1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: JUDGMENT :: (1) University of Jodhpur Vs. Dr.Gopal Krishan Lohra D.B.CIVIL SPECIAL APPEAL (W) NO.241/1992. (2) Dr. Bhawneshwar Derasari Vs. University of Jodhpur D.B.CIVIL SPECIAL APPEAL (W) NO.240/1992. Date of Judgment :::: 10th May 2010. P R E S E N T HON’BLE MR. JUSTICE A.M.SAPRE HON’BLE MR. JUSTICE DINESH MAHESHWARI Ms. Kusum Rao, for the appellant in SAW No.241/1992. Mr.J.P.Joshi ) Mr.Khet Singh) for the appellant in SAW No.240/1992. Mr.M.R.Singhvi) Mr.Sunil Bhandari) Mr.P.K.Lohra) for the contesting respondent-the writ petitioner. <><><> BY THE COURT: (Per Dinesh Maheshwari, J.) These two intra-court appeals, directed against the same order dated 27.03.1992 whereby the learned Single Judge of this Court has allowed the writ petition (CWP No.461/1983) preferred on behalf of the contesting respondent Dr. Gopal Krishan Lohra (the writ petitioner), involving similar questions on the same set of facts, have been considered together; and are taken up for disposal by this common judgment. By the order impugned, the learned Single Judge has upheld the challenge to the order dated 20.10.1982 (Annex.15) whereby the appellant-University of Jodhpur (now Jai Narain Vyas University) had terminated the services of the writ petitioner from the post of 2 Medical Officer pursuant to the resolution dated 09/10.10.1982 (Annex.14) as adopted by its Syndicate essentially for the reason that the writ petitioner failed to report on duty after the expiry of the period of extra-ordinary leave; and, while quashing the aforesaid resolution and the termination order and while directing that the period of the writ petitioner’s absence from duty from the date of termination until the date of reinstatement shall be considered extra- ordinary leave without pay, the learned Single Judge has held him entitled to the benefit of continuity of service but without effect on the employment of the other appellant Dr. Bhawneshwar Derasari on the post of Medical Officer. Shorn of unnecessary details, the facts, events, and background aspects relevant for the present purpose could be noticed thus: By an order dated 11.01.1974, the writ petitioner was appointed as Medical Officer in the appellant-University; he joined as such on 16.01.1974; and was confirmed in his appointment by the order dated 20.01.1975. The writ petitioner had applied for foreign assignment and his selection thereto was conveyed by the Government of India in its Ministry of Home Affairs under the communication dated 26.10.1978 (Annex.R/1); and, by the order dated 07.11.1978 (Annex.R/3), the appellant-University granted him extra-ordinary leave without pay for two years from the date he was relieved with permission to take up the assignment in Iran. However, the writ petitioner did not avail the leave in pursuance of the said order Annexure-R/3. On the other hand, the writ petitioner applied for and was granted leave by the appellant-University to pursue his post graduation course by an order dated 30.11.1979 (Annex.3) wherein 3 the purpose of leave was stated in the following terms: ‘to do P.G. course of D.V.D. at Rohtak to join elsewhere’. In a parallel chain of events, by an order dated 03.09.1979 as issued by the Director, Medical and Health Department, the writ petitioner came to be appointed as Civil Assistant Surgeon (C.A.S.) with the Government of Rajasthan after selection from the Rajasthan Public Service Commission. Admittedly, the writ petitioner joined with the Government of Rajasthan as C.A.S. on 01.12.1979. According to the petitioner, ‘after joining as aforesaid he proceeded on leave as he was to further pursue post-graduation course’. Then, the Assistant Registrar (Establishment Branch) of the appellant-University issued a No Objection Certificate (NOC) on 28.01.1980 (Annex.4) conveying that the University had no objection in the writ petitioner taking up assignment in Iran. It appears that the writ petitioner proceeded for his Iran assignment in the month of May 1980; and, according to the writ petitioner, he did so ‘after resigning the Government job of C.A.S. on 12.5.1980’. While continuing with his assignment in Iran, the writ petitioner applied to the appellant-University for extension of his leave; and, by the letter dated 12.01.1982, the Registrar of the University conveyed extension of his extra-ordinary leave for a period of six months w.e.f. 29.11.1981. According to the petitioner, he sought further extension of leave under the communication dated 14.05.1982 and under other alleged communications dated 20.06.1982, 15.07.1982 etc. and under the telegram dated 20.07.1982. However, the appellant- University, by way of the telegram dated 21.07.1982 (Annex.12), asked the writ petitioner to ‘join duty positively by first week of August’. 