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PETITIONER: DR.  J.  SHASHIDHARA PRASAD

       Vs.

RESPONDENT: GOVERNOR OF KARNATAKA & ANR.

DATE OF JUDGMENT:       27/11/1998

BENCH: M. SRINIVASAN, A.P. MISRA.

ACT:

HEADNOTE:

JUDGMENT: J U D G M E N T 1.  Delay condoned.  Leave granted. 2.  Heard learned counsel on both sides at length. 3.  The facts which are necessary for the  purpose  of  this judgment are as follows: The Governor of Karnataka, who is the Chancellor of the Mysore University, selected the  appellant  herein,  who was  Professor  in Physics in the University of Mysore to be the Vice Chancellor of the said University while  exercising his   powers   under  Section  11  of  the  Karnataka  State Universities Act, 1976.  An  order  was  passed  by  him  on August  20,  1997 by which he appointed the appellant herein as Vice Chancellor for a period of three years  with  effect from September 4,  1997.  But on the very next day, i.e.  on August 21, 1997, he passed another order referring to a news item which appeared in the Times of India in respect of  the appellant  herein stating that he had been facing a criminal case and had been named as the Vice Chancellor.   The  order passed  by  the  Chancellor  stated  that  he  was not aware earlier of the pendency of the criminal case as against  the appellant  herein  and  that  he  found  it not desirable to appoint the appellant as Vice Chancellor.  Consequently, the earlier order of appointment  was  rescinded  by  the  later order. 4.Aggrieved thereby  the  appellant  filed  a writ petition in the High Court of Karnataka which was taken on file as  writ  Petition  No.  23086 of 1997.  In the writ petition It was contended  by  the  appellant  that  in  the criminal case he was acquitted later as the charge was found to  be  unsustainable  and  that the order of the Chancellor rescinding the earlier order was not valid  inasmuch  as  he had  not  been  given any opportunity to be heard before It. The High Court dismissed the writ petition taking  the  view that  it  was  for  the  Chancellor  to  decide  whether the appellant could be appointed as the Vice Chancellor and even the pendency of the criminal case was sufficient for him  to cancel  the  order  of  appointment  inasmuch as it had been passed immediately and much before the  date  on  which  the appointment could   become   effective.      The   appellant challenged the said order  in  a  writ  appeal.    That  was

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dismissed by  a  Division  Bench  of  the  High  Court.  The appellant brought it to this Court by way of a special leave petition.  The appellant had also filed a review petition in the High  Court.    In  the  special  leave  petition;   the appellant  made  a  submission  that in the review petition, filed before the High Court,  notice  had  been  issued  and therefore,  he  won  Id withdraw the special leave petition, Consequently,  this  Court  dismissed  that  special   leave petition as  withdrawn.   Subsequently, the review petition, filed by the appellant, was dismissed by the High  Court  on the  ground  that  the  acquittal  of  the  appellant in the criminal case was subsequent to the order of the  Chancellor and   on  the  date  on  which  that  order  was  made,  the proceedings  in  the  criminal  case   were   pending   and, therefore,    it    was   supported   by   proper   reasons. Consequently, the review petition was dismissed.   Aggrieved thereby,  the  appellant  has  preferred  these  appeals  on special leave against both the original order  in  the  writ appeal and the order on the review petition . 5.  Mr.  P P Rao, learned senior  counsel  has  put forward two  contentions:  (1) the appellant was entitled to notice before the order was passed by  the  Chancellor;  and (2)  the  order  casts  a  stigma  against the appellant and principles of natural justice required an opportunity to  be given to  the appellant before such an order was passed.  It was contended that if such an opportunity  had  been  given, the  appellant  would  have  brought  to  the  notice of the Chancellor that "in the criminal case the judgment would  be pronounced  within  a  few days and would have requested the Chancellor to wait for a few days before passing any  order. So  far  as this factual aspect "is concerned, there no such averment in the writ it petition filed by the  appellant  in the High  Court.   However, it is not necessary for us to go into that aspect of the case. 6.  In support of his  contention,  Mr.    Rao  has cited various  decisions.  First in the line is the decision in S.  Govindaraju vs.  Karnataka S.R.T.C.  and Anr.  (1986) 3 SCC 273.  In that case the appellant therein was  selected for  appointment  as  Conductor  in the Karnataka State Road Transport Corporation.    He  was  not   given   a   regular appointment  but  he  was  appointed to work as Conductor in temporary vacancy.  He continued to work  for  a  period  of more than  240  days.    An  order  was  passed  against him terminating his services.  But the  Send  termination  order also   directed   that  he  would  forfeit  his  chance  for appointment in terms of selection and his name  shall  stand deleted from  the  select  list.    In such a situation, the Bench of this Court held that the appellant therein had  the right  to  be  given  an opportunity before such an order of termination was  passed.    The  relevant  passage  in   the judgment reads thus : "There is no dispute that the  appellants  services were  terminated on the ground of his being found unsuitable for the appointment and as a result of which  his  name  was deleted from  the  select list.  and he forfeited his chance for appointment.  Once a candidate is selected and his  name is included in the select list for appointment in accordance with  the  Regulations  he gets a right to be considered for appointment as and when vacancy arises.  On the  removal  of his name from the select list serious consequences entail as he forfeits  his  right  to employment in future.  In such a situation even though the Regulations do not  stipulate  for affording  any opportunity to the employee would be entitled to  an  opportunity  of  explanation,  though  no  elaborate enquiry would  be  necessary.    Giving  an  opportunity  of

