Punjab-Haryana High Court
Amitava Choudhury And Anr vs Union Of India And Ors on 22 April, 2025
Neutral Citation No:=2025:PHHC:051142
CWP-1649-2019 AND CWP-7608-2022 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(I) CWP-1649-2019 (O&M)
Reserved on : 07.03.2025
Pronounced on : 22.04.2025
AMITAVA CHOUDHURY AND ANR -PETITIONERS
V/S
UNION OF INDIA AND ORS -RESPONDENTS
(II) CWP-7608-2022
DR. DHEERAJ SHARMA -PETITIONER
V/S
UNION OF INDIA AND ANR -RESPONDENTS
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. Parunjeet Singh, Advocate and
Mr. Rajat Chopra, Advocate
for the petitioners (in CWP-1649-2019).
Mr. Puneet Bali, Sr. Advocate with
Mr. Gagandeep Singh, Advocate and
Mr. Anmol Chandan, Advocate
for the petitioner (in CWP-7608-2022).
Mr. Satya Pal Jain, Addl. Solicitor General of India, with
Mr. Pankaj Gupta, Sr. Panel Counsel
for the respondent(s)-Union of India.
Mr. Udit Garg, Advocate and
Mr. Ritvik Garg, Advocate
for the respondent No.4 (in CWP-1649-2019).
Mr. Vivek Singla, Advocate and
Ms. Urvashi, Advocate
for the respondent No.5.
Mr. Bhupender Singh, D.A.G., Haryana.
***
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KULDEEP TIWARI, J. (ORAL)
1. The amenability of both these writ petitions for being decided
through a common verdict originates from them becoming engendered by a
common issue appertaining to the eligibility of Dr. Dheeraj Sharma
(petitioner in CWP-7608-2022) (hereinafter referred to as ‘Dr. Dheeraj
Sharma’) for being appointed as the Director of the Indian Institute of
Management, Rohtak (hereinafter referred to as the ‘I.I.M., Rohtak’).
2. To be precise, CWP-1649-2019 encloses the writ of quo
warranto against the appointment of Dr. Dheeraj Sharma as the Director
of the I.I.M., Rohtak and also assails the minutes of meeting dated
29.04.2016, office memorandums dated 16.11.2016 and 10.02.2017,
wherethrough, the name of Dr. Dheeraj Sharma was proposed for
directorship. On the other hand, CWP-7608-2022 encloses challenge to
the show cause notice (File No.22-06/2019-TS.V) dated 28.03.2022,
issued by the Ministry of Education, Department of Higher Education,
Management Bureau, whereby, Dr. Dheeraj Sharma has been asked to
show cause as to why necessary administrative and legal action should not
be taken against him for deliberate non submissions of Bachelor’s degree
certificates and misrepresentation of education qualifications for securing
appointment to the office in question.
3. Before this Court proceeds to gauge the legality of the
impugned appointment, it would be apt to record at the outset that, Dr.
Dheeraj Sharma had completed his first tenure of directorship on
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19.02.2022, whereupon, he has been re-appointed by the Board of
Governors, I.I.M., Rohtak, vide appointment letter dated 28.02.2022. The
second/re-appointment of Dr. Dheeraj Sharma is not under challenge
before this Court, as there is no dispute with regard to his eligibility for
the second tenure of directorship.
FACTUAL MATRIX
4. An advertisement was issued on 31.03.2015, wherethrough,
applications were invited for the post of Director, I.I.M., Rohtak, from
distinguished professionals and academic administrators having at least
15 years teaching/research experience in reputed institutions. Another
essential requirement for appointment was that, the applicants should
have outstanding academic credentials throughout, including a Ph.D
Degree from a reputed institution with First Class degree at Bachelor’s
and Master’s level.
5. The advertisement clearly spelt out that, the Director will be
appointed after obtaining approval of the Appointments Committee of
Cabinet (hereinafter referred to as the ‘A.C.C.’) based on the
recommendations made by a Search-cum-Selection Committee
(hereinafter referred to as the ‘S.C.S.C.’). The S.C.S.C was also
authorized to consider applications fulfilling the above criteria received in
response to the advertisement as well as nomination received from
eminent persons in the field of management/management education.
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6. In response to the advertisement, total 59 applicants applied
for the post of Director, including Dr. Dheeraj Sharma, who applied on
11.05.2015. Thereafter, the Government of India, Ministry of Human
Resource Development, Department of Higher Education (hereinafter
referred to as the ‘MHRD’), constituted the S.C.S.C. on 17.12.2015,
composition whereof is extracted hereinafter:-
1. Shri Madhav Chitale Chairman
Former Secretary to Government of India
2. Shri Vinay Sheel Oberoi Member (Nominee of MHRD)
Secretary (HE), MHRD
3. Shri Ravi Kant Member
Chairman, BoG, IIM Rohtak
4. Shri V.K. Saraswat Member
Former Director General, DRDO
5. Shri Anant Narayanan Member
Former Director NPOL, DRDO, Kochi
7. In its first meeting held on 22.02.2016, the S.C.S.C.
examined all the 59 applications vis-a-vis the following three broad
parameters:-
(a) Academic Qualifications
(b) Professional Experience
(c) Administrative Experience
8. After examining the qualifications prescribed in the
advertisement and the individual data of each of the candidates, 13
candidates, including Dr. Dheeraj Sharma, were shortlisted by the
S.C.S.C. for personal interview. Apart from these 13 candidates, one Prof.
Atanu Rakshit of I.I.M., Rohtak, and, one Prof. S. Bhargav from the
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Shailesh J. Mehta School of Management were also decided to be called
for interview, subject to them fulfilling the eligibility criteria., in its first
meeting, the S.C.S.C. specifically observed that, some of the candidates
have not mentioned their class/percentage of marks obtained in
Bachelor’s and Master’s degree examinations, as required in the
advertisement. Therefore, it was decided to call the relevant certificates
from all the 13 shortlisted candidates. It would be apt to record here that,
out of the two additional candidates, only Prof. Atanu Rakshit satisfied
the criteria and was called for interview, whereas, Prof. Bhargav did not
qualify the eligibility criteria of having first class at Bachelor’s and
Master’s level and was not invited for interview.
9. Thereafter, vide letter dated 31.03.2016, the MHRD,
purveyed specific information to Dr. Dheeraj Sharma that, since he has
not mentioned the class/division secured at his Bachelor’s and Master’s
level examination, and, since the requisite certificates have not been
furnished by him despite making request via e-mail dated 28.03.2016,
therefore, was requested to attend the personal discussion along with
original testimonials.
10. Dr. Dheeraj Sharma and other shortlisted candidates
appeared in the personal discussion, whereupon, the S.C.S.C. in its second
meeting held on 29.04.2016, after considering all the candidates and also
taking into account their respective resume and their performance during
personal discussion, unanimously recommended the following panel of
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candidates for appointment to the post of Director, I.I.M., Rohtak, in order
of merit.
(i) Dr. Bharat Bhasker
(ii) Dr. Dheeraj Sharma
(iii) Dr. B.S. Sahay
11. Since Dr. Bharat Bhasker, who acquired first position in the
recommended panel of candidates, was already recommended as Director
of I.I.M. Raipur, therefore, the Human Resource Development Minister
recommended the name of Dr. Dheeraj Sharma, who acquired second
position in the panel of candidates, for appointment as Director, I.I.M.,
Rohtak. Accordingly, the proposal for appointment of Dr. Dheeraj Sharma
as Director, I.I.M., Rohtak, was forwarded to the A.C.C. This proposal
was considered by the Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel and Training (hereinafter referred to
as the ‘DoPT’), who had to act as Nodal Agency for A.C.C. After
considering this proposal, the DoPT requested the MHRD to resubmit the
personal particulars proforma of Dr. Dheeraj Sharma duly certifying that
he meets the eligibility requirements for the post as on the crucial date of
eligibility. In response to this request, the MHRD, vide letter dated
07.12.2016, confirmed that he meets the eligibility requirements as on the
crucial date of eligibility. Finally, on 10.02.2017, the A.C.C. approved his
appointment to the post of Director, I.I.M., Rohtak, and, this approval was
conveyed to the Chairman, Board of Governors, I.I.M., Rohtak, on
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17.02.2017, with the request to issue offer of appointment. Accordingly,
the Chairman sought consent to appointment from Dr. Dheeraj Sharma on
20.02.2017, which was furnished by the latter.
12. Now, the precise issue racked up before this Court is as to
whether Dr. Dheeraj Sharma possessed the requisite qualifications and
experience, as prescribed in the advertisement, for being appointed as the
Director, I.I.M., Rohtak.
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
PETITIONERS (IN CWP-1649-2019)
13. The petitioner No.1 claims himself to be an eminent RTI
activist from West Bengal, and, the petitioner No.2 claims himself to be
an advocate practicing at Delhi High Court. On the basis of information
gathered by the petitioners and their allies, under the R.T.I. Act, the
learned counsel for the petitioners has made endeavour to throw challenge
to the appointment and has pitched the hereinafter enumerated
arguments:-
(a) Dr. Dheeraj Sharma deliberately did not furnish in his
CV any particulars of his Bachelor’s and Master’s degree,
whereas, the remaining two selected candidates furnished
complete details of their credentials. Moreover, he did not
furnish any proof of first class graduation degree, whereas,
the other candidates annexed the requisite certificates and
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degrees;
(b) Furthermore, he deliberately also did not furnish in
his CV the details of his 15 years of teaching. The crucial
eligibility that, he had experience of 09 years is missing
because the computation of 15 years teaching/research
experience will not include full time doctoral studentship and
industrial experience;
(c) The MBA degree (Annexure P-24 in CWP-1649-2019)
is forged and fabricated inasmuch as perusal thereof clearly
reflects that it was awarded to him on 31.12.1999 after
completing two years’ full time course in Dr. B.R. Ambedkar
University, Agra, whereas, the transcript appended with the
Degree of Doctor of Business Administration (Annexure P-23
in CWP-1649-2019) indicates that, he completed his B.Com
degree from the University of Delhi in 1998. Therefore, how
could Dr. Dheeraj Sharma, even before obtaining B.Com
degree, joined the MBA programme in 1997. Not only this,
the result of first three semesters of MBA course was
declared on 22.02.2001 and the result of fourth semester was
declared on 07.03.2001, i.e. more than a year after the
issuance of the MBA degree.
(d) As per the statement of marks appended with the
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MBA degree, Dr. Dheeraj Sharma appeared in fourth
semester MBA examination in May, 1999, however, in his
CV, he has declared that, from April, 1999, he was working
in the U.S.A. in the company namely Duncan Holdings.
(e) As per the Degree of Doctor of Business
Administration, Dr. Dheeraj Sharma attended full time
doctoral course in the U.S.A. between August, 2001 to
February, 2006, however, in his CV, he he has shown the
entire duration of full time doctoral study between 2001 to
February, 2006, under the heading of position held in last 15
years. Therefore, he lacked the requisite experience of 15
years for being appointed as Director of the I.I.M., Rohtak.
SUBMISSIONS OF THE LEARNED ADDITIONAL SOLICITOR
GENERAL OF INDIA, FOR THE RESPONDENT(S)-U.O.I.
