- (1.) THE instant writ petition has been filed for quashing the impugned notice dt.12.1.2001 (Annx. 7), by which petitioner has been asked to show cause as why his appointment as Registrar of the University, vide order dated 27.2.99 (Annx. 5), be not revoked and further to declare that the said appointment order dated 27.2.99 (Annx. 5) is valid and the respondents be directed to treat the petitioner as confirmed after deleting Clauses (1) and (2) contained in the appointment letter.
(2.) THE facts and circumstances giving rise to this case are that the respondent University had issued an advertisement on 5.3.98 (Ann. 3) for the sole post of Registrar. A large number of candidates applied in pursuance of the same but only ten of them, including the petitioner, were called for interview. THE Selection Committee, headed by the learned Vice Chancellor- respondent No.2, met on 6.11.98 and after assessing the eligibility and suitability of said candidates prepared a select list wherein the name of one Mr. Raj Kishore Sharma was recommended. THE Selection Committee also included the name of the petitioner in the reserve list. THE recommendations of the Committee were placed before the Board of Management of the University (hereinafter called "the Board") on 9.11.98 and it approved the appointment of Mr. Raj Kishore Sharma as the Registrar, who joined and retired on 28.2.99. THE Vice Chancellor, vide letter dated 27.2.99 (Annx. 5) appointed the petitioner as the Registrar on temporary basis till further orders, subject to confirmation of the Board and petitioner joined therein. Subsequently, case of the petitioner was placed before the Board for approval but it is still pending as it has neither been approved nor disapproved. However, vide order dated 11.8.2000, the Board appointed a Three Members Committee to investigate whether petitioner was qualified for the post of the Registrar; whether there has been some change in the eligibility prior to filling up the post; whether his appointment could have been made from the reserve list; and whether the Board, at the time of approval of the selection, also approved any reserve list? THE enquiry on these issues is still pending. However, there has been some communications with the Chancellor of the Universities, viz. His Excellency the Governor, wherein certain orders were passed in respect of appointment of the petitioner as the Registrar. In pursuance of the same, the respondent No.2, issued impugned notice dated 12.1.2001 (Annx. 7) that as the appointment of the petitioner was prima facie illegal, why his services be not terminated. Petitioner submitted the reply to the impugned notice on 16.1.2001, but without waiting any final order thereon, he has approached this Court. Respondents have filed reply, through Mr. R.N. Mathur, learned Additional Advocate General, only to the stay application, but at the time of hearing for admission, learned counsel for the parties suggested that the matter be disposed of finally treating the reply to the application for interim relief as the reply to the main petition also. The matter was, thus, heard finally. Mr. Mathur has raised the preliminary objection regarding maintainability of the writ petition against the show cause notice by submitting that the petition is not only premature but it is also not maintainable as the show cause notice cannot be challenged in the writ jurisdiction. Mr. Prem Asopa, learned counsel for the petitioner has submitted that the petition is maintainable as the impugned show cause notice has been issued without authority of law and the Authority ought to have waited for the report of the Committee appointed by the Board. It is settled legal proposition that a show cause notice cannot be challenged in the writ jurisdiction unless the authority, which has issued it, is found to be having no jurisdiction in the matter, as held by the Constitution Bench of the Hon'ble Supreme Court in Calcutta Discount Co. Ltd. vs. Income Tax Officer (1), wherein the Court observed as under:- "It is well settled, however, that though the writ of prohibition or certiorari will not be issued against an executive authority, the High Courts have power to issue, in a fit case, an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority, acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court, it is well settled, will issue appropriate orders or directions to prevent such consequences." A similar view has subsequently been reiterated by the Hon'ble Apex Court in M.P. Industries Ltd. vs. Income Tax Officer & Ors., (2), State of Madras vs. Madurai Mills Co. Ltd. (3), M/s. S.B. Gurbaksh Singh vs. Union of India & Ors. (4), Titaghur Paper Mills Co. Ltd. vs. State of Orissa (5), Chief of Army Staff & Ors. vs. Maj. Dharam Pal Kukrety (6), Union of India vs. Brij Fertilizers (P) Ltd. (7), Union of India & Ors. vs. Upendra Singh (8), Ex. En. Bihar State Housing Board vs. Ramesh Kumar Singh (9), Union of India vs. Metal Bus Co. of India Ltd. (10) and Whirlpool Corporation vs. Registrar of Trade Marks & Ors. (11):
(3.) WHILE dealing with a similar issue in State of U.P. vs. Brahm Datt Sharma & Anr. (12), the Hon'ble Supreme Court observed as under:- "When a show cause notice is issued to a Government servant under the statutory provision seeking upon him to show cause, ordinarily the Government servant must place his case before the Authority concerned by showing cause and the Court should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued pulpably without any authority of law. An order violating fundamental principles of law and causing substantial injustice to a party may also be examined in a writ jurisdiction." Thus, in view of the above, there can be no dispute to the settled legal proposition that if an authority purports to take any action which is prima facie shown to be null and void and devoid of any jurisdiction, the show cause notice can also be challenged in writ jurisdiction and the proceedings can be quashed even at the stage of show cause notice. Moreso, when it is found by the Court that the show cause notice is flagrantly unjust, it may not allow the technical objections to stand in the way of granting the equitable relief. Mr. Asopa has submitted that the show cause notice has to be examined by this Court in the writ jurisdiction as the same is without jurisdiction and the learned Vice Chancellor is bound to give effect to the decision taken by the Board under Statute I (Clause 13(b), which had appointed a Committee vide resolution dated 14.7.2000 and the petitioner cannot be removed unless the Board takes a decision on the report of the Committee or passes an order otherwise. ;