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explanation would  meet  the  bare  minimal  requirement  of natural justice.    Before  the  services of an employee are terminated resulting  in  forfeiture  of  his  right  to  be considered  for  employment, opportunity of explanation must be afforded to the employee concerned." 7.  This ruling will not have  any  application  in the  present  case  as it is seen that the appellant therein was working as Conductor for some  time  and  the  order  of termination  itself precluded his chances for appointment in future also and his name was deleted from the  select  list. In the  background  of such facts, the ruling was given.  It is not necessary for us to consider whether the  observation regarding  a  person in the select list is still good law in view of the subsequent rulings of this Court. 8.Learned Senior counsel  for  the  appellant has  invited  our attention to the judgment in Shrawan Kumar Jha & Ors.  vs.  State of Bihar & Ors.  1991  Supp  (1)  SCC 330.   In  that  case the appellants, who were 175 in number were  appointed  as  Assistant  Teachers  by  the   District Superintendent  of Education, Dhanbad by order dated May 28, 1988.   By  order  dated  November  2,  1988,   the   Deputy Development Commissioner  cancelled their appointments.  The question whether they had joined duty or not was a  disputed one and  the  Court  did not go into the same.  On the other hand, the Court held that the principles of natural  justice demanded  opportunity  to  be  given  to  them  before their appointments were cancelled.  While allowing the appeal, the Court also directed the Secretary (Education), Government of Bihar  or  other  persons  nominated  by  him  to  give   an opportunity  of hearing to the appellants and give a finding as to whether, they  were  validly  appointed  as  Assistant Teachers.   They  were  also  directed  to  determine  as to whether any of the  teachers  had  joined  their  respective schools  and  for how much duration and that in case some of them had joined their schools and  worked,  they  should  be paid their salary for such period. 9.  This ruling does not help the appellant in  the present  case  as  it is seen that the order of cancellation came  long  after  the  date  specified  in  the  order   of appointment  for  the  appellants  to  join their respective posts.  In the present case the order  of  cancellation  was passed  the very next day, long before the date on which the appellant was to take charge as Vice Chancellor. 10.  As against this Mr.  K.K.   Venugopal  learned Senior counsel appearing for the second respondent, drew our attention  to  the judgment in Union Territory of Chandigarh vs.  Dilbagh Singh (1993) 1 SCC 154.  Reliance is placed  on paragraphs  11 and 12 of the judgment, which read as follows :         " 11 .    In  Shankarasan Dash vs.  Union of         India, a Constitution Bench of this Court which  had         occasion   to   examine   the  auestion  whether  a         candidate seeing appointment to a civil post can  be         regarded  to  have acquired an indefeasible right to         appointment in  such  post  merely  because  of  the         appearance  of  his  name  in the merit list (select         list) of candidates for such post has  answered  the         question in the negati ve by enunciating the correct         legal position thus :         "It is not correct to say that if  a  number         of   vacancies  are  notified  for  appointment  and         adequate number of candidates  are  found  fit,  the         successful  candidates acquire an indefeasible right         to be appointed which  cannot  legitimately  denied.         Ordinarily  the  notification  merely  amounts to an