14. Before proceeding to record the elaborate submissions of the
learned Additional Solicitor General, it would be significant to record at
the outset that, the stand taken by the Union of India in both these writ
petitions is diametrically opposite. In the writ of quo warranto, i.e. CWP-
1649-2019, initially the respondent(s)-Union of India filed a reply in
support of Dr. Dheeraj Sharma by taking the stand that, due procedure
was followed in appointment. However, during pendency of the lis
(supra), he was served the impugned show cause notice dated 28.03.2022,
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thereby asking him to show cause as to why administrative and legal
action should not be taken against him for deliberate non submissions of
Bachelor’s degree certificate and for misrepresentation of educational
qualifications for securing appointment.
15. The learned Additional Solicitor General submits that, since
the very inception, Dr. Dheeraj Sharma not only made material
concealments with regard to his educational qualifications, but also
misrepresented himself to be an eligible candidate. Moreover, now it is
not under dispute from any corner that, he possesses only a second class
Bachelor’s degree, hence he was ineligible for being appointed to the post
of Director.
16. Elaborating his above made submission, the learned
Additional Solicitor General submits that, the S.C.S.C. had, in its first
meeting held on 22.02.2016, shortlisted total 13 candidates, including Dr.
Dheeraj Sharma, and, also recorded a specific observation that “some of
the candidates have not mentioned their class/percentage of marks
obtained in Bachelor’s and Master’s degree examinations as required in
the advertisement. Thus, it is decided to call for the relevant certifies from
the above thirteen shortlisted candidates before initiating the next phase
of process for selection”. Apart from these 13 shortlisted candidates, Prof.
Atanu Rakshit and Prof. S. Bhargav were also called for interview, subject
to them fulfilling the eligibility criteria. Out of these two candidates, only
Prof. Atanu Rakshit qualified the eligibility criteria and was accordingly
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called for interview along with other 13 shortlisted candidates. The
decision (supra) of the S.C.S.C. resulted in an e-mail dated 28.03.2016
becoming addressed to Dr. Dheeraj Sharma, thereby requesting him to
provide a soft copy of his Bachelor’s and Master’s degree certificate with
first class inasmuch as it was a pre-requisite to be considered as eligibility
criteria. Similar e-mails were addressed to other candidates as well.
However, when the e-mail did not reap the desired fruits, a letter dated
31.03.2016 was addressed to him, thereby requesting to attend the
personal discussion along with original testimonials (Subject to the
condition that he scored first class at Bachelor’s and Master’s level).
(emphasis supplied). Not only this, the requirement of submission of
Bachelor’s and Master’s level degree with first class was reiterated time
and again in every communication sent to Dr. Dheeraj Sharma but all in
vain, inasmuch as, he did not furnish the requisite certificates and
attended the personal discussion, thus knowingly and willfully
misrepresenting the factum of his educational qualifications. This
misrepresentation resulted in the S.C.S.C., in its second meeting held on
29.04.2016, recommending his name in the panel of candidates for
appointment to the post of Director.
17. The next argument constructed by the learned Additional
Solicitor General is that, all the shortlisted candidates, including the ones
nominated for interview under the category of “nomination from eminent
person”, were required to fulfill the eligibility criteria prescribed in the
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advertisement. Therefore, the contention of Dr. Dheeraj Sharma that, he
did not need to fulfill the essential eligibility criteria inasmuch as the
S.C.S.C. was empowered to consider the nomination received from
eminent persons, is a false and misconceived contention. To lend vigour
to this submission, he reiteratedly submits that, out of the two additional
candidates, namely, Prof. Atanu Rakshit and Prof. S. Bhargav, who were
nominated under the category of “eminent persons” and were called for
interview along with the 13 shortlisted candidates, the S.C.S.C. did not
find Prof. S. Bhargav to be qualifying the eligibility criteria of having first
class Bachelor’s and Master’s level degree, hence he was not invited for
personal discussion, and, only Prof. Atanu Rakshit was called for personal
interview on account of hers fulfilling the requisite eligibility criteria.
18. The learned Additional Solicitor General next submits that,
the impugned show cause notice has rightly been issued to Dr. Dheeraj
Sharma inasmuch as the respondent(s)-U.O.I., being the appointing
authority, is competent to take disciplinary action against him for making
misrepresentation and concealment. Polishing this argument, he submits
that, the entire selection process was initiated, conducted and completed
by the Government of India, which culminated into approval becoming
granted by the A.C.C. for appointment of Dr. Dheeraj Sharma to the post
of Director, I.I.M., Rohtak, vide letter dated 10.02.2017, and, this
approval was conveyed to the Chairman, Board of Governors, I.I.M.,
Rohtak, vide letter dated 17.02.2017. During this entire process, the
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petitioner, not even once, applied or appeared before the Board of
Governors, I.I.M., Rohtak or any other body of the I.I.M., Rohtak.
Moreover, Dr. Dheeraj Sharma has, in his written statement, invariably
mentioned that he was appointed by the respondent(s)-Union of India.
Hence, now he cannot take a contradictory stand, and, the doctrine of
estoppel estops him from changing his above stand.
19. Continuing his arguments, the learned Additional Solicitor
General submits that, consequent upon receipt of notice in the writ of quo
warranto (CWP-1649-2019), although the respondent(s)-U.O.I. filed a
written statement to the effect that, due procedure was adopted for
appointment, however, it was also specifically stated therein that, the
record of Bachelor’s degree of Dr. Dheeraj Sharma was not available in
the Office/Department of Higher Education. He further submits that, even
the Ministry of Education, vide letter dated 18.02.2021, requested Dr.
Dheeraj Sharma to furnish his self-attested copies of mark-sheets, degrees
and experience certificate by e-mail and also the physical copies thereof
by post or by hand at the earliest. However, when no response was
received, various reminders were issued but the same also did not have
any impact on his ears. Not only this, the Ministry of Education wrote
similar letters to the CAO, I.I.M., Rohtak, with a copy endorsed to the
Chairman, Board of Governors, I.I.M., Rohtak, thereby requesting for
submission of the requisite certificates by 17.12.2021, as the same were
required to be furnished before this Court. In this way, on one hand, Dr.
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Dheeraj Sharma did not furnish his Bachelor’s and Master’s degree with
first class and on the other hand, he kept on misleading this Court by
filing reply with wrong averments that he possesses the requisite
educational qualifications.
20. It is further submitted that, just on the eve of completion of 5
year’s directorship tenure of Dr. Dheeraj Sharma, the office of the CAO,
I.I.M., Rohtak, submitted his Bachelor’s degree to the Department vide e-
mail dated 17.02.2022, whereupon, it finally came to light that, he never
possessed a First Class Bachelor’s Degree. This revelation resulted in the
respondent(s)-U.O.I. rightly serving the impugned show cause notice
upon Dr. Dheeraj Sharma.
21. Concluding his arguments, the learned Additional Solicitor
General submits that, the petition instituted by Dr. Dheeraj Sharma
against the show cause notice dated 28.03.2022 is a misconceived and
premature motion inasmuch as no writ is maintainable against show cause
notice. Dr. Dheeraj Sharma should subject himself to the authority of the
respondent(s)-U.O.I. and raise all the pleas, as raised before this Court,
before it by filing response to the show cause notice, so that an apt
decision would be made thereon.
SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR DR.
DHEERAJ SHARMA (PETITIONER IN CWP-7608-2022)
22. Opening his arguments, the learned senior counsel submits
that, although it is not true that, Dr. Dheeraj Sharma did not possess the
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requisite qualifications, yet even if it is so assumed for the sake of
arguments, the advertisement clearly spelt out that, candidates falling in
the category of “nomination from eminent persons in the field of
management/management education” are not required to possess First
Class Degree at Bachelor’s and Master’s level, for being appointed as the
Director, I.I.M, Rohtak. Moreover, the advertisement bestowed authority
upon the S.C.S.C. to consider the nominations received from eminent
person(s) even if the latter does not possess First Class Degree at
Bachelor’s and Master’s level. In the present case, Dr. Dheeraj Sharma
never claimed himself to be eligible on the basis of educational
qualifications prescribed in the advertisement, rather his candidature, for
being appointed as Director, I.I.M., Rohtak, was considered by the
S.C.S.C. on the basis of nomination received from Prof. S.C. Vaidya, vide
letter dated 07.05.2015, and, not on the basis of the submitted application.
Prof. S.C. Vaidya was functioning as Secretary General of GGDSD
College Society at the time of nomination of Dr. Dheeraj Sharma. To
substantiate this fact, he places reliance upon the affidavit sworn by Prof.
Vaidya, which is annexed as Annexure P-33 (in CWP-7608-2022).
23. The learned senior counsel further submits that, in the second
meeting of the S.C.S.C. held on 29.04.2016, Dr. Dheeraj Sharma handed
over the hard copies of his degrees to the Secretary, Department of Higher
Education, and only thereafter, the S.C.S.C. recommended his name in the
panel of candidates. This fact can also be inferred from the intra
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departmental communications.
24. To substantiate his above made argument, the learned senior
counsel makes dependence upon the minutes of the 2nd meeting of the
S.C.S.C., wherein becomes enclosed a specific finding that, only after
taking into account the respective resume of the candidates and their
performance during the personal discussion, the panel of candidates was
recommended for appointment. Not only this, he also draws attention of
this Court towards the letter dated 07.12.2016 (Annexure P-17 in CWP-
7608-2022), whereby, the MHRD confirmed that Dr. Dheeraj Sharma
meets the eligibility requirements as on the crucial date of eligibility.
Moreover, his updated CV was also enclosed with the said letter. In this
way, only after being satisfied with regard to his eligibility, his name was
recommended by the A.C.C. for appointment as Director, and finally, he
was appointed by the Board of Governors, I.I.M., Rohtak.
25. Proceeding further with his arguments and by referring to the
Memorandum of Association of I.I.M., Rohtak, the learned senior counsel
submits that, the Board of Governors is the appointing authority to the
post of Director, I.I.M., Rohtak, hence only it was seized with the
authority to issue any show cause notice to Dr. Dheeraj Sharma. The role
of the Central Government is limited only to the extent of prescribing the
terms and conditions and the procedure for appointment. Moreover, as is
evident from the letter dated 17.02.2017 (Annexure P-19 in CWP-7608-
2022), the approval of the A.C.C. was conveyed to the Chairman, Board
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of Governors, I.I.M., Rohtak, with the request to offer appointment to Dr.
Dheeraj Sharma. Consequently, the impugned show cause notice, as
issued by the respondent(s)-U.O.I., has been issued without any authority
and jurisdiction, therefore is required to be interfered into by this Court.
26. Insofar as the writ of quo warranto is concerned, the learned
senior counsel assails the credentials of the petitioners therein and submits
that the writ of quo warranto, at their behest, is not maintainable inasmuch
as they are motivated litigants and the said writ petition is a result of
malice and ill will. Elaborating this argument, he submits that, Dr.
