Ajay Tewari, J. - (1.) BY this writ petition, the petitioner has challenged the action of the respondent -Chandigarh Administration in cancelling his appointment as Registrar of the PEC University of Technology on two grounds; first, that the Chandigarh Administration had no power to cancel the same, and second, that even if there was any such power, its exercise in the present case is illegal.
(2.) THE Punjab Engineering College, which is a hoary institution of learning, was upgraded into Deemed University by notification dated 16.10.2003. As part thereof, it was registered as a Society under the Societies Registration Act and as per the Memorandum of Association, it has to be governed by a Board of Governors. The following clauses of Memorandum of Association are relevant: 4. Powers and Functions of the Institute (a) To acquire, Punjab Engineering College, Chandigarh, from Chandigarh Administration, through a notification to be issued by the latter. (b) (1) to (6) xxxx xxxx xxxx (7) To create academic and other posts, with the prior approval of the Chandigarh Administration, and to make appointments thereto (except in the case of Director). (8) To frame Bye -Laws of the Institute, including Bye -Laws for the terms and conditions of service of the existing employees of Punjab Engineering College, Chandigarh, for their transition to the Institute with the prior approval of the Chandigarh Administration. (9) To frame, alter, modify or rescind Bye -Laws and Rules with the prior approval of the Chandigarh Administration and Ministry of Human Resource Development (Government of India). (10) to (15b) xxxx xxxx xxxx (c) The executive powers of the Institute shall vest in the Board of Governors. The Board may in turn delegate, any of its powers, to any of the Committee or Committees constituted by it or to any officer or officers of the Institute. (d) Notwithstanding anything contained in this Article, the Institute shall not dispose of, in any manner, any immovable property without prior approval of the Chandigarh Administration. (e) In the discharge of its functions, the Institute shall abide by such directions, on questions of policy, as may be given to it by the Chandigarh Administration. In case of any doubt as to whether a question is or is not a question of policy, the decision of the Chandigarh Administration shall be final. (f) Any dispute, regarding interpretation of any of the Articles of this MOA or Bye -Laws of the Institute, shall be referred to the Chandigarh Administration whose decision shall be final and binding. (7) Power to Review, Hold Enquiries and Issue Directions (1) The Central Government/UGC/Chandigarh Administration may appoint one or more persons to review the work and progress of the Institute and to hold inquiries into the affairs thereof and to report thereon in such manner as it may direct. (2) During the pendency of an enquiry or otherwise, the Chandigarh Administration may, through a speaking order, suspend any resolution of the Board of Governors, Senate or any other Committee of the Institute. (3) Upon receipt of any such report, the Chandigarh Administration may take such action and issue such directions (including annulment of any resolutions) as it considers necessary in respect of any of the matters dealt with in the report and the Institute shall be bound to comply with such directions. (8) Adjustment of Income and property on Dissolution of the Institute. Any income or property, that shall remain after the satisfaction of all debts and liabilities on the winding up or dissolution of the Institute, shall be entirely transferred to the Chandigarh Administration. Pursuant to the memorandum of association, the Bye -Laws were also framed. The following are the relevant Bye -Laws: (4) Authorities of the Institute The following shall be the Authorities of the Institute, namely: (1) Board of Governors; (2) Senate; (3) Finance Committee; (4) Such other authorities as may be declared by the Bye -Laws and/or Rules to be the authorities of the Institute. 5. Board of Governors (A) Composition of BOG (1) The Board of Governors of the Institute shall consist of the following persons, namely: (a) An eminent educationist/industrialist to be selected by the Administration (Chairman). (b) Secretary, Technical Education, Chandigarh Administration, ex -officio Vice Chairman. (c) Finance Secretary, Chandigarh Administration, ex -officio. (d) Vice Chancellor, Punjab University, Chandigarh or his nominee. (e) Joint Secretary/Deputy Secretary, Technical Education, UT Chandigarh, ex -officio. (f) Nominee of the Department of Secondary Education and Higher Education, MHRD, Government of India, ex -officio. (g) Nominee of the Ministry of Home Affairs, Government of India, ex -officio, (h) Director, IIT, Delhi or his nominee; (i) Nominee of the Chairman, UGC. (j) Chairman, CII, Northern Region. (k) Director, CSIO, Chandigarh. (l) Two Technologists/Engineers/Educationists to be nominated by the Chandigarh