4 The petitioner having not joined and his leave having not been extended, the Syndicate of the appellant University proceeded to adopt the questioned resolution dated 09/10.10.1982 to the effect that the services of the petitioner be terminated; and consequent thereto, the impugned termination order dated 20.12.1982 came to be issued. It appears further that on 22.10.1982, the University proceeded to issue an advertisement (Annex.17) inviting applications for various posts including the post of Medical Officer. In the backdrop of the aforesaid facts and events, the writ petition wherefrom these intra-court appeals arise was filed on behalf of the writ petitioner Dr.Gopal Krishan Lohra by his power of attorney holder, father, Shri M.K. Lohra on 14.02.1983 seeking to question the said resolution dated 09/10.10.1982 (Annex.14), the order dated 20.10.1982 (Annex.15), and the advertisement dated 22.10.1982 (Annex.17) with the submissions, inter alia, that the order in question was received by the petitioner in Iran and the same was sent by him to his father along with special power of attorney to prosecute the legal remedy in this behalf. Assailing the aforesaid actions of the appellant-University, the grounds were stated in the writ petition, inter alia, to the effect that it was entirely unjustified for the Syndicate to have adopted the resolution for termination of the services of the petitioner though he had not completed even three years in the foreign assignment and when in view of the other resolution adopted by the Syndicate, there was no occasion for the University to decline him further leave; that the petitioner was never served with any notice of penal consequences and he was justified in continuing with his assignment looking to the past practices; that termination of services of the 5 petitioner in the manner brought about was violative of the principles enshrined in Article 311 of the Constitution of India and so also the principles of natural justice; that the reasons suggested in the resolution about essential nature of medical services were rather of misnomer and deputation to the developing countries were made on Government to Government basis in public interest. The petitioner also referred to several instances of the Government employees and so also the University employees who were granted extra-ordinary leave for longer period and referred to the resolution dated 28.04.1982 as adopted by the Syndicate whereby leave could be granted upto a period of five years. It was averred in the writ petition regarding the other appellant Dr. Bhawneshwar Derasari that he was appointed as Medical officer as a leave substitute w.e.f. 04.09.1979 and was continuing as such but explanatory note of the aforesaid agenda item No.28 of the meeting dated 09/10.10.1982 made it clear that the said incumbent had been given assurance by the then Vice-Chancellor for permanent absorption. It was alleged that termination of services of the petitioner was for collateral purpose so as to absorb the said other incumbent; and the advertisement was that of an empty formality. In its reply to the petition, the appellant-University though did not dispute the fact of giving NOC aforesaid but alleged that the petitioner sought leave to do his post graduation course and never stated that he wanted to join C.A.S. in the State service; and, according to the appellant, if the petitioner joined the State service, it was without notice to the University and wholly unauthorised. It was further submitted that an employee under the University being not a 6 civil servant of the Union or of the State, was not entitled to the protection under Article 311 of the Constitution of India; that the relationship between the petitioner and the University of Jodhpur being contractual in nature, no petition under Article 226 was maintainable and the only remedy for the petitioner was for claiming damages by filing a civil suit. It was further contended that the order Annexure-15 was not punitive in nature but was that of termination simplicitor as a result of the petitioner not joining the duties in terms of the telegram dated 21.07.1982; and that there being no specific rules prescribed for holding of an inquiry before passing of termination order, the order impugned could not be held violative of the principles of natural justice. It was yet further contended that the grant of leave upto 5 years was discretionary and not as of right and the same was declined in the case of petitioner because the absence of the Medical Officer had been against public interest. The University further contended that taking up of foreign assignment by the petitioner was purely for personal amelioration, at the cost of public interest of rendering services to the local people and therefore, if the leave had not been extended in the case of the writ petitioner and, as a result of his not joining the duty, if permanent employment was being offered to another person, no cause of justice