Dheeraj Sharma, during his tenure as Director, terminated the services of
two employees namely Mr. Nirmalya Bandhopadhyay and Mrs. Vijay
Lakshmi Singh on account of their poor performance. Nurturing grudge
against their termination, these employees instructed the petitioners to
institute CWP-1649-2019, thereby challenging the appointment of Dr.
Dheeraj Sharma. In fact, during the course of hearing of a bail application,
arising out of FIR No.114 dated 18.02.2020, under Sections 406, 420 of
the IPC, registered at P.S. Shivaji Colony, Rohtak, it has been admitted by
Mr. Nirmalya before the JMIC, Rohtak, that he is instrumental in filing
CWP-1649-2019.
27. Furthermore, by referring to the R.T.I. applications, the
learned senior counsel submits that, the said applications were authored
by none other than M. Chatterjee and V.K. Singh, who are wife and
husband respectively of Mr. Nirmalya Bandhopadhyay and Mrs. Vijay
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Lakshmi Singh. Moreover, the credentials of the petitioners, who
instituted the writ of quo warranto (CWP-1649-2019), are highly doubtful
inasmuch as the petitioner No.1, who claims himself to be an R.T.I.
activist in West Bengal, and, the petitioner No.2, who claims himself to
be an advocate practicing at Delhi High Court, have nothing to do with
the State of Haryana or the affairs of the I.I.M., Rohtak. Consequently, the
above narrated facts make it abundantly clear that, the writ of quo
warranto has been filed with malice and ill will and on this score only, it
is liable to be dismissed.
28. Resting his arguments, the learned senior counsel submits
that, in response to a letter written by one Member of Parliament to the
HRD Minister on 09.05.2018, thereby raising concern with regard to
appointment of Director, I.I.M., Rohtak, the HRD Minister, through
authoring Annexure P-35 (in CWP-7608-2022) made it clear that, the
appointment of Director was made with the approval of A.C.C. after
obtaining recommendation of the S.C.S.C. It was also clarified that, the
S.C.S.C. is empowered to shortlist some of the candidates on the basis of
advertisement or directly recommend candidates from their own search
for selection to the post of Director. In this way, it is clear that
appointment of Dr. Dheeraj Sharma as the Director, I.I.M., Rohtak, does
not suffer from any illegality.
ANALYSIS OF HISTORY OF THE I.I.M. ROHTAK, AND, OF
THE APPOSITE RULES/ACT
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29. The I.I.M., Rohtak, was registered with the District Registrar
of Societies, Rohtak, Haryana, on 16.11.2009. Post the coming into force
of the Haryana Registration and Regulation of Societies Act, 2012
(Haryana Act No.1 of 2012), the I.I.M., Rohtak, was allotted a new
registration number on 22.04.2014.
30. The Memorandum of Association of the I.I.M., Rohtak,
makes vivid display that, the object of the Society was to establish and to
carry on the administration and management of the Indian Institute of
Management. The functions of the Society are enumerated in the
hereinafter extracted Clause 3 of the Memorandum of Association. The
hereinafter extracted sub-clause (i)(i) clearly voices that, the appointment
to the post of Director shall be made according to such procedures and on
such terms and conditions, as may be decided by the Central Government.
“3. The objects for which the Society is established are:-
(i) To establish and to carry on the administration and
management of the Indian Institute of Management.
The functions of the Society shall be:-
(a) To serve the needs of business and industry, through
programmes and activities developed to:
(i) Provide a steady stream of professionally competent
and value-oriented management graduates;
(ii) Strengthen existing Management processes through
continuing education programmes;
(iii) Contribute to national and regional policy making and
to management literature;
(iv) Assist in quality improvement efforts of educational
institutions especially schools of management in the (name19 of 66
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of the) region.
(b) To award diplomas, certificates and other distinctions to
candidates trained, and to prescribe standards of proficiency
before the award of such diplomas, certificates and other
distinctions.
(c) To meet the needs of Indian Industry and Commerce in respect
of latest information on Management through research and
publication of Indian Management literature with particular
reference to administrative programmes of business enterprises in
the country;
(d) To assist, institute and carry out research into matters
concerning the use of Management and allied techniques and
methods conducive to the importance of productivity.
(e) To institute and award fellowships, scholarships, prizes and
medals in accordance with the Rules and Bye-laws;
(f) To confer honorary awards and other distinctions;
(g) To fix and demand such fees and other charges as may be laid
down in the Bye-laws made under the Rules of the Society;
(h) To establish, maintain and manage halls and hostels for the
residence of students;
(i) To create administrative, technical and ministerial and other
posts under the Society other than the post of Director of the
Institute and to make appointments thereto provided that the
posts so created are in the cadre and scales of pay as approved
by the Central Government from time to time. The appointment
to the post of Director shall be made according to such
procedures and on such terms and conditions as may be decided
by the Central Government;
(j) To co-operate with educational or other institutions in any
part of the world having objects wholly or partly similar to those
of the Society by exchange of teachers, scholars and generally in
such manner as may be conducive to their common objects; and
(i) To create patronship, affiliation and other classes of
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professional or honorary or technical membership or
office as the Society may consider necessary.
(ii) To make Rules and Bye-laws for the conduct of the
affairs of the Society and to add, to amend, vary or rescind
them from time to time, with the approval of the Central
Government;
(iii) To acquire and hold property, provided that the prior
approval of the Central Government is obtained for
acquisition of immovable property;
(iv) To deal with any property belonging to or vested in the
Society in such manner as the Society may deem fit for
advancing its objects, provided that prior approval of the
Central Government is obtained for transfer of any
immovable property;
(v) To maintain a Fund to which shall be credited:
(a) All moneys provided by the Central and the
State Governments;
(b) All fees and other charges received by the
Society;
(c) All moneys received by the Society by way of
grants, gifts, donations, benefactions, bequests or
transfers; and
(d) All moneys received by the Society in any other
manner or from any other sources.
(vi) To deposit all moneys credited to the Fund in such
Banks or to invest them in such manner as the Society may,
with the approval of the Central Government, decide;
(vii) To meet the expenses of the Society including
expenses incurred in the exercise of its powers and
discharge of its functions out of the Fund;
(viii) To prepare and maintain accounts and other relevant
records and to prepare an annual statement of accounts
including the balance sheet of the Society in such forms as
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may be prescribed by the Central Government in
consultation with the Accountant General, Haryana,
Chandigarh;
(ix) To forward annually to the Central Government the
accounts of the Society as certified by the Comptroller and
Auditor General of India or any other authority as may be
decided by the Central Government;
(x) To do all such things as may be necessary, incidental
or conducive to the attainment of all or any of the objects
of the Society;
(xi) To constitute such Committee or Committees as it may
deem fit for the disposal of any business of the Institute or
for tendering advice in any matter pertaining to the
Institute;
(xii) To delegate any of its powers to the Board of
Governors of the Institute or any of the Committee or
Committees constituted by it;
(xiii) To invest surplus research funds not needed for
immediate research work in nationalized banks or
Government securities or in other forms specifically
approved by the Ministry of Science and Technology.”
31. The Rules adopted by the Society also hold dire significance.
Rule 4 specifies that, the general superintendence, direction and control of
the affairs of the Society and its income and property shall be vested in
the Governing Body of the Society, which shall be called the Board of
Governors, I.I.M., Rohtak. Rule 5 prescribes the composition of the Board
of Governors, while Rule 12 encloses the powers and functions of the
Board of Governors. To be precise, Rule 12(ix) stipulates that the
appointment to the post of Director shall be made by the Board
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according to such procedures and on such terms and conditions as
may be decided by the Central Government. Rules 4, 5 and 12 are
reproduced hereunder:-
“4. The general superintendence, direction and control of the
affairs of the Society and its income and property shall be vested
in the Governing Body of the Society which shall be called the
Board of Governors, Indian Institute of Management, Rohtak,
hereinafter referred to as ‘The Board’.”
*** *** ***
“5. The Board shall be composed of the following members:
(1) Chairman to be appointed by the Central Government.
(2 to 3) Two representatives of the Central Government, including
Financial Advisor (FA,HRD) nominated by the Ministry of
Human Resource Development (Department of Higher
Education), Government of India.
(4 to 7) Four representatives of Industry, Commerce, Labour and
the thrust area of the Institute nominated by the Central
Government.
(8 to 9) Two representatives of the State Government representing
its concerned Departments.
(10) Vice-Chancellor, Jawaharlal Nehru University, New Delhi.
(11) Representative of All-India Council for Technical Education
(AICTE) / NCHE.
(12) A representative of the All India Managment Association
(AIMA).
(13) Representative of Scheduled Caste/Scheduled Tribe
community, to be nominated by the Central Government.
(14 & 15) Two Professors of the Institute to be nominated by the
Chairman of the Board for two years.
(16) A member co-opted by the BOGs from the Alumni.
(17) Director of the Institute (ex-officio member).”
*** *** ***
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“12. Powers and functions of the Board:
The Board shall generally pursue and carry out the objects of the
Society as set forth in the MoA and in doing so shall follow and
implement the policy directions and guidelines laid down by the
Government of India.
The Board shall exercise all administrative and financial powers
of the Society including those vested or conferred on it by or
under any statute subject, nevertheless in respect of expenditure,
to such limitations as the Government of India, from time to time,
impose.
Subject to the provision of the Memorandum of Association and
these Rules and Bye-Laws framed there under, the Board shall
have the powers to:
(i) Prepare and execute detailed plans and programmes for the
establishment of the Institute and to carry on its administration
and management after such establishment;
(ii) Receive grants and contributions and to have custody of the
funds of the Institute, and to manage the properties of the
Institute;
(iii) Prepare the budget estimates of the Society far each year,
and to sanction the expenditure within the limits of the budget as
approved by the Central Government;
(iv) Prescribe and conduct courses of study, training and
research in Management and other subjects;
(v) Prescribe rules and regulations for the admission of
candidates to the various courses of study in conformity with the
policy approved in this behalf by the Central Government;
(vi) Lay down standard of proficiency to be demonstrated, before
the award of diplomas, certificates and other distinctions in
respect of the courses offered by the Institute;
(vii) Institute and award fellowships, scholarships, prizes and
medals;
(viii) Provide for and supervise the residence, health, discipline
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and the well-being of the students and employees of the Institute;
(ix) Create teaching, administrative, technical, ministerial and
other posts Under the Institute other than the post of Director
and to make appointments thereto provided that the posts so
created are in the cadre and scales of pay as approved by the
Central Government from time to time. The appointment to the
post of Director shall be made by the Board according to such
procedures and on such terms and conditions as may be decided
by the Central Government;
(x) Co-operate with any other organization in the matter of
education and training in Management and allied subjects;
(xi) Enter into arrangements and contracts for and on behalf of
the Institute;
(xii) Sue and defend all legal proceedings on behalf of the
Institute;
(xiii) Appoint Committees for the disposal of any business of the
Institute or for tendering advice in any matter pertaining to the
Institute;
(xiv) Delegate to such extent as it may deem necessary, any of its
powers to any officer or Committee of the Board;
(xv) Consider and pass such resolutions on the annual report, the
annual accounts and the financial estimates of the Society or the
Institute as it thinks fit, such annual report, annual accounts and
financial estimates along with the resolutions passed thereon by
the Board being submitted to the Central Government through the
State Government;
(xvi) Make, adopt, amend, vary or rescind from time to time, with
the prior approval of the Central Government, Bye-laws for the
regulation of, and for any purposes connected with the
management and administration of the affairs of the Institute and
for the furtherance of its objects;
(xvii) Make, adopt, amend, vary or rescind from time to time Bye-
laws (a) for the conduct of the business of the Board and the
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Committees to be appointed by it (b) for delegation of its powers
or (c) for fixing the quorum; and
(xviii) Perform such additional functions and to carry out such
duties as may from time to time be assigned to it by the Central
and the State Government;”
32. Post the creation of this Society and adoption of the Rules
(supra), the Parliament, with an object to declare certain institutes of
management to be institutions of national importance, with a view to
empower these institutions to attain standards of global excellence in
management, management research and allied areas of knowledge and to
provide for certain other matters connected therewith or incidental thereto,
enacted “The Indian Institutes of Management Act, 2017” (hereinafter
referred to as the ‘Act of 2017’), which came into effect from 31.12.2017.
