Madhya Pradesh High Court
Sandeep Kumar Upadhyay vs Atal Bihari Bajpai Indian Institute Of … on 20 April, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
WRIT PETITION No. 4714 of 2021
SANDEEP KUMAR UPADHYAY
Versus
ATAL BIHARI BAJPAI INDIAN INSTITUTE OF INFORMATION
TECHNOLOGY AND MANAGEMENT THR. AND OTHERS
WITH
WRIT PETITION No. 21255 of 2021
SANDEEP UPADHYAY
Versus
UNION OF INDIA AND OTHERS
Appearance:
Mr. Prashant Singh Kaurav - Advocate for the petitioner.
Mr. Sankalp Sharma - Advocate for respondent no.2.
ORDER
Reserved on : 09.04.2026
Delivered on : 20.04.2026
ORDER
The petitioner was earlier working as Manager in HRMS Department of
State Bank of India.
2. The Atal Bihari Vajpayee- Indian Institute of Information, Technology &
Management, Gwalior, (hereinafter referred as ‘Institute’) issued an advertisement
on 07.09.2018, inviting applications for appointment on one post of Deputy
Registrar and two posts of Assistant Registrar in the Institute. The post of
Assistant Registrar carried PB-3 of Rs.15600-39100 + GP Rs.5400/-. The
petitioner applied for the post of Assistant Registrar and after selection by the
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selection committee, he was appointed on the said post vide order, dated
20.02.2019. As per clause 1 of order, the appointment was on probation for a
period of two years which is extendable for further period(s) subject to
satisfactory performance to be assessed by the Institute. The petitioner joined on
the post on 01.06.2019 and started working on the post. The then Director of the
Institute extended benefit of pay protection in favour of the petitioner.
3. It appears that certain complaints were received by Institute regarding
petitioner’s appointment on the post of Assistant Registrar and extending him
benefit of pay protection by giving 10 advance increments. The in-charge Director
of the Institute constituted a five member committee to enquire into the
allegations made in the complaint. The committee deliberated the issue and
submitted its report on 28.07.2020 and recommended as follows:
i. Mr. Sandeep Upadhyay on his own free will applied to the post
of Assistant Registrar with the given pay scale, his past service is not
transferred to the institute, both the posts and asosicated pay scales are
independent and other candidates have similar years of work
experience. Therefore, advance increments recommended to Mr.
Sandeep Upadhyay needs to be reconsidered.
ii. If selection process is in contravention of both Norm-1 and
Norm-2, described as above, then the selection needs be reconsidered
and new selection based on fair, transparent and well laid-down
process may be considered.
4. Relying upon aforesaid recommendations, the in-charge Director passed
following directions on 24.12.2020:
i. additional increments given Mr. Sandeep Upadhyay be withheld
till further orders;
ii. the selection process etc. be reviewed by an external committee;
iii. the probation period of ARs be extended for 1 years/till further
orders.
5. Accordingly, the benefit of pay protection given to the petitioner was
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withheld with effect from December’ 2020. The petitioner served a legal notice to
the Institute, however when no response was received, he filed W.P. No.4717 of
2021 praying for a declaration that the action of respondents in deducting pay
protection is illegal and arbitrary. He also prayed for a direction to the respondents
to release the benefit of pay protection in his favour alongwith interest.
6. The petitioner claims that he is entitled to his pay protection in view of
O.M. dated 10.10.1989 & 28.07.2017, issued by Govt. of India, Ministry of
Personnel, Public Grievances & Pensions, Department of Personnel & Training,
New Delhi. It is his submission that the regular Director of the Institute granted
him the benefit of pay protection and accordingly fixed his pay on the post of
Assistant Registrar, however, after the regular Director demitted the office on
completion of his tenure on 31.07.2019, the in-charge Director stopped his salary
for the month of December’ 2020. He alleges violation of principles of natural
justice inasmuch as no opportunity of hearing is given to the petitioner before
withholding benefit of pay protection.
7. Pursuant to the directions issued by in-charge Director on 24.12.2020, the
Registrar of the Institute passed order, dated 14.09.2021, whereby petitioner’s
period of probation was extended until further orders and the matter was directed
to be placed before the Board of Governors (BoG) for consideration, review and
decision. The petitioner thus filed the other writ petition being W.P.
No.21255/2021 challenging the order of extension of his probation period, dated
14.09.2021.
8. While the aforesaid writ petitions were pending before this Court, a
committee of four members was constituted by in-charge Director vide order
dated 01.02.2022. As noted by committee, the issues placed for its consideration
were- incorrect selection of petitioner on the post of Assistant Registrar, grant of
10 advance increments and extension of probation period. The committee
submitted its report on 22.02.2022 whereby following recommendations were
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made:
“Recommendations of the committee
Selection of Assistant Registrar was not made by awarding marks in each
component of evaluation and by preparing cumulative merit list. Further,
appointment of Assistant Registrar is not in line with rules described in the
Statute of ABV-IIITM Gwalior operating w.e.f. 02 December 2016.
