# Committee of Management Hindu College Moradabad & Anr v. Mahatma Jyotiba Phule Rohilkhand University, Bareilly & Ors

- **Citation:** (2024) 3 ILRA 710
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-08
- **Case number:** Writ A No. 20031 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/committee-of-management-hindu-college-moradabad-anr-v-mahatma-jyotiba-phule-51633
- **Pages:** 24

## Headnote

Service Law - Disciplinary Proceedings -
Authority of Committee of Management - Dr.
Sudha Garg, an Associate Professor appointed
on the recommendation of the Higher Education
Service Commission, challenged the Committee
of Management's authority to initiate disciplinary
proceedings,
arguing
that
only
the
St.
Government through the Director of Higher
Education could do so - Held, under Statutes
14.03, 14.04, and 14.07 of the First Statute of
Mahatma Jyotiba Phule Rohilkhand University,
read with Section 31(1) of the U.P. St.
Universities Act, 1973, the Committee of
Management is the appointing and disciplinary
authority for teachers in affiliated colleges,
subject to Vice Chancellor's approval - The U.P.
Higher Education Service Commission Act, 1980,
governs
only
the
selection
process,
not
disciplinary matters, and its overriding effect
under Section 30 does not extend to disciplinary
proceedings, which remain under the University
Act and Statutes. (Paras 12(a), 23, 25, 32, 34,
35, 41, 42)

Service Law - Principles of Natural Justice
in Disciplinary Enquiry - Dr. Garg challenged
the
enquiry
process,
alleging
denial
of
opportunity to cross-examine witnesses and
access documents - Held, the enquiry report
dated 30.07.2019 was vitiated due to procedural
lapses, including failure to supply copies of
witness St.ments and affidavits, denial of crossexamination
opportunities,
and
lack
of
discussion on Dr. Garg's documentary evidence
and replies - The enquiry committee's findings
were not supported by adequate evidence,
3 All. Committee of Management Hindu College Moradabad & Anr. Vs. Mahatma Jyotiba
 Phule Rohilkhand University, Bareilly & Ors.
711
particularly on charges related to delaying
practical examinations and closing optional
subjects, violating principles of natural justice as
per Kumaon Mandal Vikas Nigam Ltd. and
Salahuddin Ansari - The enquiry was deemed a
farce, justifying its quashing. (Paras 12(b), 44,
47, 48, 49, 50, 51, 52, 54, 55, 59)

Service Law - Vice Chancellor's Role and
Findings - The Committee of Management
challenged the Vice Chancellor's order dated
04.10.2023, which reinSt.d Dr. Garg despite
sustaining
charges
1
and
6,
arguing
inconsistency - Held, the Vice Chancellor, under
Statute 14.06(3), has the authority to review
the enquiry process and findings for approval of
punishment but erred in reinstating Dr. Garg
while sustaining charges, as this contradicted
the finding that no charges were proved - Given
the enquiry's procedural flaws, the appropriate
course was to remit the matter for a fresh
enquiry rather than reinSt.
- The Vice
Chancellor's order and the enquiry report were
quashed, with directions for a fresh enquiry.
(Paras 12(c), 60, 61, 64, 65, 67, 68)
Writ Petitions Disposed Of .

Enquiry Report and Vice Chancellor's Order
Quashed - Directions Issued for Fresh Enquiry.

List of Cases Cited :

## Text

_Characters 0–39,943 of 82,535. This is a partial read: ask again with offset=39943 for what follows._

710 INDIAN LAW REPORTS ALLAHABAD SERIES
in Rule 5 must be construed with the post
held by the deceased employee and not by
the higher qualification held by the
dependent. View of the Apex Court is that
compassionate appointment shall not be
given upon a higher post than the post held
by the deceased employee. Therefore, as on
date, law of land is that legal heir cannot be
given
appointment
on
compassionate
ground to a post higher than the post held
by the deceased employee.

18. Now coming to the present case.
Undisputedly father of petitioner was
working on the Class-IV post and after his
death, he has been offered employment on
the post of Class-IV, which was refused by
him on the ground that he is having
qualification for the post of Class-III.
Therefore, in light of interpretation of Rule
5 of Rules 1974 made by the Apex Court as
well as this Court, petitioner is not entitled
for the post of Class-III on compassionate
ground.

19. Accordingly, the writ petition
lacks merit and is dismissed. No order as to
costs.

20. However, this order does not
preclude the petitioner to file application
for appointment on Class-IV post. In case
any such application is filed by petitioner,
same shall be considered and decided in
accordance with Rules, 1974 as well as law
laid down by this Court.
----------
(2024) 3 ILRA 710
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.02.2024
BEFORE
THE HON'BLE AJIT KUMAR, J.

