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2001 DIGILAW 626 (JHR)

Ram Krit Singh v. State Of Jharkhand

2001-09-04

SUDHANSU JYOTI MUKHOPADHAYA

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ORDER S.J. Mukhopadhaya, J. 1. The petitioner has challenged the notification contained in Memo No. 1775 dated 16th June, 2001 issued by the State of Jharkhand, whereby and where-under, the 6th respondent K.K. Khandelwal, I.A.S., on transfer, has been appointed as Director, Science and Technology, Jharkhand Ranchi. 2. As the challenge has been made on a short question of law, it is not necessary to discuss all the facts, except the relevant one. 3. The petitioner who claims to be the seniormost Principal of Government Polytechnics having requisite qualifications prescribed for the teaching post of Professor by the All India Council of Technical Education (AICTE for short) earlier moved before the Patna High Court challenging the Notification dated 19th September, 1995 and 8th September, 1995, whereby and whereunder, the Government of Bihar posted two persons as Project Director and Director, Science and Technology respectively. The case was decided by judgment reported in Dr. Ram Krit Singh v. State of Bihar an others, 1999 (2) BLJ 705. 4. In the aforesaid case, the State Government took plea that the post of Project Director and Director, Science and Technology can only be filled up by the persons holding the post of Principal of Engineering Colleges and Professors in the Engineering Colleges, but it was not accepted by the Court as no material was placed in support of such contention, nor any rule, notification, memorandum or executive instruction was brought to the notice of the Court. In absence of clear guidelines, while the Court expressed inability to give any opinion, but taking into consideration that the posts are not borne on any cadre as they relate to project of temporary nature, disposed of the writ petition with the following directions :-- "(i) The Government must lay down the norms guidelines keeping in view the AICTE norms clearly specifying the category of persons from different departments who are eligible for holding the post of Project Director/Director in the department of Science and Technology to which respondents 4 and 5 have been appointed. These norms must also clearly specify the conditions of eligibility including minimum educational and other qualifications of the candidates who may be deputed to work as Project Director/Director. These norms must also clearly specify the conditions of eligibility including minimum educational and other qualifications of the candidates who may be deputed to work as Project Director/Director. (ii) After the norms and guidelines have been laid down, a panel of officers should be prepared in accordance with paragraph 5 of the memorandum dated 25.10.1980 and suitable persons may be selected from the said panel to work on deputation against the ex-cadre posts of Project Director/Director in the Department of Science and Technology. (iii) Since respondents 4 and 5 have been appointed against the aforesaid posts only till further orders, the Government is directed to lay down the guidelines/norms and complete the process of selection within a period of four months from the date of judgment. After selections are made on the basis of the directions contained herein, the persons so selected shall be deputed to work against the aforesaid posts and respondents 4 and 5, if not selected for deputation, shall revert back to their parent cadre." 5. After reorganisation of the existing State of Bihar and creation of State of Jharkhand, similar posts of Director and Project Director, Science and Technology created for the State of Jharkhand. The 6th respondent K.K. Khandelwal, I.A.S. thereafter appointed as Director, Science and Technology, Jharkhand, Ranchi, vide impugned Notification No. 1775 dated 16th June, 2001. 6. The respondents including the 6th respondent, on appearance, have merely taken plea that the impugned notification of appointment made on 16th June, 2001 is ad hoc arrangement, made until regular appointment is made In accordance with guidelines as was framed by the Government of Bihar, Science and Technology Departments Resolution communicated, vide Memo No. 1537 dated 1st September, 2000. Reliance has been placed on note below clause 2(KA) of the resolution aforesaid to suggest that an I.A.S. Officer of selection grade of the rank of Joint Secretary/Additional Secretary can be posted as Director, Science and Technology till regular appointment is made, if there is a chance of delay in making selection of such appointment. 7. It will be evident from resolution dated 1st September, 2000 framed after the Patna High Courts directions that the post of Director, Science and Technology is an ex-cadre post [Clause 1(KA)], having tenure of three years [Clause l(KHA)]. 8. It is not in dispute that the Patna High Court in the case of petitioner Dr. 7. It will be evident from resolution dated 1st September, 2000 framed after the Patna High Courts directions that the post of Director, Science and Technology is an ex-cadre post [Clause 1(KA)], having tenure of three years [Clause l(KHA)]. 8. It is not in dispute that the Patna High Court in the case of petitioner Dr. Ram Krit Singh, 1992 (2) BLJ 705, directed the Government to lay norms/guidelines keeping in view the AICTE norms, clearly specifying the category of persons who are eligible for holding the post of Director, Science and Technology. In the background, and in the light of the directions of the Patna High Court, the State of Bihar while framed guidelines, vide Resolution dated 1st September, 2000, laid down that the post of Director, Science and Technology shall be filled up from amongst Director/Principal/Professor of Engineering Colleges, who fulfil technical qualifications as laid down by AICTE for appointment to the post of Director/Principal/ Professor and from those who are regular Principal of Government Polytechnics and Mining Institute. 9. Admittedly, the 6th respondent K.K. Khandelwal is an I.A.S. Officer and there is nothing on the record to suggest that he fulfils the technical qualifications laid down by AICTE for the post of Director or Principal or Professor of an Engineering College or the technical qualifications as required for the appointment as a Principal of the Government Polytechnics or Mining Institute. 10. In the aforesaid background, the 6th respondent being not qualified, is not eligible for appointment or posting as Director, Science and Technology, Jharkhand, Ranchi. 11. So far as note below Clause 2(KA) of Resolution dated 1st September, 2000 is concerned, it cannot override the substantive provision of clause 2(KA). Suph note would have been explanatory in nature, but cannot be contradictory to the main provision. If a person is not eligible for appointment or posting against a post under the substantive, provision, by way of explanation or note, such Ineligible person cannot be appointed or posted even by way of ad hoc arrangement. 12. For the reasons aforesaid, the note below Clause 2(KA) of Resolution dated 1st September, 2000 being arbitrary contradictory and conflicting to the substantive Clause 2(KA), cannot be upheld and is declared ultra vires. 13. 12. For the reasons aforesaid, the note below Clause 2(KA) of Resolution dated 1st September, 2000 being arbitrary contradictory and conflicting to the substantive Clause 2(KA), cannot be upheld and is declared ultra vires. 13. This apart, it will be evident from notification No. 1775 dated 16th June, 2001 that the 6th respondent has been appointed as Director, Science and Technology, Jharkhand, Ranchi and the Notification does not stipulate that the appointment is ad hoc, in nature. The respondents by making statement in the counter affidavit, cannot change the status of order and appointment dated 16th June, 2001, nor can term the same as ad hoc arrangement. 14. For the reasons aforesaid. Notification No. 1775 dated 16th June, 2001, so far as it relates to appointment of 6th Respondent K.K. Khandelwal, I.A.S., as Director, Science and Technology, Jharkhand, Ranchi Is concerned, being illegal, is set aside. 15. The respondents are directed to fill up the post of Director, Science and Technology, Jharkhand, in accordance with law, preferably within six months. 16. In the meantime, if they want to go with the ad hoc arrangement, may do so by posting a person who fulfils the conditions as laid down under Clause 2(KA) of Resolution dated 1st September, 2000. 17. The writ petition is allowed with the aforesaid observations and directions.