Therefore, appointment of Assistant Registrars may be quashed and fresh
appointments should be made in accordance with the Statutes of ABV-
IIITM Gwalior.”
9. The Chairman of committee submitted executive summary of committee
report which is placed on record of W.P. No.4741/21 vide I.A. No.4038/26. The
recommendations so made by the committee were placed before the BoG in its
46th meeting held on 23.03.2022. However, since the matter is sub-judice before
this Court, no final decision was taken and the Board only advised to emphatically
peruse case with the counsel to defend the case on behalf of Institute.
10. Recently, the petitioner has been served with a show cause notice, dated
17.03.2026, which has been brought on record vide I.A. No.4038/26 filed in W.P.
No.4714/21. The petitioner has been asked to show cause about his selection and
appointment and also regarding his claim for pay protection.
11. By amending W.P. No.21255/21, the petitioner has challenged committee
recommendations dated 24.12.2020, (Annexure P/7). The parties have completed
their respective pleadings. Therefore, with the consent of parties, the matter is
heard finally.
12. Challenging the impugned action of the respondents, the learned counsel
for the petitioner argued that pursuant to M.O, dated 10.10.1989 & 28.07.2017,
issued by Govt. of India, Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel & Training, New Delhi, the benefit of pay protection
was rightly extended to him by the regular Director. However, the in-charge
Director illegally withheld the said benefit without affording opportunity of
hearing to the petitioner. It is his submission that withholding said benefit is also
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beyond the competence of the in-charge Director.
13. The learned counsel also challenged the impugned order of extension of
petitioner’s probation period on the ground that there is no dissatisfaction
recorded by the Institute with regard to his performance and, therefore, there is no
reason for not confirming the petitioner in service and instead extending his
probation period for indefinite period. It is his submission that the impugned order
is wholly non-speaking and also do not prescribe any period for which probation
has been extended. He also submitted that the petitioner’s appointing authority is
the BoG, the in-charge Director is not competent to extend the probation period
till further orders. He also submitted that no opportunity of hearing is afforded to
petitioner before passing impugned order of extension of probation period.
14. The learned counsel for petitioner further submitted that the
recommendation by the committee and subsequent report are prepared under the
influence of Prof. Rajendra Sahu without any authority in law. It is his submission
that his appointment was duly ratified by the BoG and, therefore, the in-charge
Director has no authority to reopen and re-examine the selection process. As per
his submissions, the entire action taken against the petitioner, in both the writ
petitions, is illegal, without jurisdiction and also suffers with malafide.
15. The learned counsel for petitioner also argued that the petitioner’s selection
has been made as per the selection procedure prescribed in the advertisement. He
submitted that the written test was only a qualifying test and therefore, merely
because the candidates who obtained more marks in written test were not
ultimately selected, is not a ground for questioning petitioner’s appointment. The
learned counsel also argued that the petitioner has left his earlier assignment in
SBI and has joined the present post. Therefore, the respondents cannot be allowed
to re-examine the petitioner’s appointment and throw him out of job. In support of
his submission, the learned counsel placed reliance upon Division Bench
judgment of this Court rendered in the case of Sanjeev Yadav & ors. vs.
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Lakshmibai National Institute of Physical Education & ors. reported in 2008
SCC Online MP 1011.
16. Refuting the submissions made by petitioner’s counsel, the learned counsel
for the respondents supported the impugned action of the Institute. He, at the
outset, raised an objection regarding maintainability of this petition as the same is
pre-mature. As per his submission, no final decision has yet been taken in the
matter and, therefore, cause of action for filing this petition has yet not arisen. He
submitted that the BoG did not take final decision as the matter is sub-judice
before this Court. Further, the petitioner has been served with a show cause notice
on 17.03.2026 and, therefore, he should submit his explanation to the same.
17. On merits, the learned counsel submitted that the pay scale of the post is
duly mentioned in the advertisement as also in the appointment order of petitioner.
There was no assurance given to him regarding his pay protection. As per his
submission, the petitioner is bound by the terms of advertisement and appointment
order and is estopped from claiming pay scale more than what was agreed
between the parties. The learned counsel also submitted that the overall
emoluments being paid to the petitioner in the Institute are much more than what
he was getting in SBI. To illustrate, he referred to salary slip for the month of
May’ 2019 (filed at page 23 of W.P. No.4714/21) in SBI, and submitted that the
petitioner was getting basic pay of Rs.50,030/- plus DA of Rs.34,770/- (total
Rs.84,800/-), whereas in the Institute the petitioner is getting basic pay of
Rs.75,400/- plus DA of Rs.12,818/- (total Rs.88,218/-). Besides this, the petitioner
is also getting transport allowance with DA, HRA and contribution to NPS. He
thus submitted that the petitioner is getting more than what he was getting in SBI
and therefore, question of protecting his pay does not arise.