Administration. (m) Two eminent Industrialists to be nominated by the Chandigarh Administration. (n) An eminent alumnus of the Institute to be nominated by the Chandigarh Administration. (o) Two Professors of the Institute to be nominated by the Senate. (p) Director of the Institute, ex -officio. (q) Registrar of the Institute shall be ex -officio Member -Secretary. (2) All the members of the Board of Governors other than ex -officio members and the members of the teaching staff shall hold office for a term of three years and shall be eligible for re -nomination. (3) Members of teaching staff in the above body shall hold office for a period of 2 years or till such time as they continue to be members of the teaching staff, whichever is less. (4) The Chairman of the Board shall preside over the meetings of the Board, the Finance Committee and convocations of the Institute. (B) Powers of the BOG (1) The Board of the Institute shall be responsible for the general superintendence, direction and control of the affairs of the Institute and shall exercise all the powers of the Institute not otherwise provided for by this Memorandum of Association, the Bye -Laws and Rules, and shall have the power to review the decisions of the Senate. (2) Without prejudice to the provisions of Sub -section (1), the Board of the Institute shall: (a) take decisions on questions of policy relating to the administration and working of the Institute; (b) institute courses of study at the Institute; (c) make the Bye -Laws with the prior approval of the Chandigarh Administration and Ministry of Human Resource Development (Government of India). (d) to create posts both, academic and non -academic, to determine their numbers, qualifications and cadres, with the prior approval of the Chandigarh Administration and to make appointments to such posts on the basis of the recommendations of the Selection Committee(s); (e) to consider and modify or repeal Bye -Laws and Rules, subject to approval of the Chandigarh Administration and Ministry of Human Resource Development (Government of India); (f) to consider and pass resolutions on the annual report, annual accounts and the budget; (g) to make estimates of the Institute for the next financial year and submit them to the Chandigarh Administration together with a statement of its development plans; (h) to exercise such other powers and perform such other duties as may be assigned to it and conferred upon it by this Memorandum of Association or the Bye -Laws/Rules. (3) The Board shall have the power to appoint such committee(s) as it considers necessary for the exercise of its powers and performance of its duties as defined under this Memorandum of Association. (C) Meetings of the BOG (1) The Board of Governors shall meet at least four times a year. Not less than 15 days notice shall be given for a meeting. A copy of the proceedings of each meeting shall be furnished to the Chairman of the BOG as soon as possible after the meeting. (2) Six persons shall constitute the quorum for the meeting of the Board. (3) Each member of the Board of Governors, including its Chairman, shall have one vote and decisions at the meeting of the Board shall be taken by simple majority. In case of a tie the Chairman shall have a casting vote. (4) Every meeting of the BOG shall be presided over by its Chairman. In the absence of the Chairman, the Secretary Technical Education (Vice Chairman) may preside over the meetings of BOG. In case both, the Chairman and the Vice Chairman, are not present at a meeting of the BOG, the members present would elect a Chairman from amongst themselves. (5) Any business, which may be necessary for the Board of Governors to conduct, may be carried out by circulating appropriate resolution thereon among its members and any resolution so circulated and approved by a simple majority shall be as effective and binding as it such resolution had been passed at a meeting of the Board. (6) If a member other than the Director or those representing the teachers accepts a full time appointment in the Institute or he does not attend three consecutive meetings of the Board of Governors without proper leave of absence, he shall cease to be a member of the Board. 9. Director (1) The Director shall be a whole time salaried officer of the Institute. (2) The Director shall be an eminent person from the field of Technical Education, preferably from the IIT system. He shall be appointed by the Chandigarh Administration on contractual basis on recommendation of a Search cum Selection Committee shall be headed by the Advisor to the Administrator and shall consist of the Secretary Technical Education, the Finance Secretary and shall have a representative each of the Central Government and the UGC. The Director shall hold office for a term of 5 years. His term shall be subject to renewal for further periods provided that every such appointment and terms thereof shall be subject to prior approval of the Chandigarh Administration. (Emphasis supplied) Provided that notwithstanding the expiry of the said period of 5 years, he can continue in office till his successor is appointed and assumes office, but not beyond six months. Provided further that a person appointed as Director shall retire from office during the tenure of his office or of extension, if any, when he completes the age of 62 years. 