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       invitation to  qualified  candidates  to  apply  for         recruitment  and  on  their  selection  they  do not         acquire any right to the post.  Unless the  relevant         recruitment rules so indicate, the State is under no         legal  duty  to fill up all or any of the vacancies.         However, 11 does not mean that  the  State  has  the         licence of  acting  in  an  arbitrary  manner.   The         decision not to fill up  the  vacancies  has  to  be         taken bona tide for appropriate reasons.  And if the         vacancies or any of them are filled up, the State is         bound  to  respect  the  comparative  merit  of  the         candidates, as reflected at  the  recruitment  test,         and no   discrimination  can  be  permitted.    This         correct position has been consistently  followed  by         this  Court,  and we do not find any discordant note         in  the  decisions  in  the  State  of  Haryana  vs.         Subhash Chander  Marwaha.  Neelima Shangla (Miss) v.         State of Haryana or Jitender  Kumar  v.    State  of         Punjab."         12.   If  we  have  regard  to   the   above         enunciation  that  a  candidate who finds a place in         the  select  list  as  a  candidate   selected   for         appointment  to  a  civil  post, does not acquire an         indefeasible right to be appointed in such  post  in         the  absence  of any specific rule entitling him for         such appointment and he could be  aggrieved  by  his         non-appointment only when the administration does so         either  arbitrarily  or for no bona tide reasons, it         follows  as  a  necessary  concomitant   that   such         candidate  even  if  has a legitimate expectation of         being appointed  in  such  posts  due  to  his  name         finding  a  place  in the select list of candidates,         cannot claim to have a right to be heard before such         select list is cancelled for  bona  tide  and  valid         reasons and  not  arbitrarily.  In the instant case,         when the Chandigarh  Administration  which  received         the  complaints  about  the  unfair  and injudicious         manner  in  which  select  list  of  candidates  for         appointment as conductors in CTU was prepared by the         Selection  Board  constitute  for the purpose, found         those complaints to be well founded  on  an  enquiry         got  made in that regard, we are unable to find that         the  Chandigarh  Administration  had  acted   either         arbitrarily  or  without bona fide and valid reasons         in cancelling such dubious select I  list.    Hence,         the  contentions  of  the  learned  counsel  for the         respondents as to the sustainabitity of the judgment         of CAT under appeal on the ground  of  non-affording         of  an  opportunity  of  hearing  to the respondents         (candidates in the select list)  is  a  misconceived         one and is consequently rejected." 11.   Mr. S Vijay Shankar, learned Advocate  General of  Karnataka  appearing  for  respondent  No.1  has  placed reliance on the judgment in State of U.P. & Anr.  v.  Girish Bihari  & Ors. (1997) 4 SCC 362. In that case the respondent was an IPS officer and was due to retire  on  superannuation on   31.3.96.  An  order  was  issued  by  the  Governor  on 20.3.1996 granting an extension of service  for  six  months from  31.3.96.  But on 23.3.1996, the order of extension was cancelled. The question was, whether the respondent therein was entitled  to have an opportunity of hearing before the order of cancellation was made.  The Court answered  the  question in negative.    The Court answered the question in negative. The Court also referred to the judgment in  Shrawan  Kumar’s