18. The learned counsel pointed out that there is no order passed in this regard
by BoG which is competent to take decision in this regard nor any such order is
passed by Director.
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19. The learned counsel for respondents also submitted that the proper
procedure was not followed in the matter of selection and the candidates, who
secured more marks then petitioner in written test, were left out and the petitioner
was selected. He also submitted that constitution of selection committee was also
not as per Statute. He thus justified the recommendation made by the committee
constituted for examining the selection process for cancellation of petitioner’s
appointment and for making fresh appointment after following due process of law.
20. The learned counsel also submitted that the appointment was ultimately to
be made by BoG, however, in this case, the matter was never placed before BoG
and, therefore, his appointment is bad in law since inception. In support of his
submission, he relied upon Apex Court judgment rendered in the case of State of
Orissa & another vs. Mamata Mohanty reported in (2011)3 SCC 436 and also in
the case of National Institute of Technology & another vs. Pannalal Choudhury
& another reported in (2015)11 SCC 669.
21. Regarding competence of in-charge Director, the learned counsel submitted
that the in-charge Director is competent to exercise all the powers of Director and,
therefore, there is no defect of jurisdiction in the action taken by Director. As per
his submission, infact no final decision has been taken by the Director and,
therefore, the objection raised by the petitioner regarding his competence is
unfounded and unsustainable. In support of his submissions, the learned counsel
relied upon Apex Court judgment in the case of Gopalji Khanna vs. Allahabad
Bank reported in (1996)3 SCC 538, judgment of coordinate bench of this Court in
the case of Pooran Singh vs. State of M.P. & ors. in W.P. No.42286/2025. The
learned counsel thus prayed for dismissal of the writ petitions.
22. Considered the arguments and perused the records.
23. Based upon the pleadings and the arguments advanced on behalf of both the
sides, following issues arises for consideration of this Court:
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i. Whether there is any inherent defect in selection and appointment of
petitioner warranting cancellation of his appointment?
ii. Whether the petitioner is entitled to protection of his pay and the benefit
already given to him in this regard is required to be restored?
iii. Whether the decision of respondents to extend the probation period of
petitioner till further orders is legal and valid?
Applicable Act and the Rules:
24. The operations and functions of Institute are governed by ‘Indian Institutes
of Information Technology Act, 2014, (in short ‘Act’). The applicability of the Act
is not disputed by either of the parties. The Institute has been established under
Section 4(1) of the Act. As per Section 13(1), the BoG is the principal executive
body of Institute. Section 15 of the Act lays down the powers of the BoG. Section
32 of the Act provides of appointment of staff. For purposes of the post of
Assistant Registrar, BoG is the appointing authority.
25. Further, as per Section 24 of the Act, the Director of the Institute is to be
appointed by the Central Govt. As per Section 24(4), the Director is the principal
academic and executive officer of the Institute and is responsible for the
implementation of the decisions of the Board and senate and day-to-day
administration of the Institute. He is authorized to exercise such powers and
perform such duties as may be assigned to him by the Act or the Statutes or
delegated by the Board or the Senate or the Ordinances. While objecting to the
competence of in-charge Director, the learned counsel for petitioner relied upon
Section 24(7) which reads as under:
“(7) The Director may during his absence from the headquarters,
authorise the Deputy Director or one of the Deans or the senior most
Professor present, to sanction advances for travelling allowances,
contingencies and medical treatment of the staff and sign and
countersign bills on his behalf and authorise to the Deputy Director
or one of the Dean or the senior most Professor present, by him in
writing.”
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26. In exercise of powers conferred on it by Section 33 read with Section 34 of
the Act, the BoG of the Institute, with the prior approval of Visitor, has made
Statute of the Institute which named as “The First Statutes of the Atal Bihari
Vajpayee- Indian Institute of Information Technology & Management, Gwalior,
(in short ‘Statute’). Rule 2(b) of Statute defines ‘Appointing Authority’ to mean
the Board, if the appointment is made on the academic staff in the post of
Assistant Professor or above or if the appointment is made on the non-academic
staff in every cadre, the maximum of the pay sale for which exceeds prevalent
grade pay scale for Group A Officers and the Director, in any other case. Thus, by
virtue of this clause also, the petitioner’s appointing authority is the BoG.
27. Rule 9 of Statute deals with the manner of making appointment in Institute.
Rule 9(1) & (5) are relevant for decision of this case and the same reads as under:
“9. Appointments.- (1) All faculty posts at the Institute shall be filled
by an open advertisement in accordance with the procedures of the
Government of India and all other positions shall be filled as per the
recruitment rules of the institute approved by the Board and all
services rendered by Group D level shall be made by outsourcing or
contract.
