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Allahabad High Court · body

2008 DIGILAW 1547 (ALL)

BHARAT SINGH. v. STATE OF U. P

2008-08-07

RAJ MANI CHAUHAN, SUNIL AMBWANI

body2008
JUDGMENT By the Court.—Heard Sri P.S. Baghel, learned Counsel for the petitioner. Sri H.N. Singh appears for the U.P. High Education Services Commission. Learned Standing Counsel appears for the State respondents. 2. The U.P. Higher Education Services Commission issued advertisement No. 39 in newspapers and employment news inviting applications for the appointment on the post of Principals of Undergraduate/Degree Colleges in February, 2005. A corrigendum was issued on 23.2.2006. The petitioner appears for selection along with many other candidates. The selection process was completed and that the names of the selected persons in order of merit under Section 13 of the U.P. Higher Education Services Commission Act, 1980 were notified on 15.5.2007. The list of selected candidates was sent to the Director of Higher Education for placement. 3. Before the Director of Higher Education could exercise his power of placement, it is alleged that one Sri Yatindra Kumar, Advocate and Sri Sobh Nath Misra made certain allegations against the process adopted in the selection. The State Government took notice and entrusted the enquiry to the Commissioner, Allahabad Region, Allahabad. 4. The Commissioner, Allahabad Region, Allahabad, by his letter dated 16.6.2007, sought certain information from the Commission and while endorsing copy to the Director of Higher Education asking him not to make any placements. At this stage, this writ petition was filed on 13.7.2007. This Court passed following orders : “We have heard Sri P.S. Baghel, learned Counsel for the petitioners, Sri K.S. Kushwaha, learned Standing Counsel appearing for respondents No. 1, 3 and 4 and Sri H.N. Singh learned Counsel appearing for respondent No. 2 who pray for and are allowed one month to file counter affidavit. Three weeks thereafter is allowed to the petitioners to file rejoinder affidavit. List thereafter. Under the order of the State Government the Commissioner, Allahabad Division, Allahabad has conducted preliminary enquiry with regard to the conduct of the members of the Higher Education Service Commission. The Commissioner while holding the preliminary enquiry has directed the Director of Higher Education not to issue any appointment letter with regard to the candidates who have been selected by the Commission. In our opinion, the Commissioner does not have the power to direct the Director of Higher Education that he will not issue any appointment letter to the selected candidates. In our opinion, the Commissioner does not have the power to direct the Director of Higher Education that he will not issue any appointment letter to the selected candidates. A Division Bench of this Court in Ram Gopal Chairman U.P. Higher Education Service Commission, Allahabad and others v. State of U.P. and others, 1999(2) UPLBEC 825 has held that the Commissioner has no power to issue any direction to the State Government to stop the interview. If the Commissioner cannot stop the interview, he would not issue any direction to the Director, Higher Education, U.P., Allahabad to issue any such Government order. However, it appears that the selections have been made subject to the decision of this writ petition which are pending before the Court. Connect along with writ petitions No. 38714 of 2003, 41345 of 2003, 42992 of 2003, 52411 of 2005 and 70062 of 2006 and list after the expiry of the aforesaid period. Sri K.S. Kushwaha, learned Standing Counsel has submitted the enquiry report conducted by the Commissioner, Allahabad Division, Allahabad. We have returned back the enquiry report to Sri K.S. Kushwaha, learned Standing Counsel after putting it in sealed cover again. Until further orders of this Court the effect and operation of the order dated 16.6.2007 passed by the Commissioner, Allahabad Division, Allahabad, Annexure-6 to the writ petition, shall remain stayed. The Director, Higher Education, U.P. Allahabad is directed to issue appointment letters to the selected candidates within three weeks which shall be subject to the decision of this writ petition as well as other connected writ petitions. 13.7.2007.” 5. The State of U.P. filed a Special Leave Petition No. 14057 of 2007. The Supreme Court passed the following interim order : “Issue notice. Mr. Ranbir Singh Yadav and Mr. Rakesh K. Sharma, learned Counsel appears for the respective respondents. Three week’s time is granted for filing counter affidavit. Rejoinder, if any, be filed within two weeks thereafter. Let the matter be listed for final disposal after two months. In the meantime, the impugned order dated 13.7.2008, so far as it relates to direction to the Director, Higher Education, U.P. Allahabad “to issue appointment letter to the selected candidates within three weeks which shall be subject to the decision of this writ petition as well as other connected writ petitions”, shall remain stayed till final disposal of the matter.” 