33. Section 4 of the Act of 2017, which is reproduced hereunder,
deals with incorporation of institutes. According to this Section, on and
from the commencement of this Act, every existing Institute shall be a
body corporate by the same name as mentioned in column (5) of the
Schedule (I.I.M., Rohtak is one of those Institutes). Moreover, every
Institute shall have perpetual succession and a common seal, with power,
subject to the provisions of this Act, to acquire, hold and dispose of
property, both movable and immovable, and to contract and shall, by the
said name, sue or be sued.
“4. (1) On and from the commencement of this Act, every
existing Institute shall be a body corporate by the same name as
mentioned in column (5) of the Schedule.
(2) Every Institute referred to in column (5) of the Schedule shall
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have perpetual succession and a common seal, with power,
subject to the provisions of this Act, to acquire, hold and dispose
of property, both movable and immovable, and to contract and
shall, by the said name, sue or be sued.”
34. Section 5 of the Act of 2017, which is reproduced hereunder,
deals with the effect of incorporation of institutes. Sub-section (d) of this
Section spells out that, every person employed by every existing Institute
immediately before such commencement shall hold his office or service in
the corresponding Institute, with the same tenure, at the same
remuneration and upon the same terms and conditions and with the same
rights and privileges as to pension, leave, gratuity, provident fund and
other matters as he would have held had this Act not been enacted and
shall continue to do so unless and until his employment is terminated or
until such tenure, remuneration and terms and conditions are duly altered
by regulations.
“5. On and from the commencement of this Act,–
(a) any reference to an existing Institute in any contract or other
instrument shall be deemed as a reference to the corresponding
Institute;
(b) all properties, movable and immovable, of or belonging to
every existing Institute shall vest in the corresponding Institute;
(c) all rights and debts and other liabilities of every existing
Institute shall be transferred to, and be the rights and liabilities
of, the corresponding Institute;
(d) every person employed by every existing Institute immediately
before such commencement shall hold his office or service in the
corresponding Institute, with the same tenure, at the same
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the same rights and privileges as to pension, leave, gratuity,
provident fund and other matters as he would have held had this
Act not been enacted and shall continue to do so unless and until
his employment is terminated or until such tenure, remuneration
and terms and conditions are duly altered by regulations:
Provided that if the alteration so made is not acceptable to
such employee, his employment may be terminated by the Institute
in accordance with the terms of the contract with the employee,
or, if no provision is made therein in this behalf, on payment, to
him by the Institute, of a compensation equivalent to three
months’ remuneration in case of permanent employee and one
months’ remuneration in the case of other employee:
Provided further that any reference, by whatever form of
words, to the Director, and other officers of an existing Institute
under any law for the time being in force, or in any instrument or
other document, shall be construed as a reference to the Director,
and other officers of the corresponding Institutes;
(e) every person pursuing, before commencement of this Act, any
academic or research course in every existing Institute, shall be
deemed to have migrated and registered with the corresponding
Institute, on such commencement at the same level of course in
the Institute from which such person migrated;
(f) all suits and other legal proceedings instituted or which could
have been instituted by or against an existing Institute,
immediately before the commencement of this Act, shall be
continued or instituted by or against the corresponding Institute.”
35. Section 10, as encapsulated in Chapter III of the Act of 2017,
deals with the authorities of institutes. According to this Section, the
Board of Governors of each Institute shall be the principal executive
body. Section 11 embodies the powers and functions of the Board.
Section 16 displays the Director to be the Chief Executive Officer of the
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Institute, who shall provide leadership to the Institute and be responsible
for implementation of the decisions of the Board. Sub-section (2) of
Section 16 speaks in unequivocal terms that, the Director shall be
appointed by the Board, on such terms and conditions of service, as may
be prescribed. Sub-section (3) dictates that, the Director shall be
appointed out of the panel of names recommended by S.C.S.C to be
constituted by the Board. Insofar as removal of the Director from his
office is concerned, sub-section (7) bestows the said power upon the
Board. Furthermore, sub-section (9) empowers the Board to, in the event
of the post of Director falling vacant on account of any reason, appoint the
senior-most faculty in the institution as the Director in charge till the
appointment of a regular Director.
36. The relevant portions of Sections 10, 11 and 16 of the Act of
2017 are reproduced hereunder:-
“10. (1) The Board of Governors of each Institute shall be the
principal executive body of that Institute.
XX XX XX"
*** *** ***
“11. (1) Subject to the provisions of this Act, the Board of every
Institute shall be responsible for the general superintendence,
direction and control of the affairs of the Institute and shall have
the power to frame or amend or modify or rescind the regulations
governing the affairs of the Institute to achieve the objects of the
Institute specified in section 6.
(2) Without prejudice to the provisions of sub-section (1), the
Board shall have the following powers, namely:–
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(a) to take decisions on questions of policy relating to the
administration and working of the Institute;
(b) to examine and approve the annual budget estimates of
the Institute;
(c) to examine and approve the plan for development of the
Institute and to identify sources of finance for
implementation of the plan;
(d) to establish departments, faculties or schools of studies
and initiate programmes or courses of study at the
Institute;
(e) to set-up centres of management studies and allied
areas within the country under intimation to the Central
Government;
(f) to grant degrees, diplomas and other academic
distinctions or titles, and to institute and award
fellowships, scholarships, prizes and medals;
(g) to confer honorary degrees in such manner as may be
specified by the regulations;
(h) to grant honorary awards and other distinctions;
(i) to create academic, administrative, technical and other
posts and to make appointments thereto:
Provided that the cadre, the pay scales, allowances
and term of employment of such posts shall be such as may
be determined by the Central Government;
(j) to determine, by regulations, the number and
emoluments of such posts and to define the duties and
conditions of services of the academic, administrative,
technical and other staff;
(k) to set-up centres of management studies and allied
areas outside India in accordance with guidelines laid
down by the Central Government from time to time and in
accordance with the provisions of the laws for the time
being in force in such foreign country;
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(l) to pay, variable pay to the Director of the Institute on
the basis of performance objectives as may be specified by
the regulations;
(m) to specify by regulations, the fees to be charged for
courses of study and examinations in the Institute;
(n) to specify by regulations the manner of formation of
department of teaching;
(o) to specify by regulations the institution of fellowships,
scholarships, exhibitions, medals and prizes;
(p) to specify by regulations the qualifications,
classification, terms of office and method of appointment of
the academic, administrative, technical and other staff of
the Institute;
(q) to specify by regulations the constitution of pension,
insurance and provident funds for the benefit of the
academic, administrative, technical and other staff;
(r) to specify by regulations, the establishment and
maintenance of buildings;
(s) to specify by regulations, the conditions of residence of
students of the Institute and levying of fees for residence in
the halls and hostels and of other charges;
(t) to specify by regulations, the manner of authentication
of the orders and decisions of the Board;
(u) to specify by regulations, the quorum for meetings of
the Board, the Academic Council or any Committee, and
the procedures to be followed in the conduct of their
business;
(v) to specify by regulations, the financial accountability of
the Institute; and
(w) to exercise such other powers and perform such other
duties as may be conferred or imposed upon it by this Act
or the rules made thereunder.
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(3) Subject to the provisions of this Act, the Board may by
regulations, delegate such powers and functions of the Board to
the Director as it may deem fit.
(4) The Board shall conduct an annual review of the performance
of the Director, in the context of the achievements of objects of the
Institute:
Provided that such review shall include performance
reviews of faculty members of the Institute on such parameters,
periodicity and terms of reference as may be determined by the
Board.
(5) The Board shall, through an independent agency or group of
experts, within a period of three years from the date of
incorporation of the Institute, and thereafter at least once every
three years, evaluate and review the performance of the Institutes,
including its faculty, on the parameters of long term strategy and
rolling plans of the Institutes and such other parameters as the
Board may decide and the report of such review shall be placed
in public domain.
(6) The qualifications, experience and the manner of selection of
the independent agency or group of experts, referred to in sub-
section (5), shall be such as may be specified by regulations.
(7) The report of the evaluation and review under sub-section (5)
shall be submitted by the Board to the Central Government along
with an action taken report thereon.
(8) Where in the opinion of the Chairperson or the Director the
situation is so emergent that an immediate decision need to be
taken in the interest of the Institute, the Chairperson, in
consultation with the Director may issue such orders as may be
necessary, recording the grounds for his opinion:
Provided that such orders shall be submitted for
ratification by the Board in the next meeting.
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(9) The Board shall in the exercise of its power and discharge of
its functions under this Act, be accountable to the Central
Government.”
*** *** ***
“16. (1) The Director shall be the Chief Executive Officer of the
Institute and shall provide leadership to the Institute and be
responsible for implementation of the decisions of the Board.
(2) The Director shall be appointed by the Board, on such terms
and conditions of service as may be prescribed.
(3) The Director shall be appointed out of the panel of names
recommended by a search-cum-selection committee to be
constituted by the Board, consisting of:–
(a) the Chairperson of the Board, who shall be the
Chairperson of the search-cum-selection committee;
(b) three members chosen from amongst eminent
administrators, industrialists, educationists, scientists,
technocrats and management specialists:
Provided that where the Board is not satisfied with
the recommendations of the search-cum-selection
committee, it may ask the search-cum-selection committee
to make fresh recommendations.
XX XX XX
(7) The Board may remove from office the Director, who–
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence which, in the opinion
of the Board, involves moral turpitude; or
(c) has become physically or mentally incapable of acting
as a Director; or
(d) has acquired such financial or other interest as is likely
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(e) has so abused his position or so conducted himself as to
render his continuance in office prejudicial to the public
interest:
Provided that the Director shall not be removed
from office except by an order made by the Board, after an
enquiry instituted by it in which the Director has been
informed of the charges against him and given a
reasonable opportunity of being heard in respect of those
charges.
XX XX XX
(9) Where the post of Director falls vacant on account of any
reason, the Board may appoint the senior-most faculty in the
institution as the Director in charge till a regular Director is
appointed:
Provided that if the senior-most faculty is not willing to
hold the post of Director in charge, then the next senior-most
willing faculty may be appointed as Director in charge.”