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(5) The Selection Committee in the case of the post of Associate
Professor including one-contract, Librarian, Deputy Librarian,
Assistant Librarian, Registrar, Deputy Registrar, Assistant Registrar,
Institute Engineer, Sports Officer, Assistant Sports Officer, Chief
Medical Officer, Medical Officer, Accounts Officer, Audit Officer,
Estate Officer shall be as under:-
(i) “The Director – Chairperson:
(ii) Two experts nominated by the Board — Members;
(iii) One expert nominated by the senate – Member;
(iv) The Head of the Department or Centre or School or Unit
concerned, if the post for which selection is being made is
lower in status than that occupied by the Head of the
Department or Centre or School or Unit, or, the Chairperson,
Senate Library Committee of the Institute, for the posts of
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10administrative or sports or medical or engineering or
accounts or audit or estate expert of appropriate level to be
nominated by the Board for the post of Registrar or Sports
Officer or Chief Medical Officer or Institute Engineer or
Accounts Officer or Audit Officer or Estate Officer.
(v) Registrar, for the post of Deputy Registrar and Assistant
Registrar or Sports Officer for the post of Assistant Sports
Officer or Chief Medical Officer for the post of Medical
Officer.
Note: One Scheduled Castes or Scheduled Tribes member needs to
be nominated by the Board, if none of other members belong to
Scheduled Castes or Scheduled Tribes category.”
Issue No.1- Objection regarding process of selection:
28. The advertisement was published on 07.09.2018. Clause 12 thereof
provides as under:
“12. The Institute may conduct Written Test/Computer Test/Power
Point Presentation on some topics/interview and only those
candidates who qualify the said tests may be called for interview.”
29. From the aforesaid, clause it becomes evident that written test was
conducted only as a qualifying test and whosoever qualified written test, was
called for interview. “Qualifying test” refers to a test which when passed, makes
the candidate eligible for appointment. The purpose of a qualifying examination is
not to determine the comparative inter-se merit of the candidates but to judge their
suitability for the post. When the minimum prescribed benchmark is secured in
the qualifying test, it confers eligibility on those who secure the minimum
benchmark. Meaning thereby, after having qualified for interview, the final
selection was to be made based upon the marks obtained by candidates in
interview. This appears to be the scheme for selection as per the advertisement.
30. The copy of selection proceedings are placed on record by learned counsel
for the respondents. It is borne out from the proceedings that:
i. The Joint Registrar on 15.10.2018 moved the note-sheet for constitution of
committee for shortlisting the applications received for the post of AssistantSignature Not Verified
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11Registrar.
ii. The Registrar vide note-sheet dated 25.10.2018 constituted committee of
three members for shortlisting the applications for 2 posts of Assistant Registrar.
This was done with the approval of competent authority.
iii. On 10.11.2018, the committee held its meeting. The committee noted in its
minutes that statement of details of each candidate is prepared and based on the
criteria of shortlisting, as mentioned in advertisement and recruitment rules as
provided by the Institute, 216 candidates were shortlisted out of total 227
candidates.
iv. About 142 candidates appeared in written test held on 25.12.2018 in
Institute premises. In order to maintain fairness and transparency, the invigilators
from the internal and external institutions were invited. The committee has noted
that written test consisted of total 100 multiple choice questions with time limit of
90 minutes. Each question carried 1 mark with no negative marking. The question
booklet was prepared in four different series to avoid copying. It is also recorded
that the committee constituted by Director oversaw conduct of written test and
evaluation of answers. For further shortlisting of candidates, the committee fixed
minimum 60% marks as qualifying cut-off and accordingly, 13 candidates were
recommended for next round of selection process. The petitioner is at serial no.12
with 60% marks.
v. Vide note-sheet dated 17.01.2019, the recommendation of committee was
placed before Director for his approval and for fixing date of interview. The
Director fixed 1/2.02.2019 for interview.
vi. The Registrar vide letter, dated 22.01.2019, requested Col. S.M. Mehta,
Former Registrar, IIT(SM) Dhanbad, NOIDA to be the expert member of
interview committee. This was also approved by Director.
vii. The committee consisting of five members, including Prof. Rajendra Sahu,
in-charge Director, acting as Chairman of Selection Committee, interviewed 13
candidates and approved the names of two candidates for two posts. One was the
petitioner. This was approved by the Director.
31. It is thus seen that the in-charge Director Prof. Rajendra Sahu has duly
participated in the selection process as Chairman of selection committee. Out of
227 applications received, 216 were initially shortlisted based upon their
qualification. Further shortlisting was done on the basis of cut-off marks fixed in
written test. As against 2 posts, 13 candidates were shortlisted who scored cut-off
marks of 60% in written test. The selection committee then interviewed 13
candidates and selected 2 candidates including the petitioner. There is no
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allegation of favoritism made by any unsuccessful candidate. Nobody has
come forward to challenge the appointment of petitioner.
