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2009 DIGILAW 3214 (ALL)

YAGYA NARAIN SHUKLA v. STATE OF U. P.

2009-10-07

AMITAVA LALA, ARUN TANDON

body2009
JUDGMENT By the Court— U.P. Higher Education Services Selection Board published an advertisement dated 31.1.1995 for the purposes of selection and appointment on the post of Principal in various affiliated degree colleges. Respondent No. 6 Mahendra Pratap Singh applied, he was selected and was assigned a place in the select panel by the Commission. Under the order of the Director Higher Education dated 3.8.1995 he was empanelled for appointment in Daya Nand College of Law, Kanpur. The Committee of Management of the college offered appointment, Sri M.P. Singh joined in the said institution on 12.12.1995. 2. However, objections were raised with regard to the appointment of M.P. Singh as Principal of the Law College and as a consequence thereto he was transferred to Nagrik Degree College Janghai, District Jaunpur vide order of the Director dated 12.7.2000 as per the directions of the State Government dated 11.4.2000. These two orders were challenged by M.P. Singh by means of Writ Petition No. 530 of 2001. The Board of Management of Daya Nand College of Law, Kanpur also filed Writ Petition No. 48183 of 2000 questioning the appointment of M.P. Singh as Principal of Law College. Both the writ petitions were decided by a common judgment of the Division Bench. The writ petition filed by M.P. Singh was allowed and that filed by Committee of Management was dismissed. 3. The matter was taken to the Hon’ble Supreme Court by Bar Council of India. The Hon’ble Supreme Court vide its judgment reported in 2006(5) ESC 246 (SC), Bar Council of India v. Board of Management, Dayanand College of Law and others held that appointment of M.P. Singh as Principal of Law College was illegal and, therefore, he cannot function therein. It was provided that in terms of the interim order of Hon’ble Supreme Court Sri M.P. Singh has been transferred as Principal of another institution but he has not been permitted to take charge. The Hon’ble Supreme Court in paragraph 18 of the order, therefore, provided that the authorities and the High Court may deal with the grievance of M.P. Singh regarding his status and posting in expeditious manner. The Hon’ble Supreme Court in paragraph 18 of the order, therefore, provided that the authorities and the High Court may deal with the grievance of M.P. Singh regarding his status and posting in expeditious manner. For the purposes of this petition it is worthwhile to reproduce Paragraph 18 of the Apex Court judgment : “We find that consistent with the Advocates Act and the Rules of the Bar Council of India, Respondent 5 could not have been appointed as the Principal of law college, however, eminent he might be as a philosopher, friend and guide to the students and his competence to teach Ethics could be recognized. It is submitted on behalf of the Respondent 5 that he was not responsible for his appointment as the Principal of the Law College and he has suffered because of this controversy which is not of his making and since he was relieved from the post of the Principal of the Law College subsequent to the interim order passed by this Court in these appeals. It is submitted that though he was transferred as the Principal of another institution, he could not take charge because of some interim orders passed by the High Court in a writ petition filed by some interested persons. Now, that we have clarified the position, we have, no doubt, that the authorities that be and the High Court will deal with grievances of Respondent 5 regarding his status and posting in an expeditious manner, if moved in that behalf and take an appropriate decision consistent with what we have stated in this judgment.” 4. The State Government vide order dated 3rd July, 2007 in exercise of powers under Section 13 sub Clause 5 of the U.P. Higher Education Services Selection Board Act, 1980 (hereinafter referred to as Act, 1980) approved placement of Sri M.P. Singh as Principal of Dr. Shyameshwar Mahavidyalay, Sikariganj, District Gorakhpur. The Director accordingly issued a letter dated 27.9.2007 directing the Committee of Management of the institution to offer appointment to the petitioner as Principal against the vacancy on the post of Principal caused on 30.6.2007. Sri M.P. Singh is stated to have joined in pursuance thereof. 5. Shyameshwar Mahavidyalay, Sikariganj, District Gorakhpur. The Director accordingly issued a letter dated 27.9.2007 directing the Committee of Management of the institution to offer appointment to the petitioner as Principal against the vacancy on the post of Principal caused on 30.6.2007. Sri M.P. Singh is stated to have joined in pursuance thereof. 