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case (supra) and observed thus:         "A Division Bench of this  Court  comprising         Kuldip Singh and  K.   Ramaswamy, JJ.  observed that         the candidates should have been given an opportunity         of hearing before their appointments were cancelled.         The court accordingly directed the Solicitor General         to ask  the  Secretary  (Education),  Government  of         Bihar  to  grant  an  opportunity  of hearing to the         candidates and to give a finding as to whether  they         were validly  appointed  as  Assistant Teacher.  The         Court also  ordered  that  if  anyone  had  actually         worked  as a Teacher, he or she would be entitled to         the salary for that period.  It  is  interesting  to         note  that this Court while directing that a hearing         be given to those appointed  as  Assistant  Teachers         did   not  grant  any  relief  in  terms  of  actual         appointment in pursuance to the appointment letters,         Nor did the Court order for any  pecuniary  benefits         being  given  to  those  appellants  pursuant to the         appointment letters.  Salary, etc.  were ordered  to         be paid only in case any one of those candidates had         actually joined and worked." 12.The  Court  held  that  till  the  order  of extension  of  service could become operative no right under the order had vested in the incumbent and it was  therefore, not  necessary  to  grant  him  hearing before the extension order was cancelled. The Court also  pointed  out  that  the respondent  therein  may  or may not have accepted the offer and till the order came into force, no  vested  right  could have   arisen.   Consequently,   the   Court  held  that  no opportunity was required to be given to the incumbent before cancelling the said order. The principles laid down  in  the aforesaid two cases will certainly apply in the present case and  in  our  opinion,  there was no necessity for giving an opportunity to the appellant before  the  chancellor  passed the  order  dated 21.8.97 rescinding the earlier order dated 20.8.97. 13.Turning to the second aspect of the  matter, the  contention of learned counsel for the appellant is that the order casts a stigma and therefore,  the  principles  of natural  justice  should  have been satisfied. We are of the opinion that there is  no  merit  in  this  contention.  The relevant  part of the order cancelling the appointment reads thus:         "Whereas under the above circumstances, I do         not find it desirable to appoint Dr.  J  Shashidhara         Prasad as the Vice Chancellor." It  is  entirely  different  from  saying  that  the appellant  was  an undesirable person and that he should not be appointed. But what the  order meant  was  only  that  in view  of  the  facts stated earlier in that order it was not desirable on the part of  the  Chancellor  to  appoint  this particular  person.  It  does  not, in our opinion, cast any stigma on the appellant. If in future any vacancy arises and an occasion arises  for  the  selection  panel  to  consider different  names  to  the  post, nothing prevents that panel from considering the name of the appellant also. 14.Learned  counsel for the appellant cited the judgment in Jagdish Mitter vs.   Union  of  India  AIR  1964 Supreme Court  449 in support of his contention.  It is seen that the facts of that case are entirely  different  and  in the view which have expressed on the facts of this case.  It is not necessary to consider the said ruling. 15.Learned   counsel  placed  reliance  on  the decision in Dr. Bool Chand vs. the  chancellor,  Kurukshetra

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University  1968  (1)  SCR  434  and  drew  our attention to certain passages in that judgment but we find  that  on  the facts  of that case, it was held that sufficient opportunity had been given to the person  aggrieved  and  the  order  of termination was upheld. The ruling will not have any bearing in the present case. 16.   Learned  counsel  invited our attention to the Judgment in D.  Subba Rao vs.  The State of  Andhra  Pradesh AIR 1975  SC  94.    The  Division Bench in that case, while quashing the removal of the President of  Panchayat  Samithi on the ground that he was denied an opportunity to be heard, directed  the  concerned authority to give an opportunity to him to make his representation against the charges  set  out in  the  notice  and  till an order was passed, the position which was then obtained was to be maintained  provisionally. The  facts  of  the case are entirely different and will not help the appellant herein. 17.   The  next decision referred to is the judgment in C L Kapoor vs.    Jagmohan  &  Ors.    (1981)1  SCR  746. Reliance   was  placed  on  the  following  passage  in  the judgment:         "In  our  view  the  principles  of  natural         justice  know  of  no exclusionary rule dependent on         whether it would have made any difference if natural         justice had been  observed.  The  non-observance  of         natural  justice  is itself prejudice to any man and         proof of prejudice independently of proof of  denial         of natural justice is unnecessary. It will come from         a  person who has denied justice that the person who         has been denied justice is  not  prejudiced.  As  we         said  earlier  where on the admitted or indisputable         facts only one conclusion is possible and under  the         law  only  one penalty is permissible, the Court may         not issue its  writ  to  compel  the  observance  of         natural  justice, not because it is not necessary to         observe natural justice but because  Courts  do  not         issue futile writs." The  aforesaid  passage  itself shows that the Court will refuse to issue a writ which will be futile even  after there  had been failure to observe the principles of natural justice. On the  facts  of  the  present  case,  it  is  not disputed  that  the  chancellor  has  appointed  the  second respondent  as  Vice   chancellor   after   cancelling   the appointment  of  the appellant. It is also not disputed that the criminal case was pending against the appellant  on  the date on which the order of cancellation of the appellant was made. 18.   As  we  have  come  to the conclusion that the order passed on August 21, 1997 rescinding the earlier order of appointment is valid, we do not find any merit  in  these appeals and  the same are accordingly dismissed.  There will be no order as to costs.