32. After the complaints were received, the in-charge Director, Prof. Rajendra
Sahu (who was Chairman of interview committee), constituted a committee of
five members which gave its report on 28.07.2020 and based upon its
recommendation, the benefit of pay protection was withheld and his probation has
been extended till further orders. This committee in its recommendation took note
of the fact that the petitioner obtained low marks in the written test and very high
marks obtained by other candidates.
33. The Chairperson of this committee forwarded executive summary of
committee report. In this summary, he has heavily relied upon the Apex Court
judgment rendered in the case of Secretary, State of Karnataka vs. Uma Devi,
(2006)4 SCC 1, to hold that any selection made without following procedure is
illegal. Surprisingly, the appointment of petitioner on the post of Assistant
Registrar has been put at par with regularization of a daily wager who is engaged
without following any procedure. In view of description of selection process
noted above, it cannot be said that the petitioner is appointed without following
any selection process. The approach of the Chairperson of the committee is,
therefore, wholly misconceived and is not acceptable.
34. After this, the matter was placed before yet another committee consisting of
four members constituted by in-charge Director, Prof. Rajendra Sahu, vide order
dated 01.02.2022. The committee deliberated on the issue in its meeting held on
22.02.2022. The committee pointed out certain defects in the selection process.
The committee was influenced by the fact that candidates who secured more
marks in written test, were left out and the petitioner who secured only 60%, was
selected and appointed. In this regard, as observed above, the written test was a
qualifying test, and therefore, whosoever secured bench mark fixed for written
test, is called for interview. It is not always necessary that a candidate who
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secured very good marks in written test would also perform well in interview.
Therefore, after having qualified in written test with lower marks than others, if
the petitioner is selected in interview based upon his performance, the same
cannot be said to be illegal.
35. The committee has also pointed out defect in constitution of selection
committee inasmuch as the Director has to be the Chairman of the committee.
However, in this case the then Director delegated his power to Prof. Sahu, who
presided the committee. This, at best, can be said to be an irregularity in
constitution of selection committee, however, would not vitiate the selection when
no unsuccessful candidate challenged the same.
36. The committee also observed that after selection, the matter was not placed
before the BoG for its ratification. This is stated to be violation of Rule 9(10) of
Statute. However, this is found to be factually incorrect inasmuch as the selection
of petitioner was duly ratified by the BoG in its 43 rd meeting held on 20.07.2019.
Thus, even if it is presumed that there was some defect of constitution of selection
committee, the same stood rectified with ratification of process by BoG.
37. In the case of Pannalal Choudhury (supra), the Apex Court was dealing
with dismissal of Registrar/Deputy Registrar (Accounts) of a National Institute of
Technology (NIT). The High Court allowed the appeal and set aside the order of
dismissal on the ground that BoG is competent to pass the said order. The Apex
Court did not approve the order of High Court and held as under:
“18.4. In the fourth place, it was contended that the entire action in
question having been approved or/and ratified by the BoG in their
last meeting held on 22-8-1996, whatever so-called defects even if
existed in the departmental proceedings including passing of the
dismissal order on 16-8-1996, the same stood ratified by the BoG in
their meeting held on 22-8-1996 and hence no fault can be noticed
in the proceedings.
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21. At the threshold, it is noticed that in the writ petition, the
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14respondent had taken several grounds to challenge the dismissal
order on merits. However, a perusal of the order of the writ court
would show that the writ petitioner did not press any of the grounds.
The only ground, which he pressed, while prosecuting the writ
petition, was that the order of dismissal was passed by the Principal
and Secretary of NIT, who had no authority to pass such order. Since
the authority to dismiss the respondent vested in the BoG of NIT
under the Rules and hence the dismissal order was bad in law. In
view of the fact that the respondent did not press any of the grounds
before the High Court except the one mentioned above we need not
go into any of the grounds. The only issue the High Court was called
upon to decide was whether the removal of the respondent from
service was by the competent authority?
22. The High Court, as mentioned above, allowed the writ petition
holding that the impugned order of dismissal dated 16-8-1996 was,
in fact passed by the Principal and Secretary, who had no authority
to pass such order under the Rules. It was held that the competent
authority to pass the dismissal order under the Rules was the BoG.
The High Court accordingly set aside the order of dismissal with a
direction to grant all consequential service benefits to the
respondent. In the appeal filed by the appellant, the Division Bench
concurred with the view taken by the Single Judge and accordingly
dismissed the appellant’s appeal, giving rise to filing of this appeal
by the appellant (Management).
*** *** ***
28. That apart, the issue in question could be examined from yet
another angle by applying the law relating to “ratification” which
was not taken note of by the High Court.
29. The expression “ratification” means “the making valid of an act
already done”. This principle is derived from the Latin maxim
“ratihabitio mandato aequiparatur” meaning thereby “a subsequent
ratification of an act is equivalent to a prior authority to perform
such act”. It is for this reason, the ratification assumes an invalid
act which is retrospectively validated.
30.The expression “ratification” was succinctly defined by the
English Court in one old case, Hartman v, Hornsby [Hartman v.