11. Registrar (A) (1) The Registrar shall be a whole -time salaried officer of the Institute. (2) The Registrar shall be appointed by the Board of Governors on contractual basis on the recommendation of the Selection Committee consisting of the following: (a) Director Chairman (b) One nominee of the Chandigarh Admn. Member (c) One nominee of the Board of Governors Member (3) The contractual appointment shall be for a period of 5 years. This term shall be subject to renewal for further periods provided that every such appointment and terms thereof shall be subject to prior approval of the Chandigarh Administration. (Emphasis supplied) Provided that notwithstanding the expiry of the said period of 5 years, he can continue in office till his successor is appointed and assumes office, but not beyond six months. Provided further that a person appointed as Registrar shall retire from office during the tenure of his office or of extension, if any, when he completes the age of 62 years. (4) The qualifications, emoluments and other terms and conditions of service of the Registrar shall be as may be determined by the Board of Governors with the approval of the Chandigarh Administration. (5) When the office of the Registrar is vacant or when the Registrar is absent by reason of illness or any other reason, the duties and functions of the Registrar shall be performed by such other person as the Director may appoint for the purpose. 19. Miscellaneous. (5) No act or proceedings of any authority or any Committee of the Institute shall become invalid merely by reasons of: (a) any vacancy therein or any defect in the constitution thereof; or (b) any defect in the nomination or appointment of a person acting as a member thereof; or (c) any irregularity in its procedure not affecting the merits of the case."
(3.) IT is averred that on 11.9.2005, the post of Registrar was advertised for the first time for which the petitioner had not applied. The post was re -advertised on 17.2.2008 and interviews in pursuance held on 11.9.2008. However, no selection was made. The post was again advertised on 19.10.2008 in response to which the petitioner applied. On 12.03.2009, the petitioner was recommended for appointment after following the complete selection process and the minutes of the selection committee were sent to the Chairman, Board of Governors for approval. Due to some allegations, appointment letter to the petitioner was withheld and a summary inquiry was conducted. After due consideration, the Chairman instructed the Director to issue appointment letter to the petitioner and he joined as Registrar of the College on 13.03.2009. On the same day, a fax was received by the Director from respondent No. 2 -Home Secretary (hereinafter referred to as respondent No. 2.) that the appointment letter to the petitioner be not issued till further orders. The Director replied that the appointment letter, on the direction of the Chairman, Board of Governors, had already been issued to the petitioner. On the same very day, another letter was received by the Director from respondent No. 2 by fax in which reference of some pending inquiry and certain irregularities in his appointment had been made and also invoking of the Model Code of Conduct issued by the Election Commission of India was made. The Director was required to file reply within 24 hours on violation of Model Code of Conduct in appointing the petitioner as Registrar. The Returning Officer was informed that the letter dated 5.3.2009 of the Election Commission of India regarding application of Model Code of Conduct was received by the college on 16.3.2009 through a circular dated 13.3.2009 of respondent No. 2 by when the appointment letter had already been issued to the candidate selected for the post of the Registrar PEC. There was no official communication received at that time that the matter was being inquired into by the Chandigarh Administration for any irregularities in the appointment of the petitioner and further that there has been no violation of the Model Code of Conduct as the process of selection was done with knowledge of the Chandigarh Administration, nominee of respondent No. 2 was also present during the Selection Committee meeting. The invitation/information, regarding the interviews to be conducted on 12.3.2009 was sent to the members of the Selection Committee, including the nominee of the Chandigarh Administration well before the Model Code became operative. No objection was received from the Chandigarh Administration during the period on the issue of interviews being conducted during the period the Model Code was in operation.;