Writ A No. 20031 of 2023
Connected with
Writ A No. 18909 of 2023

Committee of Management Hindu College
Moradabad & Anr. ...Petitioners
Versus
Mahatma
Jyotiba
Phule
Rohilkhand
University, Bareilly & Ors. ...Respondents

Counsel for the Petitioners:
Sri Indra Raj Singh, Sri Adarsh Singh, Sri
Pramod Kumar Singh

Counsel for the Respondents:
C.S.C., In Person, Sri Rohit Pandey

Service Law - Disciplinary Proceedings -
Authority of Committee of Management - Dr.
Sudha Garg, an Associate Professor appointed
on the recommendation of the Higher Education
Service Commission, challenged the Committee
of Management's authority to initiate disciplinary
proceedings,
arguing
that
only
the
St.
Government through the Director of Higher
Education could do so - Held, under Statutes
14.03, 14.04, and 14.07 of the First Statute of
Mahatma Jyotiba Phule Rohilkhand University,
read with Section 31(1) of the U.P. St.
Universities Act, 1973, the Committee of
Management is the appointing and disciplinary
authority for teachers in affiliated colleges,
subject to Vice Chancellor's approval - The U.P.
Higher Education Service Commission Act, 1980,
governs
only
the
selection
process,
not
disciplinary matters, and its overriding effect
under Section 30 does not extend to disciplinary
proceedings, which remain under the University
Act and Statutes. (Paras 12(a), 23, 25, 32, 34,
35, 41, 42)

Service Law - Principles of Natural Justice
in Disciplinary Enquiry - Dr. Garg challenged
the
enquiry
process,
alleging
denial
of
opportunity to cross-examine witnesses and
access documents - Held, the enquiry report
dated 30.07.2019 was vitiated due to procedural
lapses, including failure to supply copies of
witness St.ments and affidavits, denial of crossexamination
opportunities,
and
lack
of
discussion on Dr. Garg's documentary evidence
and replies - The enquiry committee's findings
were not supported by adequate evidence,
3 All. Committee of Management Hindu College Moradabad & Anr. Vs. Mahatma Jyotiba
 Phule Rohilkhand University, Bareilly & Ors.
711
particularly on charges related to delaying
practical examinations and closing optional
subjects, violating principles of natural justice as
per Kumaon Mandal Vikas Nigam Ltd. and
Salahuddin Ansari - The enquiry was deemed a
farce, justifying its quashing. (Paras 12(b), 44,
47, 48, 49, 50, 51, 52, 54, 55, 59)

Service Law - Vice Chancellor's Role and
Findings - The Committee of Management
challenged the Vice Chancellor's order dated
04.10.2023, which reinSt.d Dr. Garg despite
sustaining
charges
1
and
6,
arguing
inconsistency - Held, the Vice Chancellor, under
Statute 14.06(3), has the authority to review
the enquiry process and findings for approval of
punishment but erred in reinstating Dr. Garg
while sustaining charges, as this contradicted
the finding that no charges were proved - Given
the enquiry's procedural flaws, the appropriate
course was to remit the matter for a fresh
enquiry rather than reinSt.
- The Vice
Chancellor's order and the enquiry report were
quashed, with directions for a fresh enquiry.
(Paras 12(c), 60, 61, 64, 65, 67, 68)
Writ Petitions Disposed Of .

Enquiry Report and Vice Chancellor's Order
Quashed - Directions Issued for Fresh Enquiry.

List of Cases Cited :
1. P.VS Srinivasa Sastry Vs Comptroller and
Auditor General , (1993) 1 SCC 419

2. Jai Jai Ram Vs U.P. St. Road Transport
Corporation , (1996) 4 SCC 727

3. Kumaon Mandal Vikas Nigam Ltd. Vs Girja
Shankar Pant & ors. , (2001) 1 SCC 182

4. Salahuddin Ansari Vs St. of U.P. & ors. , 2008
(3) ESC 1667 (All)

5.
Subhash
Chandra
Sharma
Vs
U.P.
Cooperative Spinning Mills & ors. , 2001 (2)
UPLBEC 1475

6. St. of U.P. & anr. Vs T.P. Lal Srivastava ,
1997 (1) LLJ 831

7. U.O.I. & ors. Vs Subrata Nath , (Supreme
Court, recent judgment)
8. Air India Corp. Vs VSA. Rebellow , (case
followed in Divisional Controller, Karnataka St.
Road Transport Corporation Vs M.G. Vittal Rao )

9. Francis Klein & Co. (P) Ltd. Vs Workmen ,
(case
followed
in

Divisional
Controller,
Karnataka St. Road Transport Corporation Vs
M.G. Vittal Rao )

10. BHEL Vs M. Chandrasekhar Reddy , (case
followed in Divisional Controller, Karnataka St.
Road Transport Corporation Vs M.G. Vittal Rao )

11. Divisional Controller, Karnataka St. Road
Transport Corporation Vs M.G. Vittal Rao ,
(2012) 1 SCC 442

12. Managing Director ECIL, Hyderabad Vs B.
Karunakar , (1993) 4 SCC 727

13. Committee of Management, Muslim Inter
College & anr.Vs St. of U.P. & ors. , 2023 (1)
ADJ 308 (DB)

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Indra Raj Singh, learned
counsel for the petitioner in the present
petition and as counsel for the respondent
Committee of Management in connected
Writ Petition being Writ A No. 18909 of
2023 as well and Sri Rohit Pandey, learned
Advocate appearing for the University in
both the matters and Dr. Sudha Garg, who
has personally appeared being respondent
no. 3 in present petition and being
petitioner in connected Writ Petition being
Writ A No. 18909 of 2023.