37. A conjoint reading of the hereinabove made analysis makes
it abundantly clear that:-
(a) Rule 4 of the Society Rules, as adopted by the I.I.M.,
Rohtak, bestowed on the Governing Body/Board of
Governors the general superintendence, direction and
control of the affairs of the Society;
(b) Rule 12(ix) conferred authority upon the Board of
Governors to make appointment to the post of Director,
according to such procedures and on such terms and
conditions as may be decided by the Central Government.
(c) With the promulgation of the Act of 2017, the Board
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of Governor not only becomes authorized to make
appointment to the post of Director, but also to initiate an
inquiry and to remove the Director.
(d) Neither the Rules adopted by the I.I.M. Rohtak, nor
the Act of 2017, declares the Union of India, especially the
MHRD, to be the appointing authority to the post of
Director.
38. The arguments made by the learned counsels for the
contesting litigants and the hereinabove made analysis of the apposite
statutory provisions coax this Court to formulate the following four
questions for adjudication of the present lis.
(i) Whether the MHRD is competent to serve show
cause notice to Dr. Dheeraj Singh, which is per se initiation
of disciplinary inquiry against him ?
(ii) Whether the writ petition filed by Dr. Dheeraj
Sharma against the impugned show cause notice is
maintainable ?
(iii) Whether the S.C.S.C. recommended the name of Dr.
Dheeraj Sharma for appointment to the post of Director
under the category “nomination from eminent person”? If
the answer is in affirmative, then whether Dr. Dheeraj
Sharma was required to possess the requisite educational
qualifications, as prescribed in the advertisement ?
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(iv) Whether the writ of quo warranto is maintainable
against Dr. Dheeraj Sharma ?
ANSWERS TO THE HEREINABOVE FRAMED QUESTIONS
Question (I): Whether the MHRD is competent to serve
show cause notice to Dr. Dheeraj Singh, which is per se
initiation of disciplinary inquiry against him ?
39. The Rules adopted by the Society/I.I.M. Rohtak, as also the
subsequently promulgated Act of 2017, coax this Court to pen down a dis-
affirmative answer to the question no.(i), inasmuch as, this Court is of the
opinion that, the appointing and disciplinary authority to the post of
Director was/is the Board of Governors and not the MHRD. The primary
reason for forming this opinion stems from Clause 3(a)(i) of the
Memorandum of Association and Rule 12(ix) of the Society Rules,
wherein became enclosed the undisputed mandate that, appointment to the
post of Director shall be made by the Board of Governors, I.I.M., Rohtak,
according to such procedures and on such terms and conditions as may be
decided by the Central Government.
40. In the present case, it is not under dispute that, right from the
initiation of the appointment process in March, 2015 and till the
appointment of Dr. Dheeraj Sharma in February, 2017, the Rules (supra)
were in force. Although the entire appointment process, whether it be
issuance of the advertisement and grant of approval by the A.C.C., was
conducted by the respondent(s)-Union of India, however, the final
appointment was made by the Board of Governors, I.I.M., Rohtak. This
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conclusion becomes fortified from the fact that, on 17.02.2017, the
MHRD, while communicating A.C.C.’s approval, for appointment of Dr.
Dheeraj Sharma as Director, to the Chairperson, Board of Governors,
I.I.M., Rohtak, also requested it to convey the offer of appointment to Dr.
Dheeraj Sharma. The relevant extract of the communication dated
17.02.2017 is reproduced hereunder:-
“Dear Shri Ravi Kant
D.O. No.10-2/2015/TS.V
17th February, 2017
I am pleased to inform you that the Competent Authority
has approved the appointment of Dr. Dheeraj Sharma, as
Director, Indian Institute of Management, Rohtak on contract
basis, in the fixed pay of Rs. 80,000/- per month plus other
allowances for a term of five years w.e.f. the date of assumption of
charge of the post or till the attainment of the 65 years or until
further orders, whichever is the earliest, on usual terms &
conditions (pre-amended) as per Clause 3(i) of the Memorandum
of Association and Rules of IIM Rohtak.
2. I request you to kindly convey the Offer of appointment to Dr.
Dheeraj Sharma. The joining report obtained from Dr. Dheeraj
Sharma, may be sent to this Ministry at the earliest along with
Offer of appointment issued to him. A copy of the terms and
conditions (pre-amended) of the post of Director of IIM Rohtak is
annexed. Any change in terms and condition would be
communicated later.
Yours sincerely
Sd/-
17/2/17
(Parveen Kumar)
Shri Ravi Kant,
Chairperson, BoGs IIM Rohtak”
41. In deference to the communication (supra), the Chairperson,
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Board of Governors, I.I.M., Rohtak, issued the appointment letter dated
20.02.2017 to Dr. Dheeraj Sharma. The additional terms and conditions
enclosed with the appointment letter makes vivid display that, the
disciplinary authority for taking any action against the Director is the
Board of Governors only. The relevant extract of the appointment letter
and the relevant clauses of the additional terms and conditions are
reproduced hereunder:-
“INDIAN INSTITUTE OF MANAGEMENT ROHTAK
M.D. University Campus, Rohtak, Haryana 124001
February 20, 2017
Dear Dr. Dheeraj Sharma,
I am pleased to inform you that the Competent Authority has
approved your appointment as Director, Indian Institute of
Management, Rohtak. On behalf of the Board and my own behalf,
I convey heartiest congratulations to you.
Your appointment is on contract basis, in the fixed pay of Rs.
80,000/- per month plus other allowances for a term of five years
with effect from the date of assumption of charge of the post or till
the attainment of the 65 years or until further orders, whichever is
the earliest, on usual terms and conditions (pre-amended) as per
clause 3(i) of the Memorandum of Association and Rules of IIM
Rohtak. Copy of terms and conditions are annexed herewith. Any
change in terms and conditions would be communicated later.
May I please request you to kindly return the signed duplicate
copy of this letter giving your consent to the appointment and also
letting us know when you will be joining in order to convey the
same to the Ministry of HRD.
The Institute is keenly looking forward to your joining and to your
dedicated contribution to transform it as a centre of excellence.
With best wishes,38 of 66
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Yours faithfully,
Sd/-
(Ravi Kant)
Chairman (IIM Rohtak)Accepted (1 March, 2017)
Sd/-
To,
Dr. Dheeraj Sharma
Professor,
IM, Wing-93, Ahmedabad.
House No. T32, IIM Ahmedabad
Contact No. 079-66324887, 9099946262
Email: [email protected]”
*** *** ***
“Additional Terms and Conditions for the Director
XX XX XX
13. Board of Governors of IIM Rohtak is competent and will
handle any other personnel matter pertaining to Director
including housing, medical facility, discipline, and perquisites.
14. For the matters not covered in these terms and conditions, the
board of governors of IIM Rohtak will be competent to decide.”
42. In this way, it is abundantly clear that, the appointment of Dr.
Dheeraj Sharma as Director, I.I.M., Rohtak, was made by the Board of
Governors, on such terms and conditions, as decided by the Central
Government and therefore, this appointment was in consonance with the
procedure prescribed in the Society Rules (supra). Moreover, the Board of
Governor was not only the appointing authority to the post of Director,
but was also, as is evident from the terms and conditions attached with the
appointment letter, conferred the powers of disciplinary authority.
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43. Not only the Memorandum of Association and the Society
Rules (supra), but the subsequently promulgated Act of 2017, which came
into force on 31.12.2017, also lends vigor to the conclusion (supra)
inasmuch as it also confers the appointing and disciplinary authority, in
respect of the post of Director, upon the Board of Governors.
44. Reiteratedly; (i) Section 4 of the Act of 2017 declares that,
on the commencement of this Act, every existing Institute shall be a body
corporate by the same name as mentioned in column (5) of the Schedule
attached therewith; (ii) Section 5 dictates that, all rights and debts and
other liabilities of every existing Institute shall be transferred to and be the
rights and liabilities of the corresponding institute. Moreover, the terms
and conditions of service of every person employed by every existing
Institute shall remain same, and, every such person shall have the same
rights and privileges as to pension, leave, gratuity, provident fund and
other matters (emphasis supplied); (iii) Section 16(2) encloses the
unequivocal mandate that, the Director shall be appointed by the Board,
on such terms and conditions of service, as may be prescribed; (iv)
Section 16(7) commands that, the Director shall not be removed from
office except by an order made by the Board of Governors, after an
inquiry instituted by it, in which the Director has been informed of the
charges against him and given reasonable opportunity of bearing heard in
respect of those charges.
45. Another important statutory provision, which has not been
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analyzed in the preceding paragraphs but requires its being discussed at
this juncture, is enclosed in Section 17 of the Act of 2017. This Section
deals with the procedure of inquiry to be held against the Institute, and, it
also empowers the Board of Governors to remove the Director or take any
other action deemed fit, in accordance with the inquiry report. Section 17
is reproduced hereunder:-
“17. (1) The Board may initiate an inquiry as deemed proper
against the Institute which has not been functioning in
accordance with the provisions and the objectives of the Act:
Provided that such an inquiry shall be conducted by a
retired High Court Judge.
(2) The Board may, based on the findings of such an inquiry,
remove the Director or take any other action deemed fit, and the
Institute shall be bound to comply with such directions within
reasonable time.”
46. In summa, the mandate clothed in the Memorandum of
Association, Society Rules and the Act of 2017 leave no room for any
doubt that, the appointing and disciplinary authority to the post of
Director was/is the Board of Governors and not the MHRD.
Consequently, this Court has no hesitation to hold that, the MHRD did not
have any jurisdiction to serve the impugned show cause notice, and that,
the impugned show cause notice suffers from the vice of lack of able
jurisdiction. In this way, the question no. (i) is answered in negative.
(ii) Whether the writ petition filed by Dr. Dheeraj
Sharma against the impugned show cause notice is
maintainable ?
47. This question has arisen from the objection raised by the
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learned Additional Solicitor General regarding maintainability of the writ
petition preferred by Dr. Dheeraj Sharma against the impugned show
cause notice.
48. As already held in the preceding paragraphs, the MHRD was
not seized of the apposite authority and jurisdiction to serve the impugned
show cause notice to Dr. Dheeraj Sharma, hence subjecting the latter to
respond to it would be a sheer futile exercise. Consequently, the writ
petition filed by Dr. Dheeraj Sharma against the impugned show cause
notice is maintainable on this ground only.
49. The conclusion (supra) of this Court garners support from the
verdict rendered by Hon’ble the Supreme Court in “Union of India and
another Vs. Vicco Laboratories“, (2007) 13 Supreme Court Cases 270,
wherein it has been held that, ordinarily the writ court should not interfere
at the stage of issuance of show cause notice, however, this rule is not
without exceptions. Where a show cause notice is issued either without
jurisdiction or in abuse of process of law, in that eventuality, the writ
court should not hesitate to interfere even at the stage of issuance of show
cause notice. The relevant paragraph of this verdict is reproduced
hereunder:-
“31. Normally, the writ court should not interfere at the stage of
issuance of show-cause notice by the authorities. In such a case,
the parties get ample opportunity to put forth their contentions
before the authorities concerned and to satisfy the authorities
concerned about the absence of case for proceeding against the
person against whom the show-cause notices have been issued.