5. The petitioner before this Court who was working as officiating Principal of the Institution after the retirement of Sri Buddhi Saran has filed this writ petition for a writ of quo warranto as well as for a writ of certiorari quashing the order dated 27.9.2007. 6. The ground raised for challenging the aforesaid placement of M.P. Singh is that the vacancy on the post of Principal of Dr. Shyameshwar Mahavidyalay, Sikariganj, District Gorakhpur became available only on 30.6.2007, it has not a subject matter of the advertisement in the year 1995 nor of any other subsequent advertisement, therefore, the empanelment of Sri M.P. Singh against the said vacancy is illegal and contrary to the provisions of Act 1980 and nullity in view of Section 12 of the Act 1980. 7. It is further contended that Section 13 sub-Clause 5 of the Act 1980 has no application in the facts of the present case, therefore, the order of the State Government as communicated under the letter of the Director dated 27.7.2007 is patently illegal. 8. On behalf of Mr. M.P. Singh, Sri M.D. Singh Shekhar, learned senior Advocate assisted by Sri Vikas Budhwar, Advocate has submitted that the fact situation of the case is more or less identical to that contemplated by Rule 13(5). The State Government has exercised its powers with reference to the directions issued by the Hon’ble Supreme Court referred to above. This Court may not interfere on the asking of the petitioner who was working as officiating principal only. In the alternative he submits that petitioner, has to be offered appointment in accordance with the merits secured by him in the selection and it is for this purpose that the Hon’ble Supreme Court has directed the Government and the High Court to take expeditious action. 9. We have heard learned counsel for the parties and gone through the record of the present writ petition. 10. 9. We have heard learned counsel for the parties and gone through the record of the present writ petition. 10. Under various orders of this Court an attempt was made to obtain information as to whether any vacancy on the post of Principal which was subject matter of advertisement published on 31.1.1995 was still available against which Mr. M.P. Singh would be adjusted. We have been informed by learned counsel for the Commission that no such vacancy is available. We, therefore, proceed to examine the merits of the case. 11. We may first deal with the issue as to whether in the facts of the case the provisions of Section 13 sub Clause 5 of the Act 1980 would be attracted in the case of M.P. Singh or not. Section 13 sub-clause 5 of the Act 1980 reads as follows : “13. Recommendation of Commission.— (5) Notwithstanding anything in the preceding provisions, where to abolition of any post of teacher in any college, services of the person substantively appointed to such post is terminated the State Government may make suitable order for his appointment in a suitable vacancy, whether notified under Sub Section (3) of Section 12 or not in any other college, and thereupon the Director shall intimate to the management accordingly.” 12. Simply put Section 13 (5), confers power upon the State Government to make appointment against a vacancy whether notified or not and irrespective of the provisions of advertised selection etc. contained in earlier Section of the Act 1980 only when a post in a college is abolished. The teacher working adjust such a post (since abolished) can be adjusted against any vacancy which has not even been notified under Section 12(3) of the Act, 1980. 13. In the facts of this case, there has been no abolition of the post and, therefore, Section 13 sub clause (5) is not attracted. It may be repeated that Hon’ble Supreme Court has found that Sri M.P. Singh was not possessed of the prescribed qualifications for appointment as Principal in Law College and it was on this ground that his appointment in Daya Nand College of Law was held to be illegal. 14. We are of the considered opinion that adjustment of Sri M.P. Singh under Section 13(5) against the vacancy which has been caused in the institution only on 30.7.2007 and had not been advertised is totally unwarranted. 15. 14. We are of the considered opinion that adjustment of Sri M.P. Singh under Section 13(5) against the vacancy which has been caused in the institution only on 30.7.2007 and had not been advertised is totally unwarranted. 15. The Hon’ble Supreme Court of India while considering the scope of Section 13(4) of the Act 1980 qua no appointments against vacancies which had not been advertised in the case of Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others explained in 1998 (3) SCC 45 has held in para 13 as follows : “We find, after giving our careful consideration that in case the appellant’s argument is accepted by giving wider interpretation to the word “otherwise”, it would thwart the very object of the Act. In other words it would permit the filling of the vacancy occurring which was never advertised and a person in the select list panel, even though not applying for any vacancy, would be absorbed. Hence it would be limiting the sphere of selection in contradiction to the object of the provision to draw larger applicants by advertising every vacancy to be filled in. We have no hesitation to say that any appointment to be made on a vacancy occurring in the succeeding year in question for which there is no advertisement under the provisions of sub-section (4) of Section 12, the person on the panel list of preceding academic year in question, cannot be absorbed or be appointed.” 