2. Writ A No. 20031 of 2023 has been
filed by the Committee of Management of
Hindu College Morabadabd whereas Writ
Petition No. 18909 of 2023 has been filed
by Dr. Garg, Associate Professor and Head
of Departmental of Zoology at Hindu
College Moradabad.

3. Dr. Garg is a caveator in Writ A No.
20031 of 2023 and pleadings have been
712 INDIAN LAW REPORTS ALLAHABAD SERIES
exchanged between the contesting parties
including
University.
Both
the
writ
petitions are directed against the order of
Vice Chancellor dated 4.10.2023, and
therefore, are being heard and decided
together taking writ petition 20031 of 2023
as a leading petition.

4. Briefly stated facts of the case are
that Dr. Garg, namely third respondent was
placed under suspension by the Committee
of Management of the institution vide order
dated 18.2.2019 and the same day she was
served with a chargesheet containing as
many as eight charges. Dr. Garg right from
the beginning has been questioning the
authority of the Committee of Management
to hold enquiry against her not only for the
reason that charges were ill founded but
also that Committee of Management was
not entitled to hold any enquiry for she
being appointed upon recommendation of
Director of Higher Education. According to
her, therefore, any enquiry could have been
conducted only at the instance of State
Government through Director of Higher
Education. Dr. Garg submitted her reply to
the charge sheet on 10.4.2019 denying all
eight charges, but the enquiry committee
after holding enquiry into the charges,
returned findings to the effect that all the
charges against Dr. Garg stood proved vide
its report dated 30th July,2019. Dr. Garg
was served with a show cause notice
alongwith enquiry report on 3rd August,
2019 to which she submitted her reply on
14th August, 2019. The Committee of
Management after having deliberations
upon reply submitted by Dr. Garg found it
appropriate to inflict upon her major
penalty of dismissal/ termination from
service by adopting resolution to this effect
on 27th August, 2019, the same stood
forwarded to the Vice Chancellor Mahatma
Jyotiba Phule Rohilkhand University for its
approval. The Vice Chancellor passed an
order dated 25th August, 2022, which came
to be challenged before this Court by
Committee of Management as well as Dr.
Garg vide Writ A No. 14616 of 2022 and
19389 of 2022 respectively. The order was
set aside by this Court under its detailed
judgment and order dated 17th July, 2023
and directions got issued to the Vice
Chancellor to take decision afresh after
giving personal hearing to the parties on a
fixed date i.e. 11.8.2023. Dr. Garg was also
directed to be paid subsistence allowance
since her status as was during pendency of
the
disciplinary
proceeding,
was
maintained as such and joining and
payment of regular salary was held to be
subject to the fresh decision by Committee
of Management and the Vice Chancellor.
Dr. Garg claimed to have appeared before
Vice Chancellor with detailed reply afresh
filed by her before Vice Chancellor on
5.8.2023. The Vice Chancellor proceeded
to hear the matter on merits afresh and after
hearing rival parties a passed final order on
4.10.2023 holding that Dr. Garg having not
been found guilty of any of charges,
approval could not be granted to the
termination of her service as proposed by
the Committee of Management and since
determination of point nos. 2,3 and 4 have
been made in her favour, Dr. Garg was held
entitled
to
reinstatement
with
all
consequential benefits. It is this above
order that has been challenged by the
Committee of Management as well as Dr.
Garg in their respective writ petitions.

5. One of the arguments advanced by
Ms. Sudha Garg appearing in present
petition
was
that
she
having
been
recommended for appointment by Higher
Education
Service
Commission
for
appointment in the institution in question,
the Committee of Management may be a de
3 All. Committee of Management Hindu College Moradabad & Anr. Vs. Mahatma Jyotiba
 Phule Rohilkhand University, Bareilly & Ors.
713
jure appointing authority for the purpose of
giving appointment and joining to the
petitioner but de facto power lies with the
State to make recommendations. It is in this
context she submitted that in view of
Statute No. 14.05 of the First Statute of the
University, there was no contract of
employment as such stricto Sensu between
her and the Committee of Management to
attract provisions contained under the
statute nos. 14.06 and 14.07- A .

6. She further submitted that
chargesheet
issued
by
the
Manager/Secretary of the Committee of
Management of the institution who was not
competent to either hold enquiry or issue
chargesheet.

