submits that petitioner's services have not been terminated as a termination of service simplicitor but has been result of holding the petitioner guilty then from the facts, it is clear that the petitioner has not been given adequate opportunity of hearing before passing of the impugned order of terminating his services. It is also not the case of the respondent that petitioner was aware of the order passed by any inquiry committee and he suppressed the said order. In view of the above reasons, the writ petition deserves to be allowed, hence allowed and the order dated 31.8.2007 is quashed and set aside. The petitioner will be entitled to work on the post on which he was working before passing of the order dated 31.8.2007. (PRAKASH TATIA), J. c.p.Goyal/-