Hornsby, 142 Mo 368 : 44 SW 242 at p. 244 (1897)] as under:
‘Ratification’ is the approval by act, word, or conduct, of
that which was attempted (of accomplishment), but
which was improperly or unauthorisedly performed in
the first instance.”
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31. The law of ratification was applied by this Court in Parmeshwari
Prasad Gupta v. Union of India [Parmeshwari Prasad
Gupta v. Union of India, (1973) 2 SCC 543]. In that case, the
Chairman of the Board of Directors had terminated the services of
the General Manager of a Company pursuant to a resolution taken
by the Board at a meeting. It was not in dispute that the meeting had
been improperly held and consequently the resolution passed in the
said meeting terminating the services of the General Manager was
invalid. However, the Board of Directors then convened subsequent
meeting and in this meeting affirmed the earlier resolution, which
had been passed in improper meeting. On these facts, the Court
held: (SCC pp. 546-47, para 14)
“14. … Even if it be assumed that the telegram and the
letter terminating the services of the appellant by the
Chairman was in pursuance of the invalid resolution of
the Board of Directors passed on 16-12-1953 to
terminate his services, it would not follow that the action
of the Chairman could not be ratified in a regularly
convened meeting of the Board of Directors. The point is
that even assuming that the Chairman was not legally
authorised to terminate the services of the appellant, he
was acting on behalf of the Company in doing so,
because, he purported to act in pursuance of the invalid
resolution. Therefore, it was open to a regularly
constituted meeting of the Board of Directors to ratify
that action which, though unauthorised, was done on
behalf of the Company. Ratification would always relate
back to the date of the act ratified and so it must be held
that the services of the appellant were validly terminated
on 17-12-1953.”
This view was approved by this Court in High Court of Judicature of
Rajasthan v. P.P. Singh [High Court of Judicature of
Rajasthan v. P.P. Singh, (2003) 4 SCC 239 : 2003 SCC (L&S) 424] .
32. The aforesaid principle of law of ratification was again applied
by this Court in Maharashtra State Mining
Corpn. v. Sunil [Maharashtra State Mining Corpn. v. Sunil, (2006) 5
SCC 96 : 2006 SCC (L&S) 926] . In this case, the respondent was an
employee of the appellant Corporation. Consequent to a
departmental enquiry, he was dismissed by the Managing Director of
the appellant. The respondent then filed a writ petition before the
High Court. During the pendency of the writ petition, the Board of
Directors of the appellant Corporation passed a resolution ratifying
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16
the impugned action of the Managing Director and also empowering
him to take decision in respect of the officers and staff in the grade
of pay the maximum of which did not exceed Rs 4700 p.m. Earlier,
the Managing Director had powers only in respect of those posts
where the maximum pay did not exceed Rs 1900 p.m. The respondent
at the relevant time was drawing more than Rs 1800 p.m. Therefore,
at the relevant time, the Managing Director was incompetent to
dismiss the respondent. Accordingly, the High Court held
[Sunil v. Maharashtra State Mining Corpn., 2005 SCC OnLine Bom
758 : (2006) 1 Mah LJ 495] the order of dismissal to be invalid. The
High Court further held that the said defect could not be rectified
subsequently by the resolution of the Board of Directors. The High
Court set aside the dismissal order and granted consequential relief.
The appellant then filed the appeal in this Court by special leave.
Ruma Pal, J. speaking for the three-Judge Bench, while allowing the
appeal and setting aside the order of the High Court held as under:
(Sunil case [Maharashtra State Mining Corpn. v. Sunil, (2006) 5
SCC 96 : 2006 SCC (L&S) 926] , SCC pp. 96g-h & 97a-b)
“The High Court rightly held that an act by a legally
incompetent authority is invalid. But it was entirely wrong in
holding that such an invalid act could not be subsequently
‘rectified’ by ratification of the competent authority.
Ratification by definition means the making valid of an act
already done. The principle is derived from the Latin
maxim ratihabitio mandato aequiparatur, namely, ‘a
subsequent ratification of an act is equivalent to a prior
authority to perform such act’. Therefore, ratification assumes
an invalid act which is retrospectively validated.
***
In the present case, the Managing Director’s order dismissing the
respondent from the service was admittedly ratified by the Board of
Directors unquestionably had the power to terminate the services of
the respondent. Since the order of the Managing Director had been
ratified by the Board of Directors such ratification related back to
the date of the order and validated it.”
33. Applying the aforementioned law of ratification to the facts at
hand, even if we assume for the sake of argument that the order of
dismissal dated 16-8-1996 was passed by the Principal and
Secretary who had neither any authority to pass such order under
the Rules nor was there any authorisation given by the BoG in his
favour to pass such order yet in our considered view when the BoG
in their meeting held on 22-8-1996 approved the previous actions of
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17the Principal and Secretary in passing the respondent’s dismissal
order dated 16-8-1996, all the irregularities complained of by the
respondent in the proceedings including the authority exercised by
the Principal and Secretary to dismiss him stood ratified by the
competent authority (Board of Governors) themselves with
retrospective effect from 16-8-1996 thereby making an invalid act a
lawful one in conformity with the procedure prescribed in the Rules.