7. The argument advanced by Dr.
Garg appearing in person, was that she
performed her duties honestly and to the
best of her ability, knowledge and skill and
her integrity was also certified as teacher
and head of department but on account of
lack of proper infrastructural facilities to be
provided by the management, she felt
compelled to suggest the students not to go
for optional subjects of cytology or
Entomology. She claimed to have had
never
any
grudge
against
either
management or colleagues but of course
had the one against the system. She always
tried to give best eduction to the students.
She submitted her reply in detailed on
10.04.2019 to the charge-sheet served upon
her
on
18.2.2019,
which
was
not
considered by the enquiry officer and
chages were not proved by evidence and
the enquiry was also vitiated for want of
reasonable opportunity of hearing. She had,
as claimed, even demanded number of
documents which were filed on behalf of
the management in support of the charges
that were led before the enquiry committee
but neither any information in relation to all
those documents was furnished, nor the
documents demanded were supplied to her.
She submitted that even copy of enquiry
report was never supplied to her. It was
further submitted that in respect of those
witnesses who were examined, petitioner
was not permitted to even cross examine
them and claimed it to be fully reflected
from the enquiry report that no date was
fixed to cross examine and thus findings
that were returned, were all ex parte. She
further submitted that vice chancellor was
justified in holding that enquiry was not
held as per procedure prescribed and in the
matter of oral enquiry for the purposes of
inflicting a major penalty it was necessary
for the enquiry committee to have fixed
specific dates to permit cross examination
of the witnesses that were produced by the
management in support of the charges
inasmuch students who had appeared with
their respective Ids.

8. It was also argued that in the matter
of departmental proceedings when the
enquiry was to be conducted and charges to
be framed as such that may invite major
penalty, it was always to be looked into as
to what kind of intrinsic material had been
placed before the enquiry committee
against the delinquent employee. It was
further submitted that in support of basic
charge that petitioner proceeded to close
down the department to force students not
to opt for optional subjects, there was not
supportive material worth evidenciary
value. It was further submitted that at no
point of time any such material was placed
even before the enquiry officer which could
have proved that notice in question was got
published by the petitioner. She further
submitted that in the matter of departmental
enquiry, she led evidence and was always
trying her level best to rebut the allegations
714 INDIAN LAW REPORTS ALLAHABAD SERIES
and material evidence led in respect of the
charge-sheet but enquiry committee failed
to discuss all these details that were there in
her reply and as such no finding has come
to be returned in the finding part of the
enquiry report that petitioner failed to hold
examination as per instructions issued by
the University. She also argued that those
who came to be examined by submitting
their written submissions before Enquiry
Committee, were not permitted to be cross
examined. If there were certain crucial
witnesses in so far as running of the
department and academic activities in
department were concerned, petitioner was
required to be given an opportunity to cross
examine
but
being
not
given
any
opportunity, she submitted that entire
departmental enquiry was biased and so
report could not be sustained so as to
maintain the order of dismissal/ termination
from service. She also submitted that Vice
Chancellor had not been justified in
sustaining charge no. 1 and 6 inasmuch as
her entire reply had not been considered by
the
Vice
Chancellor
in
its
correct
perspective. She submitted that reply
submitted by her before Vice Chancellor
after matter was remitted by this Court in
the first round of litigation and yet points
raised in reply as point nos, 2.6, 2.7 and no.
2.8 have not been considered at all. She
submitted that Vice Chancellor was also not
justified in affirming the findings of
enquiry report and sustaining the charge
nos. 1 and 6.

9. Sri Rohit Pandey on the contrary
has argued that Vice Chancellor was
justified in passing order impugned,
inasmuch as Vice Chancellor was well
within his right to examine as to whether
departmental enquiry was properly held
and findings returned were proper or not
and whether principles of natural justice
were followed or not in the matter of
holding of the departmental enquiry and
disciplinary proceedings. He has taken the
Court to the Statute 14.04 and 14.07 under
which Vice Chancellor was well within his
duty and power to examine all these aspects
of the matter and cannot be faulted with for
findings so returned in the order impugned.
He, however, disputed the authority of the
Vice Chancellor to interfere with the order
of punishment and as an appellate authority
and so it was appropriate to permit
employer/
disciplinary
authority
to
reconsider the imposition of punishment of
a lessor degree.

10. Sri I.R. Singh, learned counsel for
the petitioner submitted that in Writ
Petition No. 20031 of 2023 Committee of
Management has assailed the order of Vice
Chancellor on three grounds: firstly on the
ground
that
Vice
Chancellor
while
sustaining charge no. 1 to 6, was not
justified in finally returning a finding that
none of charges was proved against
delinquent employee, and therefore, she
deserved reinstatement with salary. Second
argument was that as per Statute 14.03 read
with 14.04, where charge was proved
against delinquent employee, Management
was entitled to dismiss such employee from
employment. He took the Court to relevant
statutes for this purpose and also appendix
B in which, according to him, point nos. 1
and 5 were established for misconduct
upon which findings had come to be
returned in the enquiry report, and
therefore, Committee of Management was
fully justified in dismissing the petitioner
from service; and third, Vice Chancellor
was
not
justified
in
holding
that
punishment was disproportionate in any
manner to the charges proved .