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Abstinence from interference at the stage of issuance of show-
cause notice in order to relegate the parties to the proceedings
before the authorities concerned is the normal rule. However, the
said rule is not without exceptions. Where a show-cause notice is
issued either without jurisdiction or in an abuse of process of law,
certainly in that case, the writ court would not hesitate to
interfere even at the stage of issuance of show-cause notice. The
interference at the show-cause notice stage should be rare and
not in a routine manner. Mere assertion by the writ petitioner that
notice was without jurisdiction and/or abuse of process of law
would not suffice. It should be prima facie established to be so.
Where factual adjudication would be necessary, interference is
ruled out.”
50. On the analogy of the law laid down in the verdict (supra),
this Court is of the opinion that, it can, in exercise of its writ jurisdiction,
interfere with the impugned show cause notice, which has been issued by
an authority lacking the subject matter jurisdiction. This Court has made a
studied survey of the impugned show cause notice, which per se reflects
the premeditate mind of the authority, which drew it. It clearly reflects
from the contents of the impugned show cause notice that, calling for a
reply from Dr. Dheeraj Sharma is merely a formality, as the authority has
already concluded that, he does not possess the requisite educational
qualification, i.e. First Class degree at Bachelor’s level, hence apt action
is required to be taken against him. In order to avoid unnecessary
augmentation of this verdict, the contents of the impugned show cause
notice are not reproduced here. For that, reference can be made to the
impugned show cause notice (Annexure P-31 in CWP-7608-2022).
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51. It is a settled law that, when a notice is issued with
premeditated mind, a writ petition is maintainable against it. Gainful
reference in this regard can be made to the verdict rendered in “Siemens
Ltd. Vs. State of Maharashtra and Ors.“, (2006) 12 Supreme Court
Cases 33, relevant paragraphs whereof are reproduced hereunder:-
“9. Although ordinarily a writ court may not exercise its
discretionary jurisdiction in entertaining a writ petition
questioning a notice to show cause unless the same inter alia
appears to have been without jurisdiction as has been held by this
Court in some decisions including State of U.P. v. Brahm Datt
Sharma, (1987) 2 SCC 179, Special Director v. Mohd. Ghulam
Ghouse (2004) 3 SCC 440 and Union of India v. Kunisetty
Satyanarayana, 2006 (12) Scale 262, but the question herein has
to be considered from a different angle, viz. when a notice is
issued with premeditation, a writ petition would be maintainable.
In such an event, even if the courts directs the statutory authority
to hear the matter afresh, ordinarily such hearing would not yield
any fruitful purpose [See K.I. Shephard v. Union of India (1987) 4
SCC 431]. It is evident in the instant case that the respondent has
clearly made up its mind. It explicitly said so both in the counter
affidavit as also in its purported show cause.
10. The said principle has been followed by this Court in V.C.,
Banaras Hindu University v. Shrikant [(2006) 11 SCC 42],
stating: (SCC p. 60, paras 48-49)“48. The Vice Chancellor appears to have made up his
mind to impose the punishment of dismissal on the
respondent herein. A post decisional hearing given by the
High Court was illusory in this case.
49. In K.I. Shephard v. Union of India, this Court held :
(SCC p. 449, para 16)
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‘It is common experience that once a decision has been
taken, there is a tendency to uphold it and a representation
may not really yield any fruitful purpose.'”
11. A bare perusal of the order impugned before the High Court
as also the statements made before us in the counter affidavit filed
by the respondents, we are satisfied that the statutory authority
has already applied its mind and has formed an opinion as
regards the liability or otherwise of the appellant. If in passing
the order the respondent has already determined the liability of
the appellant and the only question which remains for its
consideration is quantification thereof, the same does not remain
in the realm of a show cause notice. The writ petition, in our
opinion, was maintainable.
12. For the reasons aforementioned, the impugned judgment
cannot be sustained which is set aside accordingly. The appeal is
allowed and the matter is remitted to the High Court for its
consideration afresh on its own merits. No costs.”
52. Moreover, Hon’ble the Supreme Court has, while rendering
the verdict in “Techno Prints Vs. Chhattisgarh Textbook Corporation
and another“, 2025 SCC OnLine SC 343, penned down the following
observations:-
“36. In the overall view of the matter more particularly in the
peculiar facts of the case, we have reached the conclusion that
asking the appellant herein to file his reply to the show cause
notice and then await the final order which may perhaps go
against him, leaving him with no option but to challenge the same
before the jurisdictional High Court will be nothing but an empty
formality. Even otherwise, issuing of show cause notice if not
always then at least most of the times is just an empty formality
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the Authority has made up its mind to ultimately pass the final
order blacklisting the Contractor. In other words, the show cause
notice in most of the cases is issued with a pre-determined mind.
It has got to be issued because this Court has said that without
giving an opportunity of hearing there cannot be any order of
blacklisting. To meet with this just a formality is completed by the
Authority of issuing a show cause notice.”
53. In view of the ratio of law laid down by Hon’ble the
Supreme Court in the verdicts (supra), this Court does not find any merit
in the objection raised by the learned Additional Solicitor General. The
writ petition filed by Dr. Dheeraj Sharma against the impugned show
cause notice, which has been issued with a premeditated mind by an
authority lacking the able authority and jurisdiction, is held to be
maintainable. In this way, the question no. (ii) is answered in affirmative.
(iii) Whether the S.C.S.C. recommended the name of Dr.
Dheeraj Sharma for appointment to the post of Director
under the category “nomination from eminent person”? If
the answer is in affirmative, then whether Dr. Dheeraj
Sharma was required to possess the requisite educational
qualifications, as prescribed in the advertisement ?
54. The cause for inscribing an affirmative and a dis-affirmative
answer respectively on the former and latter portion of the question no.
(iii) is embedded in the advertisement, minutes of meeting of the S.C.S.C.
and the intra departmental communications. The reasons for drawing this
inference are elaborated hereinafter.
55. The advertisement issued for appointment to the post of
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Director, I.I.M., Rohtak, declared in unequivocal terms that:-
(a) applications are invited from distinguished professionals
and academic administrators having at least 15 years
teaching/research experience in reputed institutions,
experience in national building and who are passionate
about building a premier institution;
(b) applicants should have outstanding academic credentials
throughout, including a Ph.D Degree from a reputed
institution with First Class degree at Bachelor’s and
Master’s level;
(c) Director will be appointed after obtaining approval of the
A.C.C. based on the recommendations made by the S.C.S.C.;
(d) S.C.S.C. will consider applications fulfilling the above
criteria received in response to this advertisement as well as
nomination received from eminent persons in the field of
management/management education. (emphasis supplied)
56. The relevant portion of the advertisement is reproduced
hereunder:-
“Applications are invited from distinguished professionals and
academic administrators having at least 15 years
teaching/research experience in reputed institutions, experience
in institution-building and who are passionate about building a
premier institution that reflects the talent, energy and potential of
an emergent India.
The applicants should have outstanding academic credentials
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throughout, including a Ph.D Degree from a reputed institution
with First Class degree at Bachelor’s and Master’s level.
The position is based at Rohtak (Haryana) within the National
Capital Region, approximately a two-hour drive from New Delhi.
The Director will be appointed after obtaining approval of the
Appointments Committee of Cabinet (ACC) based on the
recommendations made by a Search-cum-Selection Committee
(SCSC). The SCSC will consider applications fulfilling the above
criteria received in response to this advertisement as well as
nomination received from eminent persons in the field of
management/management education.”
57. The advertisement makes it clear that, apart from its
becoming bestowed with the authority to consider the applications
fulfilling the prescribed eligibility criteria, the S.C.S.C. was also bestowed
with the element of relaxation to appoint any person, who did not even
possess the prescribed educational qualification, to the post of Director,
by considering his/her nomination from “eminent person”.
58. The S.C.S.C., in its first meeting held on 22.02.2016,
examined all the 59 applications vis-a-vis the following three broad
parameters:-
(a) Academic Qualifications
(b) Professional Experience
(c) Administrative Experience
59. After examining the qualifications prescribed in the
advertisement and the individual data of each of the candidates, only 13
candidates, including Dr. Dheeraj Sharma, were shortlisted by the
S.C.S.C. for personal interview. Moreover, since some of the candidates
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did not mention their class/percentage of marks obtained in Bachelor’s
and Master’s degree examinations, as required in the advertisement, hence
the S.C.S.C decided to call the relevant certificates from all the 13
shortlisted candidates. Following this decision, the MHRD wrote e-mail
dated 28.03.2016 to Dr. Dheeraj Sharma to provide the soft copy of his
Bachelor’s and Master’s degree with first class.
60. According to the learned senior counsel for Dr. Dheeraj
Sharma, the e-mail (supra) was responded by Dr. Dheeraj Sharma, vide e-
mail dated 30.03.2016, wherewith he enclosed all his degrees, however,
this fact is disputed by the respondent(s)-U.O.I.
61. Nonetheless, the MHRD, vide letter dated 31.03.2016,
informed Dr. Dheeraj Sharma that, (i) since he did not mention the
class/division secured at Bachelor’s and Master’s level; and (ii) since he
did not provide the soft copy of his certificates despite the request
enclosed in e-mail dated 28.03.2016; hence he was requested to attend the
personal discussion along with original testimonials, subject to the
condition that he scored first class at Bachelor’s and Master’s level. The
relevant extract of the letter dated 31.03.2016 is reproduced hereunder:-
“2. On scrutiny of your application the Committee has found that
you have not mentioned the class/division secured at your
Bachelor’s and Master’s level examination. You have also been
requested vide email dt. 28.03.2016 to provide scanned copies of
certificates in this regard but the same has not received.
3. Accordingly, you are requested to attend the Personal
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Discussion as per the above schedule along with original
testimonials. (Subject to the condition that you scored first class
at Bachelor’s and Master’s level)”
62. It would be apt to record here that, apart from the 13
shortlisted candidates, the S.C.S.C. decided to call one Prof. Atanu
Rakshit and one Prof. S. Bhargav also for interview, subject to them
fulfilling the eligibility criteria. However, out of these two additional
candidates, only Prof. Atanu Rakshit satisfied the criteria and was called
for interview, whereas, Prof. Bhargav did not qualify the eligibility
criteria of having first class at Bachelor’s and Master’s level and was not
invited for interview.
63. When Dr. Dheeraj Sharma and other shortlisted candidates
caused appearance before the S.C.S.C. as per the given schedule, the latter
in its second meeting held on 29.04.2016, after considering the respective
resume of the former and their performance during personal discussion,
recommended the panel of candidates, comprising of Dr. Dheeraj Singh,
for appointment to the post of Director. The relevant extract of the
S.C.S.C.’s second meeting is reproduced hereunder:-
“6. After considering all the candidates who appeared in the
personal discussion and taking into account their respective
resume and their performance during the personal discussion, the
Committee unanimously recommend the following panel of
candidates for appointment in the post of Director IIM Rohtak in
order of merit.