34. In such circumstances, the respondent’s grievance that the
dismissal order had not been passed by the competent authority i.e.
the BoG no longer survived.”
38. The facts of this case are to be examined keeping in view the aforesaid legal
position. The learned counsel for respondents has produced before this court copy
of agenda no. BOG/43/07 placed before BoG in its 43 rd meeting held on
10.07.2019. The list of appointment and joining of candidates in teaching and
non-teaching posts were placed for information and ratification of BoG. The BoG
duly ratified the agenda on 10.07.2019. Thus, the requirement of Rule 9(1) of
Statute stood satisfied. Further, the defect, if any, in constitution of selection
committee also stood rectified with ratification of selection and appointment by
BoG.
39. This Court is conscious about its restricted and limited scope of interference
in the matter of selection. However, this is a case where, pursuant to the
advertisement issued by the Institute, the petitioner left his earlier job in SBI and
has joined in the Institute after his selection by the selection committee. If his
appointment is cancelled by respondents by taking shelter of certain insignificant
factors, the petitioner would be nowhere as his earlier job is also not with him.
Therefore, this Court has minutely examined the observations made by the
committee.
40. At this stage, it is profitable to refer to the Division Bench judgment of this
Court in the case of Sanjeev Yadav (supra). Dealing with somewhat similar
situation, the Division Bench held as under:
“7. In pursuance of the directions issued by Division Bench in the
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18above PIL, said Rajendra Tayal submitted a representation to the
institution and higher authorities for cancellation of appointments of
the Said representation was considered by the Board of Management
in its meeting dated 30th May, 2005 and the Board of Management
found that the selection committee was not properly constituted. The
Selection committee constituted by the Vice Chancellor was contrary
to the rules of the institution and therefore, show cause notice was
issued to the appellants petitioners on 31/5/2002. The appellants
petitioners after service of the show, cause notice requested the
Board of management to supply certain documents. However, those
documents were never supplied. The appellants petitioners filed their
reply to the show cause notice and the Board of Management after
considering their reply has found that the Selection Committee was
contrary to Rule 23 of the MOA, hence, terminated the appointments
of the appellants, petitioners.
*** *** ***
19. The writ Court has not found anything against the appellants
petitioners so far as their merits are concerned. Since there is no
finding about bias, therefore, selection of the appellants is set aside
only on the ground that the Selection. Committee was not in
accordance with the rules. Even assuming for a moment that the
Selection Committee was not constituted strictly in accordance with
the rules, still the question is whether that itself will be a ground for
terminating the services.
20. The contention of the learned counsel for the respondents is that
if the selection committee is not constituted in accordance with the
rules referred to above, then the entire selection process will be
vitiated. For this purpose, he referred to the judgment of this Court
in the case of Salam Mani Singh (Dr.) v. Lakshmibai National
Institute of Physical Education, (2002) 2 JLJ 391. In para 32 of the
judgment, this Court has held that due to illegal constitution of the
Selection Committee, entire selection process vitiates.
21. Another judgment on the question is in the case of Jagdish Singh
Gurjar v. State of M.P., (WP 839/2003 decided on 30/7/2005)
decided by one of us (S. Samvatsar, J.) in which also this Court has
held that a member who was not competent to be a member of the
Selection Committee if participates in the selection process, then the
entire selection process vitiates.
22. From perusal of the aforesaid judgments, it appears that in all
cases challenge to the selection was made by unsuccessful
candidates and allegations of causing prejudices were present. In
the present case, the selection process is not challenged by any of the
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19candidates and the appointments of the appellants petitioners are
cancelled by the management itself, that too, after lapse of about
three and half years. No objection to the selection process was taken
by any of the candidates nor the management. One Rajendra Tayal
who filed the PIL was not even a staff member of the institute nor he
was a connected, in any manner, to the selection process. He had
filed the PIL only as a social worker.
23. It is pertinent to point out that all the members who had
participated in the selection process were from the Panel prepared
for that purpose. All the members were inducted by the then Vice
Chancellor and there are no allegations that these persons were not
qualified to be the members of the Selection process or have acted in
a manner prejudicial to the interest of the Institute.