could be held suffering so as to warrant invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India. It was also contended that the petition involved disputed questions of facts inasmuch as the receipt of letters seeking extension of leave was very much in dispute; that the petition as filed was not maintainable when not supported by an affidavit of the petitioner himself; and that the petitioner was guilty of concealment of material facts. The other 7 appellant also filed a separate reply to the writ petition justifying the order passed against the writ petitioner; and referred to the various instances where the services were terminated for the person concerned not joining despite refusal of leave. The learned Single Judge of this Court, while dealing with the writ petition in the impugned order dated 27.03.1992, observed in the first place that though the provisions contained in Article 311 of the Constitution of India did not apply in terms to the writ petitioner but then, the University being a creature of the Statute, having been established under the University of Jodhpur Act, 1962 ('the Act of 1962'), owed a duty to act fairly, justly and in public interest; and was amenable to Article 226 of the Constitution of India if its action could be held arbitrary and unreasonable and also if its actions were held to be in prejudice to any statutory duty. The learned Judge held that the employment of the writ petitioner was not a case of private contract; and the writ petitioner was, undoubtedly, an officer of the University, his appointment being under the relevant statutory provisions of the Act of 1962 and the Rajasthan University Teachers and Officers (Special Conditions of Service) Act, 1974. The learned Judge referred to Section 35 of the Act of 1962 and Ordinance 320 and pointed out that termination of service could only be brought about as per the provisions contained therein; and while finding that no inquiry was held in the case of the writ petitioner, held as under:- “It is not disputed that no inquiry of any nature whatever was held before passing resolution Ex.14 and imposing penalty vide Annx.15. The impugned order undoubtedly has been passed without following the principles of natural justice. Thus, the termination order Annx.14 and Annx.15 are clearly in violation of the statutory duty cast upon the University of Jodhpur to hold an inquiry before terminating the services of the petitioner.” 8 The learned Single Judge further observed that even if the agreement was not statutory in character and viewing the case as of pure contractual matter between the University and the writ petitioner, the requirements of Article 14 of the Constitution of India extended even thereto; and referred to the principles enunciated in the case of Kumari Shrilekha Vidyarthi and Others v. State of Uttar Pradesh and Others: 1991 (1) SCC 212 . The learned Judge found the action of the appellant-University unsustainable for violation of the principles of natural justice while saying,- “The facts which are not disputed before me are that the termination of petitioner's service was on charge of dis- obedience and/or wilfull absence from duty and that such termination was brought about without affording any opportunity in any manner to the petitioner. The act was clearly in breach of elementary principles of natural justice. An action which does not conform to principles of natural justice, where adherence thereto is not excluded, clearly suffers from vice of arbitrariness, being violative of principles of natural justice and can not be sustained.” The learned Single Judge further noticed and rejected the contentions on behalf of the University that grant of leave was not as a matter of right, that the University was within its right to refuse further extension of extra-ordinary leave, and that on the petitioner failing to resume his duties despite such refusal, the University was justified in terminating his services. The learned Single Judge observed that such could not be accepted as abstract proposition; that the University was not absolved from the duty to act fairly and adherence to rules of natural justice was inherent in the duty to act fairly. The learned Judge said that the condition of employment as prescribed through agreement required the University to hold investigation into the alleged misconduct of disobeying the orders 9 and over-staying on deputation without leave being sanctioned; and, with reference to the decision of the Hon’ble Supreme Court in the case of Jai Shakar v. State of Rajasthan: AIR 1966 SC 492, observed that even where the relevant rules prescribe automatic cessation of employment on over-staying the leave, an opportunity must be given to the person concerned against whom such an order is proposed. Then, the learned Single Judge rejected the contention of the appellants that the petitioner had taken foreign