11. Mr. Singh submitted, once
integrity was held to be doubtful or
3 All. Committee of Management Hindu College Moradabad & Anr. Vs. Mahatma Jyotiba
 Phule Rohilkhand University, Bareilly & Ors.
715
otherwise not worth certification by the
employer, such an employee could always
be dismissed from employment. He has
argued that manner and method in which
department was being run as had borne out
from
the
departmental
enquiry,
the
Committee of Management had no other
option but to dismiss her from service. He
submitted that charge of closing branches
in respect of optional subjects like cytology
or Entomology was serious one. He
submitted that Dr. Garg ought to have
contacted the employer for this purpose and
better solution could have been obtained,
instead of pasting any notice or forcing
students as per findings returned in the
enquiry report, not to go for these two
optional subjects. He further submitted that
Statute
31
prescribed
Committee
of
Management to be appointing authority and
Section 60-d authorized management to
forward bills for the purposes of payment
of salary and so it was a disciplinary
authority.

12. Having heard learned counsel for
the respective parties and Dr. Garg who
appeared in person and having noticed the
arguments so advanced and having perused
the records, I find three points to be
emerging in the present petition:

(a)
Whether
a
recognized
Committee
of
Management
of
recognized/affiliated degree College of
University is empowered to institute
disciplinary
proceedings
and
hold
departmental enquiry against teachers of
the
college
who
are
appointed
on
recommendations of the Higher Education
Service Commission;

(b) Whether the departmental
enquiry held by the enquiry committee and
consequential
decision
taken
by
the
disciplinary authority has been as per
procedure prescribed for and principles laid
down in various authorities of the Supreme
Court
and
this
Court
that
govern
departmental enquiries; and

(c) Whether Vice Chancellor is
justified in holding that no charges have
been proved to entitle Dr. Sudha Garg
reinstatement even while sustaining charge
no. 1 and 6 as per his own findings.

13. Taking the first point '(a)' I
proceed to examine relevant provision of
first statute of the University of Rohilkhand
to which institution in question is affiliated
to.

14. The first statute of the University
is framed under U.P. State Universities Act,
1973 and provisions contained therein deal
with teachers and employees of the
University, their service conditions and
administrative powers of the Chancellor,
Vice Chancellor, Registrar, Dean of faculty,
Dean of the Students Welfare, Head of
Department, Laboratory, Proctor, the Court
and also these powers in relation to the
affiliated colleges that impart higher
education to students.

15. Chapter II of the first statute
starting with Statute No. 11.01 deals with
affiliated colleges and Statute No. 11.05
provides for constitution of management of
every college and its recognition and
approval by the Vice Chancellor. Chapter
XIV-A deals with conditions of service of
teachers of the University and provides
vide Clause 14.02-A that teacher shall be
maintaining absolute integrity and further
provides vide 14.03-A that any breach of
provision of the Code of Professional
Ethics mentioned in Statute 14.04 and code
of conduct as set out in Appendix-C shall
be deemed to be misconduct and then
14.04-A provides for removal/dismissal/
716 INDIAN LAW REPORTS ALLAHABAD SERIES
termination of a University teacher on any
of the grounds mentioned therein. Statute
14.07-A (a) provides for suspension of
teacher
during
pendency
and/or
in
contemplation of enquiry into charges
against him/her on the grounds mentioned
in Sub-clause (a) to (e) of the Clause (1) of
the Statute 14.04. The provisions as
contained in Statute 14.02-A, 14.03-A,
14.04-A and 14.07-A are reproduced
hereunder:

"14.02-A
A
teacher
of
the
University shall at all times maintain
absolute integrity and devotion to duty and
shall observe the Code of Conduct
professional ethics mentioned in Statute
14.34 and the code of conduct as set out in
Appendix 'C, which shall form part of the
agreement to be signed by the teacher at
the time of appointment. (Section 49) (d)

14.03-A- A breach of any of the
provisions of the Code of Professional
ethics mentioned in statute 14.34 and code
of conduct as set out in Appendix 'C' shall
be deemed to be a misconduct within the
meaning of Statute 14.04-A(1). (Section 49)
(d)

14.04A- (1) A teacher of the
University may be dismissed or removed or
his services terminated on one or more of
the following grounds:

(a) willful neglect of duty;

(b) misconduct,

(c) breach of any of the terms of
contract of service;

(d) dishonesty connected with the
University examinations;

(e)
scandalous
conduct
or
conviction for an offence involving moral
turpitude;

(f) physical or mental unfitness;

(g) incompetence;

(h) abolition of the post.

(2) Except as provided by Section
31(2), not less than three months notice (or
where notice is given after the month of
October, then three months' notice or notice
ending with the close of the session
whichever is longer) shall be given on
either side for terminating the contract of
service or in lieu of such notice, salary for
three months (or such longer period as
aforesaid) shall be paid or refunded, as the
case may be:

Provided
that
where
the
University
dismisses
or
removes
or
terminates the services of a teacher, under
clause (1) or when the teacher terminates
the contract for breach of any of its terms
by the University, no such notice shall be
necessary:

Provided further that the parties
will be free to waive the condition of notice,
in whole or in part by mutual agreement.