6. Whereafter the matter was heard and that the Supreme Court disposed of the Special Leave Petition on 12.2.2008 with following order : “On the prayer of learned Counsel for the parties, service of respondent No. 8 is dispensed with. At the time of issuance of notice on the respondents, following interim Order was passed : “Issue notice. Mr. Ranbir Singh Yadav and Mr. Rakesh K. Sharma, Iearned Counsel appears for the respective respondents. Three week’s time is granted for filing counter affidavit. Rejoinder, if any, be filed within two weeks thereafter. Let the matter be listed for final disposal after two months. In the meantime, the impugned order dated 13.7.2008, so far as it relates to direction to the Director, Higher Education, U.P. Allahabad “to issue appointment letter to the selected candidates within three weeks which shall be subject to the decision of this writ petition as well as other connected writ petitions”, shall remain stayed till final disposal of the matter.” It is not in dispute that the Writ Petition is pending before the High Court for final adjudication and the matter is ready for hearing. Considering the facts and circumstances of the case and the nature of interim order granted by the High Court which is now under challenge before us and the interim order we have already passed while issuing notice on the Special Leave Petition, we dispose of this Special Leave Petition without going into the merit of the dispute that would be decided in the Writ Petition in the following manner : (1) The High Court is requested to dispose of the Writ Petition within four months from the date of communication of this order to the High Court. The interim order which has already been granted and which has been quoted herein above shall continue. In the event, the Writ Petition is not decided within the time stipulated herein above, it will be open to the parties to apply for vacation or variation or even for extension of interim order granted by the High Court before the Division Bench of the High Court. The Special Leave Petition is disposed of accordingly.” 7. In the event, the Writ Petition is not decided within the time stipulated herein above, it will be open to the parties to apply for vacation or variation or even for extension of interim order granted by the High Court before the Division Bench of the High Court. The Special Leave Petition is disposed of accordingly.” 7. On 4.7.2008, the State Government filed a counter affidavit, and that on 14.7.2008, we made the following orders : “Hon’ble Supreme Court set aside the interim order passed by this Court for giving placement/appointment to the selected Principals of the Degree Colleges in the said selection on the ground that order virtually amounts to allowing the writ petition and requested this Court to decide the matter expeditiously. Sri P.S. Baghel, learned Counsel for the petitioners states that though the Commissioner was not authorized, he did not find any illegality in this selection. He further states that the Legislative Council has cancelled the preliminary inquiry report of the Commissioner. On these statements, it is necessary to find out the stand of the State Government with regard to the concerned selection. In case the State Government has not accepted the enquiry report, it may give its positive report whether the State Government has directed to hold fresh enquiry. The State Government shall also place on record the complaints which it has received against the selection. List on 23rd July, 2008. 14.7.2008" 8. The State Government did not care to produce either the complaint or to inform the Court that any further enquiry is contemplated in the matter. Consequently, we passed orders on 28.7.2008 : "Learned Standing Counsel has placed the instructions given to him by the State Government with regard to the process of selections and appointment. The State Government has informed the Director of Higher Education by letter dated 25th July, 2008 stating that before any action could be initiated on the preliminary enquiry report of the Commissioner, Allahabad dated 9th July, 2007 the High Court had granted interim order on 13.7.2007 and in the circumstances no fresh enquiry could be initiated. The placement could not be given as the Supreme Court had stayed the orders of the High Court. We do not find that the State Government has taken a positive decision with regard to the process of selections and the consequent appointments. The placement could not be given as the Supreme Court had stayed the orders of the High Court. We do not find that the State Government has taken a positive decision with regard to the process of selections and the consequent appointments. The Supreme Court has requested the High Court to decide the case within four months. The result was declared on 15th May, 2007. We find that sufficient time was given to the State Government to take a decision in this regard. Let the State Government clarify this fact within next one week, failing which we may be constrained to issue writ of mandamus in terms of the directions given by the Supreme Court in its order dated 12.2.2008. List on 7th August, 2008. A copy of the order be given to the learned Standing Counsel by tomorrow.” 