(i) Dr. Bharat Bhasker
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(ii) Dr. Dheeraj Sharma
(iii) Dr. B.S. Sahay"
64. From the above, this Court can ably infer that, the MHRD
and the S.C.S.C. were well aware of the fact that, Dr. Dheeraj Sharma did
not submit his Bachelor’s/Master’s level degree at the first instance,
which resulted in him being called for personal discussion along with all
the original testimonials. Moreover, there is no wrangle amongst the
contesting litigants that, Dr. Dheeraj Sharma did not possess first class
Bachelor’s degree, yet the recommendation of his name for Directorship
by the S.C.S.C., based on consideration of his resume, clearly speaks in
volume that, it was recommended absolutely under the category
“nomination from eminent person”. This can be clearly inferred from the
intra departmental communications.
65. The MHRD, along with its letter dated 16.11.2016,
wherethrough, request for approval of A.C.C. for appointment of Dr.
Dheeraj Sharma as Director was made, also attached the necessary
information in the prescribed proforma. In Column No.11 of the said
proforma, which carries the heading “Recruitment Rules/Job
specifications”, it was specifically mentioned that no specific requirement
laid down. The relevant portion of the letter dated 16.11.2016, and, of the
proforma (supra) is reproduced hereunder:-
“7. After going through the recommendations of Selection
Committee, Hon’ble Human Resource Development Minister has
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appointment as Director, IIM Rohtak. Prof. Bharat Bhasker
(Candidate at S.No. 1 in the panel recommended by SCSC) has
already been recommended as Director of IIM Raipur and may
not be considered again. Copy of approval given by Hon’ble HRM
in respect of Dr. Dheeraj Sharma is enclosed as Annexure-I.”
XX XX XX
“11. Recruitment Rules/Job specifications:-
(i) Not normally laid down. However, the Search Committee
followed the following broad criteria for shortlisting:
(a) Academic Qualification;
(b) Professional Experience;
(c) Administrative Experience;
(ii) For Selection, the SCSC took into account the respective
resume and the performance of the candidates during personal
discussion.”
66. Subsequently, vide letter dated 07.12.2016, the DoPT, which
had to act as Nodal Agency for A.C.C., while considering the proposal for
appointment of Dr. Dheeraj Sharma as the Director, I.I.M., Rohtak, posed
a specific query to the MHRD, as to whether Dr. Dheeraj Sharma meets
the eligibility requirements for the post as on the crucial date of eligibility
inasmuch as the requisite column was left blank. This query was
answered in affirmative by the MHRD, vide letter dated 07.12.2016. The
affirmative response of the MHRD, as enclosed in the letter dated
07.12.2016, is reproduced hereunder:-
“Dear Shri Rajeev Kumar
D.O. No.10-2/2015/TS.V
Dated the 7th December, 2016
1. Please refer to this Department’s proposal seeking
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approval of ACC for appointment to the post of Director, Indian
Institute of Management (IIM) Rohtak sent vide O.M. of even
number dated 16th November, 2016.
2. The information given against Column 9 at Appendix-I
(particulars of the officer proposed to be appointed) may be read
as YES, as the candidate being recommended (Dr. Dheeraj
Sharma) meets the eligibility requirements as on the crucial date
of eligibility. This was inadvertently missed in the proforma.
3. The updated CV of Dr. Dheeraj Sharma is also enclosed.”
67. Therefore, the main issue raised by the learned Additional
Solicitor General that, Dr. Dheeraj Sharma made wilful misrepresentation
by concealing his original bachelor’s degree does not find support from
the hereinabove reproduced intra departmental communications.
Moreover, he never claimed himself to be possessing first class degree at
bachelor’s and master’s level. Resultantly, in totality, this Court can infer
that, his candidature was considered by the S.C.S.C. on the basis of: (a)
Academic Qualifications; (b) Professional Experience; and (c)
Administrative Experience. This conclusion also derives strength from the
fact that, one Member of Parliament racked up this issue with the HRD
Minister on 09.05.2018 and the latter, through authoring Annexure P-35
(in CWP-7608-2022) made it clear that, the appointment of Director was
made with the approval of A.C.C. after obtaining recommendation of the
S.C.S.C. It was also clarified that, the S.C.S.C. is empowered to shortlist
some of the candidates on the basis of advertisement or directly
recommend candidates from their own search for selection to the post of
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Director. The specific stand taken by the HRD Minister is reproduced
hereunder:-
“Please refer your letter dated 09.05.2018 regarding
irregularities in the appointment of Director, IIM Rohtak. I have
got the matter examined. The appointment of Director is made
with the approval of ACC after obtaining recommendation of
Search-cum-Selection Committee constituted for purpose. The
SCSC is empowered to shortlist some of the candidates applied on
the basis of advertisement or directly recommend candidates from
their own search for selection to the post of Director.
Accordingly, the SCSC for IIM Rohtak recommended a panel of
three names on the basis of personal discussion with the
shortlisted candidates.
2. The panel of names was then submitted for final approval of
ACC.
2. You will appreciate to note that all efforts are made to ensure
100% transparency in the process of selection for appointment to
the post of Director in any of the institutes under my Ministry
including IIMs.”
68. The above reasoning makes it clear that, for appointment to
the post of Director, the S.C.S.C. was, besides its becoming empowered to
recommend the names of candidates shortlisted on account of theirs
possessing the advertised eligibility criteria, equally empowered to
recommend in the panel of candidates the names of those candidates
nominated from “eminent persons”.
69. In summa, this Court is of the opinion that, the S.C.S.C.
recommended the name of Dr. Dheeraj Sharma for appointment to the
post of Director under the category “nomination from eminent person”,
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and that, the S.C.S.C. was well empowered to do so. This question is
answered accordingly.
(iv) Whether the writ of quo warranto is maintainable
against Dr. Dheeraj Sharma ?
70. Before evincing any opinion upon this question, it is deemed
imperative to capture the legal understanding with regard to the writ of
“quo warranto”.
71. The maxim “quo warranto” means “by what authority”. The
basic object behind issuing such writ is to prevent a usurper from
wrongfully occupying a substantive public office. The nature, object and
the circumstances, in which such writ can be issued, have been explained
by Hon’ble the Supreme Court and by the Division Bench of this Court in
various judicial precedents, which are delved into hereinafter.
72. In the verdict rendered in case titled as “The University of
Mysore and another Vs. C.D. Govinda Rao and another“, [1964] 4 SCR
575, Hon’ble the Supreme Court has held that, the proceedings of quo
warranto is to protect the public from usurpers of public office, and that, a
person, who claims the writ of quo warranto, has to satisfy the Court that
the office in question is a public office and is held by a usurper without
legal authority. In that eventuality, an enquiry is to be held as to whether
the appointment of the alleged usurper has been made in accordance with
law or not. The relevant observations embodied in the verdict (supra) are
reproduced hereunder:-
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“As Halsbury has observed:
“An information in the nature of a quo warranto took the place of
the obsolete writ of quo warranto which lay against a person who
claimed or usurped an office, franchise, or liberty, to inquire by
what authority he supported his claim, in order that the right to
the office or franchise might be determined.”
Broadly stated, the quo warranto proceeding affords a judicial
remedy by which any person, who holds an independent
substantive public office or franchise or liberty, is called upon to
show by what right he holds the said office, franchise or liberty,
so that his title to it may be duly determined, and in case the
finding is that the holder of the office has not title, he would be
ousted from that office by judicial order. In other words, the
procedure of quo warranto gives the Judiciary a weapon to
control the Executive from making appointment to public office
against law and to protect a citizen from being deprived of public
office to which he has a right. These proceedings also tend to
protect the public from usurpers of public office, who might be
allowed to continue either with the connivance of the Executive or
by reason of its apathy. It will, thus, be seen that before a person
can effectively claim a writ of quo warranto, he has to satisfy the
Court that the office in question is a public office and is held by a
usurper without legal authority, and that inevitably would lead to
the enquiry as to whether the appointment of the alleged usurper
has been made in accordance with law or not.”
73. The Division Bench of this Court also had an occasion to
deal with the issue of quo warranto in case titled as “Dinesh Bagga Vs.
State of Punjab and others“, 2012(4) R.C.R. (Civil) 112. The Division
Bench held that, the writ of quo warranto confers power upon the Court to
examine whether a person occupying a public office is legally qualified or
not to hold such office or has been appointed in violation of the statutory
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provision that governs his appointment. It was also held that, the Court
may refuse to issue the writ of quo warranto where (i) the petition is
vexatious; (ii) the appointment suffers from a curable defect; (iii) the
petition is actuated by ill-will, malice or an ulterior motive, or, the person,
who approaches the Court, has been set up by someone else with an
ulterior/malicious motive to settle scores etc. The relevant observations of
the Division Bench are reproduced hereunder:-
“9. Before we proceed to adjudicate the present controversy on
merits, it would be appropriate to refer to the nature of a writ of
quo warranto, in brief. A writ of quo warranto confers power
upon a High Court to examine whether a person occupying a
public office is legally qualified or not to hold office or has been
appointed in violation of the statutory provision that governs his
appointment. A writ of quo warranto will only issue where there
is a clear and manifest infringement of legal conditions or
procedure prescribed for appointment to a public office. Thus, if
the occupant of a public office is found to be ineligible for holding
such an office or there is an incurable defect in the procedure
adopted for his appointment, a writ of quo warranto may issue to
unseat such a person. A court seized of a prayer for issuance of a
writ of quo warranto, may refuse to issue such a writ where the
petition is vexatious, the appointment suffers from a curable
defect, the petition is actuated by ill-will, malice or an ulterior
motive or the person, who approaches the court has been set up
by someone else with an ulterior/malicious motive to settle scores
etc. A writ of quo warranto may be issued at the instance of any
person whether any fundamental or any other legal right of such
person has been infringed or not. A petitioner, who does not seek
to enforce any personal right or claim the performance of any
duty towards him, may call upon the court to declare that an
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ineligible person has usurped a public office. The fact that the
petitioner is not a candidate is insufficient to reject a prayer for
issuance of a writ in the nature of quo warranto. A writ of quo
warranto is an exception to the general rule that only an
aggrieved person may apply under Article 226. Having set out,
though in brief, the nature of a writ of quo warranto, we would
now proceed to deal with the controversy on merits.”
74. The term “public office” has been extensively considered by
Hon’ble the Supreme Court in case titled as “B. Srinivasa Reddy Vs.
Karnataka Urban Water Supply & Drainage Board Employees’
Association and others“, 2006(4) SCT 268. The relevant portion of the
verdict in this case is extracted hereinafter:-
“….Black’s Law Dictionary defines public office as under:
“Public Office: Essential characteristics of “public office”
are (1) authority conferred by law, (2) fixed tenure of
office, and (3) power to exercise some portion of sovereign
functions of government, key element of such test is that
“officer” is carrying out sovereign function. Spring v.
Constantino 168 Conn. 563, 362 A. 2d 871, 875.9
Essential elements to establish public position as “public
office” are position must be created by Constitution,
legislature or through authority conferred by legislature,
portion of sovereign power of Government must be
delegated to position, duties and power must be delegated
to position, duties and powers must be defined, directly or
impliedly, by legislature or through legislative authority,
duties must be performed independently without control or
superior power other than law, and position must have
some permanency and continuity, State ex rel. E.li Lilly &
Co. v. Gaertner, Mo. App 619 S.W. 2d 6761, 764.”