14.07-A(1)
The
disciplinary
committee referred to in statute 8.01 may
recommend the suspension of a teacher
during the pendency or in contemplation of
an inquiry into charges against him/here,
on the ground mentioned in sub-clause (a)
to (e) of Clause (1) of Statute 14.04. The
order of suspension, if in operation on the
expiry of four weeks unless the teacher has
in the mean time been communicated the
charges
on
which
the
inquiry
was
contemplated.

(2) A teacher of University shall
be deemed to have been placed under
suspension-

(a) with effect from the date of his
conviction, if in the event of a conviction
for an offence, he is sentenced to a term of
imprisonment exceeding 48 hours and is
not forth with dismissed or removed
consequent to such conviction;

(b) In any other case, for the
duration of his detention, if he is detained
3 All. Committee of Management Hindu College Moradabad & Anr. Vs. Mahatma Jyotiba
 Phule Rohilkhand University, Bareilly & Ors.
717
in custody, whether the detention is for any
criminal charge or otherwise."

16. Thus above provisions are
corresponding
to
the
provisions
as
contained Section 49(d) and Section
21(1)(xvii) of the State Universities Act,
1973.

17. Similarly Chapter XV Part-1 of
the first statute deals with the conditions of
service of teachers of colleges. The
provisions as contained in Statute 14.03(1),
14.04(1) and 14.07 are pari materia to the
aforesaid quoted provisions. Accordingly,
for ready reference and better appreciation,
statute
14.03,
14.04
and
14.07
are
reproduced hereunder:

"14.02. Except in the case of an
appointment under Section 31(3) in a
vacancy caused by the grant of leave to a
teacher for a period not exceeding 10
months, teachers of an affiliated college
shall be appointed on a written contract in
form (1) or form (2) set out in Appendix 'C'
as the case may be. (Section 49) (o)

14.03. (1) A teacher of the a
College shall at all times maintain absolute
integrity and devotion to duty and shall
observe the Code of Professional Ethics
mentioned in statute 14.34-A and Code of
Conduct as set out in Appendix C, which
shall form part of the agreement to be
signed by the teacher at the time of
appointment.

(2) A breach of any of the
provisions of the Code of Professional
Ethics mentioned in statute 14.34-A and
Code of Conduct as set out in Appendix C
shall be deemed to be misconduct within
the meaning of Statute 14.04 (1). (Section
49) (o)

14.04(1) teacher of an affiliated
college (other than a Principal) may be
dismissed or removed or his services
terminated on one or more of the following
grounds:-

(a) willful neglect of duty;

(b)
misconduct,
including
disobedience to the order of the Principal;

(c) breach of any of the terms of
contract of service;

(d) dishonesty connected with the
University or College examinations;

(e)
scandalous
conduct
or
conviction for an offence involving moral
turpitude;

(f) physical or mental unfitness;

(g) incompetence;

(h) abolition of the post

(2) A principal of an affiliated
college may be dismissed or removed, or
his
services
terminated
on
grounds
mentioned in clause (1) or on the ground of
continuous mismanagement of the college.

(3) Except as provided by clause
(4), not less than three months' notice (or
where notice is given after the month of
October, then three months' notice or notice
ending with the close of the session
whichever is longer)shall be given on
either side for terminating the contract of
service or in lieu of such notice, salary for
three
months
(or
longer
period
as
aforesaid) shall be paid or refunded, as the
case may be:

Provided
that
where
the
Management dismisses or removes or
terminates the services of a teacher, under
clause (1) or clause (2) or when the teacher
terminates the contract for breach of any of
its terms by the Management, no such
notice shall be necessary:

Provided further that the parties
will be free to waive the condition of notice,
in whole or in part by mutual agreement.

(4) In the case of any other
teacher appointed in a temporary or
officiating capacity services shall be
718 INDIAN LAW REPORTS ALLAHABAD SERIES
terminable, by one month's notice or on
payment of salary in lieu thereof, on either
side.

14.07. The Management shall
have the power to suspend a teacher
during the pendency or in contemplation
of an inquiry into charge against him, on
the grounds mentioned in subclass (a) to
(e) of clauses (1) of Statute 14.04. In an
emergency, (in the case of teacher other
than principal) this power may be
exercised by the principal in anticipation
of the approval of the Management. The
Principal shall immediately report such
case to the Management. The order of
suspension if passed in contemplation of
an inquiry shall cease at the end of four
weeks of its operation unless the teacher
has in the mean time being communicated
the charge of the charges on which the
inquiry was contemplated."
(emphasis added)

18. It is also important to refer to here
Clause 14.16 of Chapter IV of first statute,
which had been heavily relied upon by Dr.
Garg in support of her arguments. The
relevant provisions as contained under
Clause 14.16 is reproduced hereunder:

" The provisions of clauses (2) to
(4) of the Statute 14.07-A, 14.29-A to
14.34-A shall mutatis mutandis apply to
every teacher of a college with the
following modification, namely:-

(a) In clauses (2) to (4) of Statute
14.07-A, for the words "Vice Chancellor",
and "Executive Council", the words
"Management" and "Vice Chancellor"
shall respectively be substituted.