9. On all these dates, we requested the Standing Counsel to give the stand of the State Government. Learned Standing Counsel informs that he had sent the information to the State Government but no instructions have been received by him. 10. We have perused the contents of the counter affidavit filed by Dr. Mian Jan, Director of Higher Education, U.P. on 4.7.2008 on behalf of the State of U.P., respondent No. 1, and on his behalf. There is nothing to indicate from the counter affidavit that the State Government has contemplated any further enquiry in the matter. In paragraph 3(e), (f) and (g), of the counter affidavit, it is stated that the State Government received complaints about the use of money, power as well as preferential treatments to the candidates of particular caste in the aforesaid selections for the post of Principal. After receiving complaints of corruption and other irregularities, the State Government decided to make a preliminary enquiry into the complaints against the selection made by the Commission. Section 5(a) of the U.P. Higher Education Services Commission Rules provides for the procedure for conducting an enquiry. If the State Government is prima facie satisfied that any misconduct is made, it may direct the detailed enquiry through a sitting or retired Judge of the High Court. Section 5(a) of the U.P. Higher Education Services Commission Rules provides for the procedure for conducting an enquiry. If the State Government is prima facie satisfied that any misconduct is made, it may direct the detailed enquiry through a sitting or retired Judge of the High Court. Since there is no rule to make preliminary enquiry to a sitting or retired Judge, the State Government decided on 12th June, 2007 to direct the Commissioner to make enquiry and that in order to facilitate the enquiry in free and fair manner, the Enquiry Officer had requested the Chairman by his letter dated 16.6.2007 to send the result of the advertisement No. 39 in sealed envelop and not to make placement of the selected candidates. 11. We have carefully examined the contents of the counter affidavit and do not find any such power in the rules directing the Commissioner of the Division to make an enquiry in the matter. The power under Section 6 of the Act given to the State Government to remove any member in case he is found guilty of misconduct. We do not find any averment in the counter affidavit or in the complaint of Dr. Karuna Nidhan Upadhyay dated 19.5.2007 annexed as Annexure-CA-1 making any specific allegations against a Chairman or member of the Commission. The complaint regarding corrupt practice in selections is wholly vague. With regard to allegations against Chairman and the members of the Commission, it is alleged that the persons appointed as members are of the level of Readers whereas they are selecting the Principals of the Colleges. It is also alleged that the scheduled caste candidates have been ignored. The rest of the allegations are entirely vague. 12. The State Government has not come out clearly with any positive assertion as to whether any enquiry was concluded by the Commissioner or that the enquiry is to be continued or to be followed by any other enquiry in the matter. 13. On the last two dates we find that learned Standing Counsel has not given positive reply to the Court. We are, therefore, of the opinion that the State Government is only delaying the matter. It has neither produced the record nor has made positive assertion that the preliminary enquiry has been concluded, and if it is not concluded, it has to be continued. We are, therefore, of the opinion that the State Government is only delaying the matter. It has neither produced the record nor has made positive assertion that the preliminary enquiry has been concluded, and if it is not concluded, it has to be continued. We, therefore, of the opinion that the State Government is not pursuing any enquiry and has nothing further to offer with regard to the allegations against the selections. We are also of the opinion that the Commissioner of the Division while making preliminary enquiry had no authority to stop the appointment in pursuance of the selections made under U.P. Higher Education Services Commission Act, 1980. The prima facie opinion of the State Government is also not available on record. In the facts and circumstances and also taking into account the time frame order given by the Supreme Court to decide the matter and having considered the stand taken by the State Government we allow the writ petition, and while quashing the order dated 12.6.2007 passed by the Principal Secretary Higher Education U.P. Lucknow and the order dated 16.6.2007 passed by the Commissioner of the Allahabad Division, Allahabad, issue a writ of mandamus to the Director Higher Education Services Commission U.P. to give effect to the recommendations made by the U.P. Higher Education dated 15.5.2007 and to make placements without any further delay. ————