1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Dr.Rajeev Kumar J.N.V.University, Jodhpur Gupta v. and another S.B.CIVIL WRIT PETITION NO.9609/2008 under Articles 226 and 227 of the Constitution of India. Date of Order :: 22nd December, 2008 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. S.D.Purohit, for the petitioner. Mr. P.R.Singh, for the caveator. .... BY THE COURT : In exercise of the powers conferred under Section 12(5) of the Jai Narain Vyas University Act, 1962 (hereinafter referred to as “the Act of 1962”), by an order dated 26.11.2008, the Vice Chancellor of the Jai Narain Vyas University (hereinafter referred to as “the University”) suspended the petitioner, an Associate Professor in the Department of Zoology with immediate effect for persistent negligence and scant regard. To quash the order aforesaid a writ, order or direction is sought through this petition for writ. 2 As per the petitioner no such emergency existed that may warrant exercise of powers by the Vice Chancellor under Section 12(5) of the Act of 1962 to place him under suspension. It is asserted that the suspension impugned is not bonafide but for collateral ground to frustrate the order dated 19.1.2006 passed by this Court in SBCivil Writ Petition No.137/2006. The petitioner was appointed as Head of the Zoology Department with the University on 1.9.2005 and by an order dated 3.1.2006 he was replaced by Dr. S.P.Singh as Head of the Department. To challenge the order dated 3.1.2006 he preferred a petition for writ (SBCivil Writ Petition No.137/2006) before this Court wherein by an interim order operation and effect of the order dated 3.1.2006 was stayed. The interim direction given by the Court was not complied with, therefore, the petitioner preferred a contempt petition and then only on 3.5.2006 compliance of the order passed by this Court was made by reappointing the petitioner as Head of the Department. According to the petitioner the order of suspension is an out come of the ill-will against him and for extraneous considerations. On behalf of the University a caveat is lodged to oppose admission of the writ petition and any interim direction on the stay application. A detailed reply to the writ petition has been filed on 3 behalf of the University justifying the order dated 26.11.2008. According to the caveator respondent the petitioner by various means is creating hindrance in smooth administration of the University and as such committed grave misconduct and that warranted his suspension. The allegation of malafides and extraneous considerations is empathetically denied and it is said that the petitioner was removed from the office of the Head of the Department prior to joining the office by the present Vice Chancellor and as such he is not at all concerned with the order removing the petitioner from the Headship. The respondents have also placed on record certain facts warranting exercise of powers under Section 12(5) of the Act of 1962 to place the petitioner under suspension. It is also said that as per ordinance 320 of the Jai Narain Vyas University Ordinance the competence for placing the petitioner under suspension rests with the syndicate, however, due to currency of the code of conduct for Rajasthan State Legislative Assembly Elections, it was not possible to hold the meeting of syndicate and, therefore, the Vice Chancellor left with no option but to exercise the emergency powers given under Section 12(5) of the Act of 1962. Heard counsel for the parties. The petitioner is holding the post of Assistant Professor and as per ordinance 320 of the 4 Jai Narain Vyas University Ordinance it is the syndicate, entitled to suspend him on grounds of grave misconduct and/or persistent negligence of duty. However, due to the inability to convene meeting of the syndicate immediately, the Vice Chancellor invoked emergency powers prescribed under Section 12(5) of the Act of 1962. Section 12(5) of the Act of 1962 reads as follows:- “(5)In any emergency, when, in the opinion of the Vice-Chancellor immediate action is required, the Vice-Chancellor shall take such action as he may deem necessary and shall at the earliest opportunity report the action taken to the officer, authority, or body who or which in the ordinary course would have dealt with the matter, but nothing in this sub-section shall be deemed to empower the Vice-Chancellor to incur any expenditure not duly authorised and provided for in the budget.” As per sub-section(8) of Section 12 of the Act of 1962 the Vice Chancellor is also having powers without prejudice to the provisions under sub-section (2) of Section 10 to make an inquiry himself or to cause it to be made by any officer directed by him against a teacher. Precisely, the question requires adjudication in the instant matter is that whether any genuine 5 emergency was existing to exercise extraordinary emergent powers? As per counsel for the petitioner there was no emergency so as to invoke Section 12(5) of the Act by the Vice Chancellor. The Vice Chancellor could have inquired all the issues relating to the petitioner by placing the same before the syndicate. It is emphasised that not a single allegation against the petitioner was causing any hindrance in administration of the University. A reliance is also placed by counsel for the petitioner upon a Division Bench judgment of this Court in the case of Mrs. Priti Prabha v. Dr. C.P. Singh & Ors., reported in 18 Raj. ILR 712. In the case aforesaid it was held that if it is shown that the circumstances for emergency did not exist or that the circumstances were such that it was impossible for any one to form an opinion therefrom suggestive of the existence of emergency, the opinion is challengeable on the ground of non-application of mind or perversity or on the ground that it was formed on collateral ground and was beyond the scope of Statute. The provisions contained under Section 12(5) are not designed to enable the Vice Chancellor to act as a substitute for various statutory bodies of the University. I am having no doubt about the preposition advanced by learned counsel, as it is well settled that the emergency powers conferred on the Vice Chancellor should be exercised with restraint and only 6 in such emergency situation where the authority ordinarily empowered to exercise such powers is unlikely to meet in the near future and deferring