assignment for his personal amelioration and better advancement and hence, had no equity in his favour while observing,- “As I have discussed above, the very fact that the foreign assignment is channelled through F.A.S. and External Affairs Ministry is deeply involved in rendering all necessary assistance for betterment of diplomatic mission as well as for the betterment of foreign exchange. The taking up of foreign assignment is not merely for personal amelioration but is also in public interests. What has been considered to be in public interest by framing the policy by Union of India which incidentally also gives chances to amelioration of public servant, the incumbent cannot be deprived of the same by calling it abhorrent by the statutory authority like University of Jodhpur. As a matter of fact, so long as the F.A.S. approves all further extensions of deputation, the Indian employer has no discretion to refuse extension of leave as it will be contrary to the spirit of diplomatic mission and contrary to public interest. The very fact that in taking of foreign assignment, two important ministries of Central Government are involved, does not leave the matter of deputation to parent employer and employee alone. No attempt has been made by the University to know from F.A.S. department of Home Ministry of Government of India as to whether petitioner has informed about renewal of his contract to Indian Embassy…......” The learned Judge also referred to the guidelines issued by the Government of India providing for keeping lien on the post in case of foreign assignments for two years extendable to five years and observed that extension of foreign assignment for a period of 5 10 years had been considered to be matter of routine and it was not disputed that the University had also been granting extra-ordinary leave upto a period of five years in the matters of taking foreign assignments. The learned Judge observed that no reason had been assigned for excluding the petitioner from the benefit of extending 5 years period for extra-ordinary leave; and the only ground suggested was that there being only one post of Medical Officer, the University could not afford to keep services of the only incumbent available on deputation for a long period. The learned Judge rejected such ground as fallacious with the observation that the University had made arrangement for keeping the medical services going on by appointing a person against leave vacancy and then, it was not the case of the University that successor in the office of the petitioner would not be entitled to foreign assignment even for two years. The learned Judge also observed that that the medical service was not a preserve of the University alone; rather the doctors employed in Government of Rajasthan, Central Government and other semi- Government organizations were allowed to take foreign assignment for a period of 5 years or more in many cases. On the considerations and for the reasons aforesaid, the learned Single Judge proceeded to allow the petition and issued the writ as noticed supra. Aggrieved, the respondents in the writ petitioner, the University and the said other incumbent on the post of Medical Officer as leave substitute, have preferred these intra-court appeals. It may be noticed that immediately after passing of the order dated 27.03.1992, the writ petitioner submitted a so-called joining report to the appellant-University on 28.03.1992. However, in the 11 stay application moved in the appeal preferred on behalf of the University, a Division Bench of this Court considered all the facts and circumstances of the case and found such so-called joining of no bearing with the observations that the learned Single Judge having not ordered reinstatement with immediate effect, the University was required to pass an order for the purpose that had not been done. The Division Bench further observed that the petitioner was not going to suffer irreparable injury if not allowed to join duty particularly in view of the contents of the affidavit filed in the writ petition on 11.02.1992 wherein he admitted being in temporary employment and being ready to forgo the same as soon as reinstated with the University. The Division Bench found prima facie good grounds for staying the operation of the impugned order and hence, stayed the same until disposal of the appeal. At this juncture, the contents of paragraph 3 of the said affidavit filed by the petitioner in the writ petition could be usefully noticed as under:- “That I have been persuing the present case and have also filed applications for early hearing of the writ petition. I have come back to India somewhere in June, 1990 and thereafter I have not been able to get any permanent/regular employment in any Government Institution. At present I have only a temporary engagement which I can forgo as soon as I am reinstated with the University.” Before