*** *** ***
25. The Apex Court in the case of Chandra Prakash
Tiwari v. Shakuntala Shiikla, (2002) 6 SCC 127 : AIR 2002 SC 2322,
has considered the question about promissory estoppal in the matter
of selection process. In para 32 of the said judgment, after
considering large number of judgments, the Apex Court has laid
down that:
“In conclusion/this Court recorded that the issue of
estoppal by conduct can only be said to be available in the
event of there being a precise and unambiguous
representation and it is on that score a further question
arises as to whether there was any unequivocal assurance
prompting the assured to alter his position or status the
situation, however, presently does not warrant such a
conclusion and we are thus not in a position to lend
concurrence to the contention of the learned counsel
pertaining the doctrine of Estoppal by conduct. It is to be
noticed at this juncture that while the doctrine of estoppal
by conduct may not have any application but that, does not
bar a contention as regards the right to challenge an
appointment upon due participation at the
interview/selection. It is a remedy which stands barred and
it is in this perspective in Om Prakash Shukla (Om
Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC
285) a Three Judge Bench of this Court laid down in no
uncertain terms that when a candidate appears at the
examination without protest and subsequently found to be
not successful in the examination, question of entertaining
a Petition challenging the said examination would not
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20arise.
Thus, the Apex Court has laid down that challenge to the selection
committee by a candidate appearing in the examination should be
entertained before he has participated in the proceedings. This
principle is laid down by the Apex Court on the principle that rules
cannot be challenged after the game is over; one has to challenge
the rules before participating in the game. This principle is laid
down by the Apex Court in respect of candidates who at number of
times have not processed defect in the constitution of selection
committee.
26. However, in the present case, the Vice Chancellor himself had
constituted the selection committee and the members who were
within the knowledge about the defect in the selection committee
have slept over the matter for about three and half years after
appointments were made. Thus, the members have acquiesce
themselves and have no right to challenge the appointment, on the
ground of selection when the appellants petitioners who are the
candidates from outside the State of Madhya Pradesh have got their
appointments and altered their position by leaving other jobs
available to them. Therefore, in the present case, this principle will
apply with greater force and hence, their appointment could not
have been cancelled by the Institute after a lapse of about more than
three and half years on the ground that the committee which selected
them was not in accordance with the rules.”
41. Like in the case of Sanjeev Yadav (supra), in this case also, the challenge to
the petitioner’s appointment is not made by any unsuccessful candidate. There is
no allegation of any favoritism shown to him by selection committee. Further,
there is no dispute about his satisfying the requisite qualification for the post. The
committee has not found anything against the petitioner. Though certain
observations have been made by committee against petitioner, however, those
observations relates to period after his appointment. Further, most importantly, the
petitioner has joined the present post after leaving his earlier job in SBI.
Therefore, the respondents are estopped from questioning his appointment
pursuant to the advertisement issued by Institute itself. The petitioner’s position
cannot be altered now when he has materially changed his position based upon his
selection by the Institute unless the illegally is attributed to the petitioner himself.
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21
Merely on the ground that there was some defect in constitution of selection
committee by the then Director, the appointment of petitioner cannot be cancelled.
42. Consequently, this Court is of the firm opinion that the re-examining
petitioner’s selection and appointment on the post of Assistant Registrar by the
committee constituted by in-charge Director is not at all warranted in the facts and
circumstances of the case. Further, no inherent defect is found in the selection of
petitioner which warrants cancellation of his appointment.
Issue no.2: Regarding pay protection of petitioner.
43. The BoG being the appointing authority of the petitioner, the order, if any,
is to be passed by BoG regarding pay protection of the petitioner. Admittedly
there is no such order passed so far by any authority including BoG. What the
petitioner rely upon are only note-sheets which have not culminated into
conscious decision of the Institute. The matter is pending consideration before the
respondents and, therefore, no order needs to be passed in this regard by this
Court at this stage.
Issue no.3: Regarding extension of probation period of petitioner till further
order.
44. The order of confirmation of petitioner’s service is required to be passed by
the competent authority of the Institute based on appraisal of his performance
after joining on the post. Admittedly, no such consideration has been made so far.
In view of the controversy with regard to petitioner’s appointment and grant of
advance increments to him, the period of probation was extended till further
orders. Thereafter, the present writ petitions were pending. Final decision is yet to
be taken by the respondents. Therefore, at this stage, no order needs to be passed
by this Court on this issue also.
45. In view of the discussion made above, these petitions are disposed of with
the following directions:
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i. the respondents are stopped and restrained from enquiring into the validity
of selection and appointment of petitioner on the post of Assistant Registrar;
ii. the W.P. No.4714/21 is disposed of giving liberty to the petitioner to submit
reply to show cause notice dated 17.03.2026, in relation to his claim for protection
of his pay. On filing of reply to show cause, the competent authority of Institute
shall take a decision in the matter by passing and communicating the speaking
order;
iii. the W.P. No.21255/21 is disposed of with direction to the respondents to
consider the matter of probation of petitioner based upon appreciation of his
performance on the post of Assistant Registrar and pass suitable order in this
regard. The respondents shall not be influenced by the finding and
recommendations made by committees which have been discussed hereinbefore
and shall fairly and impartially adjudge petitioner’s suitability for his confirmation
on the post of Assistant Registrar.
(ASHISH SHROTI)
JUDGE
bj/-
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