16. The legal principles so explained is applicable with full force in the facts of the present case as the State Government has wrongly exercised power under Section 13(5) of the Act. The conditions as contemplated by Section 13 sub-clause (5) were not attracted and, therefore, the directions contained in the letter of the Director dated 27.9.2007 are held to be illegal and contrary to the provisions of the Act rendering the appointment offered to Sri M.P.Singh as void in view of Section 12(5) of the Act 1980. 17. We may now deal with the issue raised qua right of the petitioner to maintain present petition. 18. 17. We may now deal with the issue raised qua right of the petitioner to maintain present petition. 18. We are of the considered opinion that the senior most teacher of the college who is working as officiating principal has every right to maintain this writ petition inasmuch as and whenever the vacancy on the post of Principal of the college which has been caused on 30.7.2007 is advertised by the Commission, the petitioner will have a right to apply and such right of consideration of the petitioner cannot be permitted to be defeated by the illegal adjustment of M.P. Singh against vacancy of Principal in the institution. Reference may also be had to paragraph 22 of the judgment of the Hon’ble Supreme Court in the case of Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others (supra) wherein right of the officiating principal to maintain the writ petition challenging the appointment of permanent Principal has been upheld. 19. Now with reference to the directions of the Hon’ble Supreme Court, as per para 18 of the judgment in the case of Bar Council of India (supra) quoted above, we are required to consider the posting of M.P. Singh as per his status. 20. A Division Bench of this Court in the case of Alka Rani Gupta (Kumari) v. Director of Education (Higher), Directorate of Higher Education, U.P. Allahabad and another, 2003(2) ESC 944 (All)(DB) in paragraph 9 and 10 has held as follows : “9. Thus the legal position which emerges from the above provisions in the Act and Regulations is as follows : (1) Where a large number of candidates are selected for various institutions by the Commission, the Commission has to prepare a select list in accordance with the merit determined by the Commission. (2) The candidate who is on the top of the select list will be given his first preference. (3) Then the candidate who is at serial position No. 2 in the select list will be considered by the Director. If his first choice has already been filled by the candidate at the top of the select list then the candidate will be given his second choice, otherwise he will get his first choice. (4) Then we come to the candidate who is on the third position in the select list. If his first choice has already been filled by the candidate at the top of the select list then the candidate will be given his second choice, otherwise he will get his first choice. (4) Then we come to the candidate who is on the third position in the select list. If the choice of his first preference has not been already allotted to a candidate higher than him in the select list he will be given that institution, otherwise he will be given his second choice, unless that too has been allotted to the candidate above him, in which case he will be allotted the institution of his third choice. In this way the Director will do the placement. 10. In our opinion, this is the only logical and reasonable method for making placement of a candidate selected by the Commission, and if this is not followed there is bound to be chaos, corruption, arbitrariness, casteism etc. There shall be only one exception to the above method and procedure for making placement, namely, that if there is an adhoc Principal already working in the College, or Lecturer working in the said College who has been selected by the Commission for the post of Principal, then the adhoc Principal/Lecturer should be given placement in the same College as Principal provided that the Management has no objection.” 21. The full Bench of this Court in the case of Vinay Kumar (Dr.) v. Director of Education (Higher) Allahabad, 2005 ADJ 549 (All)(FB) approved the law laid down in Alka Rani’s case and in paragraphs 34 to 40 and 43 has laid down as follows : “34. We are of the opinion that the Director cannot give any weight at all to the preference of the management in the selection of a particular candidate as their Principal or their Teacher. 