(b) In statute 14.29-A for the
words "Vice Chancellor", and Head of
Department", the words "Principal" and
the "Senior-most Assistant Professor in the
Department"
shall
respectively
be
substituted."

19. The provisions as noted above do
provide that provisions as contained under
Statute 14.07-A , 14.29-A and 14.34-A
shall mutatis mutandis apply to every
teacher of the college with modifications
that wherever Vice Chancellor and the
Executive Council have been referred to
will be Management and Vice Chancellor
in respect of the colleges in so far as 14.07A is concerned.

20. Sub-clause (b) is not of the
importance here for the purpose of
arguments advanced.

21. Now 14.07-A talks of Disciplinary
Committee referable to Statute 14.04-A (a)
to (e). Obviously it is power of suspension
vested with Vice Chancellor and power of
approval or dismissal from service vests
with Executive Council, and therefore, in
reference to an affiliated college, it will
obviously be Committee of Management
and for approval the Vice Chancellor. The
Statute
14.07
does
authorize
the
management to suspend a teacher during
pendency or in contemplation of the
enquiry. The said statute as prescribed
under Pat-1 of Chapter XIV is already
reproduced above

22. All these provisions as noted
above and being discussed are referable to
Section 49-(d) of the U.P. Universities Act,
1973 that provides for statutes and
ordinances to govern the matters relating to
University and its affiliated / associated
colleges. Section 49-(d) is reproduced
hereunder:

"[(d)
the
classification
and
recruitment
(including
minimum
3 All. Committee of Management Hindu College Moradabad & Anr. Vs. Mahatma Jyotiba
 Phule Rohilkhand University, Bareilly & Ors.
719
qualifications
and
experience)
of
Principals and other teachers of the
University and of affiliated and associated
colleges, the maintenance by them of their
annual academic progress report, the rules
of conduct to be observed by them and their
emoluments and other conditions of service
(including
provisions
relating
to
compulsory retirement);"

23. It is worth noticing here that
Section 31(1) does confer the power of
appointment
upon
Committee
of
Management qua teachers and employees
of the affiliated / associated colleges.
Section 31(1) for ready reference is
reproduced hereunder:

"31. - Appointment of Teachers-
(1) Subject to the provisions of this Act, the
teachers of the University and the teachers
of an affiliated or associated college (other
than a college maintained exclusively by
the State Government 2[* * *]) shall be
appointed by the Executive Council or the
Management of the affiliated or associated
college, as the case may be, on the
recommendation of a Selection Committee
in the manner hereinafter provided.[The
Selection Committee shall meet as often as
necessary.]"

24. Chapter XIV Part-1 itself
empowers the management to dismiss or
remove the services of the teachers subject
to approval of the Vice Chancellor. 14.06
and the same in its entirety is reproduced
hereunder:

"14.06 (1) No order dismissing,
removing or terminating the services of a
teacher on any ground mentioned in clause
(1) or clause(2) of Statute 14.04 (except in
the case of conviction for an offence
involving moral turpitude or of abolition of
post) shall be passed unless a charge has
been framed against the teacher and
communicated to him with a statement of
the grounds on which it is proposed to take
action and he has been given adequate
opportunity-

(i)
of
submitting
a
written
statement of his defense;

(ii) of being heard in person, if he
so desires; and

(iii) of calling and examining
such witnesses in his defense as he may
desire:

Provided that the Management or
the officer authorized by it on conduct the
inquiry may, for sufficient reasons to be
recorded in writing refuse to call any
witness.

(2) The Management may, at
any time, ordinary within two months
from the date of the inquiry Officer's
report pass a resolution dismissing or
removing the teacher concerned from
service,
or
terminating
his
services
mentioning the grounds of such dismissal,
removal or termination.

(3)
The
resolution
shall
forthwith be communicated to the teacher
concerned and also be reported to the
Vice-Chancellor for approval and shall
not be operative unless so approved by

the Vice Chancellor.

(4) The Management may, instead
of dismissing, removing or terminating the
service of the teacher, pass a resolution
inflicting one or more of the following
lesser punishments namely-

(i) Reduction of pay for a
specified period

(ii)
Stoppage
of
annual
increments
for
specified
period
not
exceeding three years

(iii) Deprivation of his pay not
including subsistence allowance during a
period of his suspension, if any.
720 INDIAN LAW REPORTS ALLAHABAD SERIES

The
resolution
by
the
management inflicting such punishment
shall be reported by the Vice-Chancellor
and shall be operative on when and to the
extent, approved by the Vice- Chancellor."