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Carrying out sovereign function by the Board and delegation of a
portion of sovereign power of Government to the Managing
director of the Board and some permanency and continuity in the
appointment are quintessential features of public office. Every
one of these ingredients are absent in the appointment of the
appellant as Managing Director of the Board. This aspect of the
matter was completely lost sight of by the High Court…..”
75. Also, in “J. Jeyakumaran Vs. The Chancellor Universities
in Tamil Nadu Raj Bhavan and others”, 2015 LIC 1392, Hon’ble the
Supreme Court considered the scope of the writ of quo warranto and held
that, it cannot be invoked for a roving and fishing enquiry to find some
reason or other to unseat any office bearer. The relevant paragraph of the
verdict rendered in case (supra) is reproduced hereunder:-
“14. It cannot be a purpose of the Writ of Quo Warranto to carry
out a roving enquiry to find some reason or other to unseat the 8th
respondent from his post at the behest of the petitioner. In fact,
the petitioner, on our query, we were informed, is not even the
alumni of this University and certainly does not have any special
interest in this University. We, however, hasten to add that of
course, in a writ of Quo Warranto, that may not be really
relevant, but this is only to state that the reason why the petitioner
has approached this Court by the Writ of Quo Warranto without
making requisite enquiry and by making allegations against the
8th respondent even about his expertise in performance, is a
question mark on the motive for the same.”
76. The Co-ordinate Bench of this Court, through its drawing the
verdict in case titled as “Parveen Kumar Vs. State of Punjab and
others“, CWP No. 23267 of 2017, Decided on: 11.04.2023, observed
that, the writ of quo warranto is not a means to impugn a decision merely
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on an improper exercise of a lawful authority but the act aggrieved of
must be without authority. The person bringing about a challenge should
display a legal wrong and prejudicial affect by an act or omission of the
authority. The relevant observations enclosed in the verdict (supra) are
extracted hereinafter:-
“49. A writ in the nature of quo warranto is not to be invoked
merely because of an allegation that there is an improper exercise
of a lawful authority. It gets attracted when an authority exercises
a power it does not wield. The distinction is fine but real. The
allegation leveled in the present case revolve around undue
exercise of discretion and relaxation by the State. Vesting of such
power thus is not disputed. Considering the totality of
circumstances noticed above, I am of the view that:-
XX XX XX
viii) A writ of a quo warranto is not a means to impugn a decision
merely on an improper exercise of a lawful authority but the act
aggrieved of must be without authority. A legal wrong should in
other case of challenge exist for maintaining the cause, a legal
wrong requires existence of a judicially enforceable right distinct
from a nominal or highly speculative adverse affect on the
interest of a person. The person bringing about a challenge
should display a legal wrong and prejudicial affect (distinct from
speculative; nominal or remote affect) by an act or omission of
the authority, even if he has no fiduciary or proprietary interest.
XX XX XX”
77. Now, let’s examine the present question on the anvil of the
above legal propositions.
78. It is not under dispute that, the office occupied by Dr.
Dheeraj Sharma falls within the ambit of “public office”. Therefore, this
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Court has to examine as to whether he has been appointed against any
statutory provisions, or, he does not fulfill the eligibility criteria to hold
such office.
79. As held in the judicial precedents (supra), the writ of quo
warranto can be invoked to unseat a person, who has usurped a public
office without legal authority. In the present case, there is no wrangle
amongst the contesting litigants that, the impugned (initial) directorship
tenure has already completed on 19.02.2022 and now the writ of quo
warranto cannot be issued as the person has already demit his office on
account of completion of his tenure. Hence even on this sole account, the
present writ of quo warranto cannot be invoked by the petitioners.
Nonetheless, this Court has already, in the preceding paragraphs, penned
down a dis-affirmative answer on this question on merits also.
80. This Court cannot sit as an appellate authority over the
decision and wisdom of the S.C.S.C. To reach at this conclusion, this
Court garners support from the verdict rendered by Hon’ble the Supreme
Court in “Dalpat Abasaheb Solunke and others Vs. Dr. B.S. Mahajan
and others“, (1990) 1 SCC 305. The relevant portion of the verdict
(supra) is reproduced hereunder:-
“..It is not the function of the court to hear appeals over the
decisions of the Selection Committees and to scrutinise the
relative merits of the candidates. Whether a candidate is fit for a
particular post or not has to be decided by the duly constituted
Selection Committee which has the expertise on the subject. The
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had constituted the Committee in due compliance with the
relevant statutes. The Committee consisted of experts and it
selected the candidates after going through all the relevant
material before it. In sitting in appeal over the selection so made
and in setting it aside on the ground of the so called comparative
merits of the candidates as assessed by the court, the High Court
went wrong and exceeded its jurisdiction.”
81. Furthermore, the credentials of the petitioners, who instituted
the writ of quo warranto (CWP-1649-2019), are also under question. The
reason being that, the information gathered under the R.T.I. Act was
gathered by none other than M. Chatterjee and V.K. Singh, who are wife
and husband respectively of Mr. Nirmalya Bandhopadhyay and Mrs.
Vijay Lakshmi Singh, against whom Dr. Dheeraj Singh took departmental
action. Therefore, it appears that, the petitioners are only the front faces of
the above two disgruntled erstwhile employees of I.I.M., Rohtak, whose
services were terminated by Dr. Dheeraj Sharma.
82. Although locus is not a material issue for invoking the writ
of quo warranto, however, it cannot also be allowed to be invoked to
settle scores, specifically in the present circumstances when the impugned
directorship tenure is already over. In B. Srinivasa Reddy‘s case (supra),
Hon’ble the Supreme Court, while referring to its judgment rendered in
“A.N. Sashtri V. State of Punjab and others“, (1988) Supp SCC 127,
reinforced that, an imposture coming before Court invoking public law
remedy at the hands of a Constitutional Court suppressing material facts
has to be dealt with firmly. The relevant observations to the above effect,
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as recorded in B. Srinivasa Reddy‘s case (supra), are reproduced
hereunder:-
“48. The judgment impugned in this appeal not only exceeds the
limit of Quo Warranto but has not properly appreciated the fact
that writ petition filed by the Employees’ Union and the President
of the Union – Halakatte was absolutely lacking in bonafides. In
the instant case, the motive of the second respondent Halakatte is
very clear and the Court might in its discretion declined to grant
a Quo Warranto.
49. This Court in A.N. Sashtri vs. State of Punjab and Others,
(1988) Supp SCC 127 held that the Writ of Quo Warranto should
be refused where it is an outcome of malice or ill-will. The High
Court failed to appreciate that on 18.01.2003 the appellant filed a
criminal complaint against the second respondent Halakatte that
cognizance was taken by the criminal court in CC No. 4152 of
2003 by the jurisdictional magistrate on 24.02.2003, process was
issued to the second respondent who was enlarged on bail on
12.06.2003 and the trial is in progress. That apart, the second
respondent has made successive complaints to the Lokayukta
against the appellant which were all held to be baseless and false.
This factual background which was not disputed coupled with the
fact that the second respondent Halakatte initiated the writ
petition as President of the 1st respondent Union which had
ceased to be a registered trade union as early as on 02.11.1992
suppressing the material fact of its registration having been
cancelled, making allegations against the appellant which were
no more than the contents of the complaints filed by him before
the Authorities which had been found to be false after thorough
investigation by the Karnataka Lokayukta would unmistakably
establish that the writ petition initiated by the respondent Nos. 1
and 2 lacked in bonafides and it was the outcome of the malice
and ill-will the 2nd respondent nurses against the appellant.
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Having regard to this aspect of the matter, the High Court ought
to have dismissed the writ petition on that ground alone and at
any event should have refused to issue a Quo Warranto which is
purely discretionary. It is no doubt true that the strict rules of
locus standi is relaxed to an extent in a Quo Warranto
proceedings. Nonetheless an imposture coming before the Court
invoking public law remedy at the hands of a Constitutional Court
suppressing material facts has to be dealt with firmly.
50. This Court in Dr. B. Singh vs. Union of India and Others,
(2004) 3 SCC 363 held that only a person who comes to the Court
with bonafides and public interest can have locus. Coming down
heavily on busybodies, meddlesome interlopers, wayfarers or
officious interveners having absolutely no public interest except
for personal gain or private profit either of themselves or as a
proxy of others or for any other extraneous motivation or for
glare of publicity, this Court at para 14 of the report held as
under:-
“The court has to be satisfied about: (a) the credentials of
the applicant; (b) the prima facie correctness or nature of
information given by him; and (c) the information being
vague and indefinite. The information should show gravity
and seriousness involved. Court has to strike a balance
between two conflicting interests: (i) nobody should be
allowed to indulge in wild and reckless allegations
besmirching the character of others; and (ii) avoidance of
public mischief and to avoid mischievous petitions seeking
to assail, for oblique motives, justifiable executive actions.
In such case, however, the court cannot afford to be
liberal. It has to be extremely careful to see that under the
guise of redressing a public grievance, it does not
encroach upon the sphere reserved by the Constitution to
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ruthlessly while dealing with imposters and busybodies or
meddlesome interlopers impersonating as public spirited
holy men. They masquerade as crusaders of justice. They
pretend to act in the name of pro bono publico, though
they have no interest to the public or even of their own to
protect.”
83. Although the petitioners (in CWP-1649-2019) have also
raised questions about the 15 years’ experience claimed to be possessed
by Dr. Dheeraj Sharma, and, also submitted before this Court that his
Bachelor’s/Master’s and MBA degrees are surrounded by suspicious
circumstances, however, such plea is not substantiated by any cogent
evidence, viz., any inputs from the respective Universities or Colleges
depicting that his Bachelor’s/Master’s and MBA degrees are forged and
fabricated. Merely because some suspicion has been cast, it does not act
for this Court to, in exercise of writ of quo warranto, order a roving and
fishing enquiry. Precisely, the above is not the scope of the writ of quo
warranto. The Hon’ble Supreme Court has, in J. Jeyakumaran‘s case
(supra), clearly held that, it cannot be a purpose of the Writ of Quo
Warranto to carry out a roving enquiry to find some reason or other to
unseat any office bearer.
84. In summa, this Court is of the opinion that, the present writ
of quo warranto is not maintainable against Dr. Dheeraj Sharma, as he
validly assumed the office of Director, I.I.M., Rohtak, post his selection/
recommendation by the S.C.S.C. under the category “nomination from
eminent person”. In this way, question no. (iv) is answered in negative.
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FINAL ORDER
85. In view of the above, the writ of quo warranto (CWP-
1649-2019) is dismissed, and, the writ (CWP-7608-2022) preferred by
Dr. Dheeraj Sharma against the impugned show cause notice is
allowed. The impugned show cause notice is set aside on account of its
being issued by an authority lacking able jurisdiction.
86. Pending application(s) stand disposed of accordingly.
87. A photocopy of this order be placed on file of each
connected case.
(KULDEEP TIWARI)
April 22, 2025 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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