proceeding further, appropriate it shall be to take note of certain other subsequent events too. On 28.10.1996, the writ petitioner filed an affidavit in the appeal preferred by the University with the submissions, inter alia, that he served with Oil and Natural Gas Commission for 3 months from February 1993 and then, he joined State services as Medical Officer on ad hoc basis in the month of April 1993; that he was keen to join the University and was 12 prepared to resign State services as and when necessity arise. On behalf of the appellant-University an affidavit in response was filed stating, inter alia, that while obtaining leave on 30.11.1979, the petitioner did not disclose that he had been selected by the Government of Rajasthan; and he joined the State services without the knowledge of the University; and that he has presently joined the service with the Government in continuation of his earlier service which shows that he had a permanent lien with the Government and did not resign as alleged. The petitioner filed an affidavit in rejoinder to such submissions and pointed out that he came to be selected on 30.03.1993 by the Government temporarily and it was only by the order dated 26.08.1994 that he came to appointed on substantive basis; and it was wrong to say that he was continuing with reference to his earlier engagement i.e., the one pertaining to his joining on 01.12.1979. A synopsis has also been submitted on behalf of the contesting respondent-writ petitioner on 16.10.2009 in the appeal referring to the facts and events and stating, inter alia, that he joined as C.A.S. in the State of Rajasthan on 01.12.1979 and after serving for some time he resigned from the State services by his letter dated 12.05.1980; and ‘he served the State only for a short while i.e., about 5 months’. As per the contents of the said synopsis, the respondent was going to retire from the service on 28.02.2010; and, according to the respondent, if forced to remain in State service, he shall be getting pension for a short period of about 16 years and on the other hand, if retiring from University, he shall be getting pension on his total length of service, which will be more than 35 years. 13 We may also point out that by the time these appeals were finally heard by us, the writ petitioner had already reached the age of superannuation and it was sought to be contended on behalf of the appellants that the entire lis has been rendered redundant. Such submissions were put to stiff opposition by the learned counsel for the contesting respondent and, with reference to several decisions, it was urged that merely with passage of time, this matter cannot be considered redundant or infructuous; and the respondent cannot be made to suffer only because the Court stayed the operation of the impugned order. It does not appear necessary to dilate further on these submissions as we have heard the counsel for the parties on the merits of the case; and propose to deal with the matter on its merits. The learned counsel for the appellant-University contended that the writ petition as presented was not even maintainable for having been filed by the father of the writ petitioner as his power of attorney holder; and has referred to the decision by the learned Single Judge of this Court in the case of Dr.(Mrs.) Daksha Sankhla Vs. Jai Narain Vyas University, Jodhpur and Ors.: 2001 (2) RLW 1035. The learned counsel further contended that the respondent had been guilty of fraudulent conduct and of concealment of material facts when he did not inform the University of having joined the State services; and that his allegation of resignation from State services has not been established on record; and hence, on this count alone, the petition ought to have been dismissed. The learned counsel submitted that even under the Rajasthan Service Rules, a Government servant’s lien on a post stands terminated on his acquiring lien on a permanent post outside the cadre and in the 14 present case, for the petitioner having joined the State service, whatever were his rights with the University, stood extinguished. The learned counsel yet further contended that for all such acts of concealments and joining different jobs and then, with willful absence and failing to join after expiry of period of his leave, the writ petitioner had abandoned the service with the University; and the University did not commit any error in terminating his contractual employment particularly when it was the post of Medical Officer and another incumbent could not have been continued on ad hoc basis for indefinite time. The Learned counsel further contended that the period of leave, if at all granted, had already exhausted and thereafter, the petitioner could not have forced the appellant to grant him extension of leave; and his services were liable to be terminated when he failed to join. The learned counsel for