35. The Education Act of U.P. and the Rules and Regulations thereunder have been framed for various purposes, one of which is to see it that the management does not staff its college only in the manner it likes, that the staff is selected with a view to proper education of the students and the children and the best possible available candidates are put in the teaching jobs. The tendency of the management to favour its own candidates for extraneous reasons is negatived by the manner and procedure of the selection, which is given in these educational schemes and Acts. We find that in Section 13 there are only two factors for grading or selecting a candidate for a particular college. The first gradation is made as per Section 13 (1), on the basis of interview with or without examination and this gradation is called the merit list. 36. This merit list is not the only list. Though the management has no say in the matter, the employee, i.e. the prospective Principal or the prospective Teacher has a say of his own. He can make a preference for a College. 37. In our opinion, the Director at the time of making intimation is to take into account only two things, in regard to every candidate, namely, the candidate’s merit position as determined under Section 13 (1), and the preferential list of colleges or institutions given by the candidate himself. 38. How the Director is to allot the candidates to the different colleges on the basis of these two items and these two items only are, with respect, correctly laid down by the Division Bench in paragraph 9 in Alka Rani’s case (supra) and we agree with that paragraph in toto. 39. In our opinion the Director does not use a discretionary power in making intimations under sub-section 8 (3) of Section 13. Instead of the Director, any other person with an equally logical mind as the Director will also be able to perform the same act but the Director has been given the authority, so as to carry conviction and to make it safe for the colleges to follow the recommendations and intimations coming under his signature. 40. The wording of sub-section (3) of Section 13 show that Director’s action is compulsory prescribed by the said sub-section. Although the said sub-section does not refer to the merit list at all yet as laid down in paragraph 9 of Dr. Alka Rani’s case (supra) the merit list must be considered by the Director and in this regard the Director cannot disregard sub-section (1) of Section 13 and the exercise performed under that sub-section. The exercised by the Director is performed thereafter and must be preformed thereon.” “43. Alka Rani’s case (supra) the merit list must be considered by the Director and in this regard the Director cannot disregard sub-section (1) of Section 13 and the exercise performed under that sub-section. The exercised by the Director is performed thereafter and must be preformed thereon.” “43. In this view of the matter we abide by what was said in paragraphs 9 and 10 (first sentence only) of Dr. Alka Rani’s case (supra) and respectfully disapprove what was said in that case in paragraphs 10 (rest) and 11. We make it clear that we approve of the first sentence in paragraph 10 of Dr. Alka Rani’s case (supra) but disapprove only of the latter part of that paragraph where the exception is said to be spelt out.” 22. In view of the law so explained the only lawful action which is required to be taken by the authorities is to examine the merit position of Sri M.P. Singh as determined under Section 13(1) of the Act 1980 vis a vis the other candidates who have been selected and offered appointment in response to the advertisement of 1995. In case it is found that any person lower in merit than Sri M.P. Singh has been offered appointment, the Director of Education (Higher) should take necessary action for offering appointment to Sri M.P. Singh in preference to such candidate who is lower in the merit, the exercise has to carried out in accordance with law as explained under the full Bench decision of this Court in the case of Vinay Kumar (supra). 23. The aforesaid exercise shall be completed within a period of one month from the date a certified copy of this order is filed before Director (which the petitioner undertakes to do so within three weeks from today). The Director shall pass a reasoned order within a period of one month after affording opportunity to the affected party. 24. Sri M.P. Singh may be permitted to continue in the petitioner’s institution for a period of two months, however, he shall cease to function immediately on issuance of the order by the Director, as indicated above. 25. Writ petition is allowed subject to the directions issued above without cost. ————