a decision for consideration of the appropriate body is likely to create serious administrative inconvenience. Routine matter like creation of teaching and academic posts, appointment on the said posts finalising recruitment procedure, promotions under Career Advancement Scheme, upgradation of posts may not be the issues where emergency powers should be exercised, however, the issue relating to discipline requires immediate consideration and in the instant matter for various obvious reasons the Vice Chancellor rightly reached at the conclusion that the meeting of the syndicate of the University was unlikely. To get the circumstances in which the Vice Chancellor exercised emergency powers examined, counsel for the respondent University has shown notes and orders made during the process that resulted into the order of suspension. All the notes on basis of which the Vice Chancellor formed an opinion to exercise powers under Section 12(5) of the Act of 1962 are quoted below:- “Prior to 26th November, 2008, many complaints about working of Dr. Rajeev Kumar Gupta have been received by this Office, which are available in the office record. 7 Further, Dr. Gupta persistently not complying with the orders of the authorities of the University including the Hon'ble Vice- Chancellor like, he did not attend the meeting on 23rd Sept., 2008 inspite of important issues related to the department of Zoology were under consideration. (Report of the Committee produced herewith) On 16th Oct., 2008 Dr. Gupta, Head, Department of Zoology was asked by the Hon'ble Vice-Chancellor personally to meet in the office of the Hon'ble Vice-Chancellor immediately after meeting of the Academic Council to discuss the problem of admission in the Department, but he did not turn up to the office of the Hon'ble Vice-Chancellor and deliberately left the Central Office immediately after the meeting. (Note-Sheet is enclosed along with the present note-sheet) Dr. Rajeev Kumar Gupta was also requested to meet the Hon'ble Vice-Chancellor on 26th Nov., 2008 at 1:00 p.m. and even after repeated requests, he did not turn up to the office of the Hon'ble Vice-Chancellor and deliberately dis-obeyed the direction of the Hon'ble Vice-Chancellor. (report from Para No. 1 to 6 is produced herewith) In pursuance to the above cited persistent negligence and showing scant regard, the Hon'ble Vice-Chancellor can initiate action against Dr. Rajeev Kumar Gupta under Schedule-II of Appendix-B of Ordinance 320. The procedure for initiating disciplinary action against an y teacher, who committed said offence, has prescribed in the Ordinance 8 320 of the University Act. The relevant part or Ordinance 320 is as under: The Syndicate shall be entitled to suspend and/or determine the engagement of the teacher on grounds of grave misconduct and / or persistent negligence of duty, in the manner hereinafter provided. (Handbook will be placed on Table for perusal of Ordinance 320) The power to terminate or suspend to a teacher is vested upon the Syndicate. In case in any emergency, when, in the opinion of the Vice-Chancellor, immediate action is required, the Vice-Chancellor shall take such action as he may deem necessary and shall at the earlier opportunity report the action taken to the officer, authority, or body who or which in the ordinary course would have dealt with the matter, under Section 12 (5) of the JNV University Act, 1962. Since, immediate convening of the Syndicate meeting is not possible, so the Hon'ble Vice- Chancellor may deal this matter under Section 12(5) and Section 12(8) of the JNV University, Act 1962. Submitted for necessary orders.” The opinion formed by the Vice-Chancellor on basis of the notings aforesaid reads as follows:- “Paras 7 to 14 have been considered and I am of the opinion that the working of Dr. Rajeev Kumar Gupta is undignified and is persistent 9 negligence and showing scant regard and immediate action is needed and the power to take action against a teacher is provided under the Ordinance 320-B where Syndicate is empowered to take action to suspend a teacher on the ground of grave misconduct and persistent negligence of duty in the manner hereinafter provided. But since the calling of immediate Syndicate meeting is not possible, so the powers provided under Section 12(5) and 12(8) of the Act of 1962, I order to suspend Dr. Rajeev Kumar Gupta with immediate effect on the ground of persistent negligence of duty and showing scant regard. Further a committee is constituted under Section 12(8) to inquire and prepare complete Charge-sheet cause an enquiry by following: 1.Prof. L.C. Bhandari Convener Dean, Faculty of Commerce Management Study. 2.Prof. S.S. Sharma Member Ex-Dean, Faculty of Law 3.Prof. A.K. Malik Member Department of Psychology” From reading of the notes and the opinion drawn by the Vice Chancellor, it is apparent that the Vice Chancellor considered all existing circumstances objectively and looking to the fact that the meeting of the syndicate in immediate future was unlikely, he decided to invoke emergency powers. The Vice Chancellor considered all the facts available and decided for taking an immediate step to maintain discipline. The discretion exercised by him is not ill-founded or perverse. This Court while discharging 10 powers in its extraordinary jurisdiction is not suppose to interfere with day to day administrative functions of an autonomous body like the respondent University. The powers under Article 226 of the Constitution of India are meant for removing wrongs existing due to violation of statute and to protect fundamental and statutory rights but not to check objective discretion of a competent authority. In the instant matter I do not find any material available on record to substantiate the allegation of the use of emergent power for collateral grounds. However, looking to the fact that the Vice Chancellor has exercised emergent powers and that is required to be placed before the syndicate as soon as possible, it shall be appropriate to direct the University to convene the meeting of syndicate within a period of ten days from today to report the action taken by the Vice Chancellor to it. Accordingly, the petition for writ is dismissed with a direction to the respondents to report the action in question to the syndicate of the University on or before 2nd January, 2009. ( GOVIND MATHUR ),J. kkm/ps.