(emphasis added)

25. Upon bare reading of the
aforesaid provisions one can easily come to
conclude that Committee of Management
has been vested with power in the matters
of imposition of punishment and deduction
of pay of teachers subject to of course
approval of Vice Chancellor as per Statute
14.06(3) and 14.06(4).

26. Thus there is no question to refer
to any other provision so as to take out
inference that disciplinary committee as is
sought to be constituted under Statute 8.01,
is the only disciplinary committee which is
to be referred to for the purposes of holding
disciplinary proceedings against a teacher
of
an
affiliated
college
for
taking
disciplinary
actions.
The
Disciplinary
Committee that is referable to Statute 8.01
is in respect to the enquiry committee to be
constituted for the purposes of teachers and
employees of the University and not of its
affiliated colleges.

27. It is necessary here to deal with
argument raised by Dr. Sudha Garg that in
view of the Section 30 of the U.P. Higher
Education Service Commission Act, 1980,
this new Act shall have overriding effect
and shall prevail over and above contrary
provisions contained under the U.P. State
Universities Act, 1973, the first statutes and
ordinances framed thereunder as well.

28. I have examined aims and object
of
the
Higher
Education
Service
Commission Act and find that the Act had
been enacted by U.P. legislature to
constitute a Service Commission for
selection of teachers to be appointed in the
affiliated and/or recognized colleges of the
University. So basic object is to hold
selection for appointment of teachers.
Section 12 of the Act that came into force
on 22nd November, 1991 as substituted by
amending Act No. 2 of 1992, provides that
every appointment as teacher of any
college shall be made by management but
in accordance with the provisions of the
Act. Section 12 of the Commission Act is
reproduced hereunder:

12. Procedure for appointment
of teachers- (1) Every appointment as a
teacher of any college shall be made by
the management in accordance with the
provisions
of
this
Act
and
every
appointment
made
in
contravention
thereof shall be void.

"Provided
that
a
permanent
teacher of an ffiliated or associated
college, who has been appointed in
accordance with the provisions of this Act
and has completed (five years') service as
such and who wishes to be transferred to
any other college, may be transferred in the
manner prescribed by rules from one
college to another, only when the respective
management of the colleges concerned give
their consents in writing."

(1-a) Notwithstanding any decree
or order of a court, a teacher who has been
appointed as such by transfer from one
college to another in pursuance of the
Government Orders No. 429 Shiksha
Mantri/Sattar-6-98-15-95, dated August 17,
1998
or
No.
393/Sattar-1-9915(6)-99,
dated October 28, 1999 shall be deemed to
have been validly appointed as if the
provisions of the principal Act as amended
by the Uttar Pradesh Higher Education
Services Commission (Second Amendment)
3 All. Committee of Management Hindu College Moradabad & Anr. Vs. Mahatma Jyotiba
 Phule Rohilkhand University, Bareilly & Ors.
721
Act, 2004 were in force at all material
times."

(2)
The
management
shall
intimate the existing vacancies and the
vacancies likely to be caused during the
course of the ensuing academic year, to
the Director at such time and in such
manner, as may be prescribed.

Explanation-
The
expression
"academic year" means the period of 12
months commencing on July 1.

(3) The Director shall notify to
the Commission at such time and in such
manner as may be prescribed a subject
wise
consolidated
list
of
vacancies
intimated to him from all colleges.

(4) The manner of selection of
persons for appointment to the posts of
teachers of a college shall be such, as may
be determined by regulations : Provided
that the Commission shall with a view to
inviting
talented
persons
give
wide
publicity in the State to the vacancies
notified to it under sub-section (3) :

Provided
further
that
the
candidates shall be required to indicate
their order of preference for the various
colleges, vacancies wherein have been
advertised.

29. From above quoted provisions, it
comes out that upon occurrence of vacancy,
the Manager would be intimating the same
to the Director of of Higher Education, who
in-turn would be notifying the same to the
Commission for holding selection for
appointment upon such vacancies. Subsection 4 provides for procedure to be
prescribed under the regulations to be
framed under the Commission Act. Section
13 of the Act provides for recommendation
of Commission qua selected candidates and
selection is by way of advertising the
vacancy, holding written examination and
interview and submitting the final select list
to the Director. The relevant provision of
Section 13 of the Higher Education Service
Commission Act is reproduced hereunder:

Recommendation
of
Commission 13. (1) The Commission shall,
as soon as possible, after the notification of
vacancies to it under sub-section (3) of
section 12, hold interview (with or without
written examination) of the candidates and
send to the Director a list recommending
such number of names of candidates found
most suitable in each subject as may be, so
for as practicable, twenty-five per cent
more than the number of vacancies in that
subject such names shall be arranged in
order of merit shown in the interview, or in
the examination and interview if an
examination is held.

(2)
The
list
sent
by
the
Commission shall be valid till the receipt of
a new list from the Commission.

(3) The Director shall having due
regard in the prescribed manner, to the
order of preference if any indicated by the
candidates under the second proviso to
subsection.