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2012 DIGILAW 281 (ALL)

RINA SERAPHIM DEEN v. STATE OF U. P.

2012-02-01

PRADEEP KANT, RITU RAJ AWASTHI

body2012
JUDGMENT By the Court.—Heard learned counsel for the parties. 2. The petitioner-Dr. Rina Seraphim Deen as well as the Governing Body, Christ Church College, Kanpur have filed this writ petition challenging the orders passed by the Chancellor dated 29th April, 2011 as well as the order dated 28th August, 2010 passed by the Vice-Chancellor, respectively by means of which the approval granted to the appointment of the petitioner on the post of Lecturer (Economics) has been cancelled and the said order has been confirmed by the Chancellor under Section 68 of the Uttar Pradesh State Universities Act, 1973 (hereinafter referred to as the ‘Act’). 3. In brief, the facts are that Christ Church College, Kanpur is a Postgraduate Degree College of the Church of North India, Diocese of Agra with Arts, Science and Commerce Faculties and is affiliated to Chhatrapati Shahu Ji University, Kanpur. The college is a minority Institution. 4. The college is managed by the Governing Body. In the year 2002, 17 vacancies were existing against 17 substantive posts including the post of Lecturer (Economics). Besides this, there were vacancies in the department of Chemistry, Botany, Commerce, Physics, Zoology, English, Political Science, Maths and History. 5. For filling up the aforesaid vacancies, advertisements were issued in two daily newspapers, namely, ‘Amar Ujala’ and ‘Pioneer’ dated 29th and 30th September, 2002 and 1st October, 2002. Applications were invited from the willing and eligible candidates. Interview letters were issued and after selection, the petitioner was given appointment on 1st July, 2004 on the post of Lecturer (Economics) after the approval being granted by the Vice-Chancellor on 22nd May, 2004. 6. The petitioner joined the services on the post of Lecturer (Economics) on 1st July, 2004. While she was discharging the function of Lecturer (Economics), it appears that a complaint/representation was made by the respondent No. 4-S.E. Joseph to the Chancellor, purportedly under Section 68 of the Act, challenging the appointment of the petitioner. This complaint/representation was made on 5th May, 2007 and the same was sent to the University by the Chancellor on 26th June, 2007 for making enquiry. The University constituted a three member committee on 26th November, 2007. This complaint/representation was made on 5th May, 2007 and the same was sent to the University by the Chancellor on 26th June, 2007 for making enquiry. The University constituted a three member committee on 26th November, 2007. But before any decision could be taken by the said committee, the respondent No. 4 approached the High Court by filing C.M. Writ Petition No. 56662 of 2008 seeking a direction that the Vice-Chancellor be directed to take a decision in the matter. This writ petition was disposed of vide order dated 5th November, 2008 without notice to the respondents with the direction that the petitioner may make a representation before the Vice-Chancellor, who may take appropriate decision in the matter. 7. The Vice-Chancellor on 4th April, 2009 passed an order upholding the appointment of the petitioner and rejecting the complaint. 8. Against the aforesaid order, the respondent No. 4 preferred a representation under Section 68 of the Act before the Chancellor. This time again, the Chancellor relegated the matter back to the University so as to return a finding on the following two points: (i) Whether Dr. Parvez E. Deen, Principal of the College and husband of the petitioner, though was not the member of the selection committee nor in the process of selection but had in any manner influenced the selection? (ii) Whether the Governing Body sought the approval for panel of experts under Section 31 (4) (d) of the Act? The Vice-Chancellor maintained the finding with respect to the non-participation of the husband of the petitioner-Dr. Parvez E. Deen in the matter of selection and said that he did not influence the selection but on the second point, he found that the approval for selection was not held by following the provisions of Section 31 (4) (d) of the Act. Section 31 (4) (d) reads as under: “31 (4) (d) The Selection Committee for the appointment of other teachers of an affiliated or associated college (other than a college maintained exclusively by the State Government shall consist of— (i) The Head of the Management or a member of the Management nominated by him who shall be the Chairman. Section 31 (4) (d) reads as under: “31 (4) (d) The Selection Committee for the appointment of other teachers of an affiliated or associated college (other than a college maintained exclusively by the State Government shall consist of— (i) The Head of the Management or a member of the Management nominated by him who shall be the Chairman. (ii) The Principal of the college and another teacher of the college nominated by the Principal; (iii) two experts to be nominated by the Vice-Chancellor: [Provided that in the case of a college where there is no Principal or other teacher available for being a member of the Selection Committee under sub-clause (ii), the remaining members referred to in this clause shal constitute such Selection Committee:] Provided further that in the case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, the experts shall be nominated by the Management from out of a panel of five experts suggested by the Management and approved by the Vice-Chancellor.” 9. The second proviso of the aforesaid Section was applicable in the instant case where the experts were to be nominated by the management from out of the panel of five experts suggested by the Management and approved by the Vice-Chancellor. 10. Admittedly, the approval was sought for the aforesaid purpose from the Vice-Chancellor under the signatures of the Secretary, Christ Church College i.e. the Principal and not by getting the signatures of all the members of the Governing Body. 11. Nonetheless, the Vice-Chancellor nominated the required experts and the selection was accordingly held, not only with the respect to the post of Lecturer (Economics) but also for all vacancies, namely, 16 other posts of different departments, reference of which have been made earlier. It is not in dispute nor is being disputed by the respondents that the process of nomination of experts in all the subjects for the post of Lecturer advertised under the same advertisement was one and the same. There was no other resolution or request from the Governing Body for nomination of experts in respect of other vacancies. 12. It is not in dispute nor is being disputed by the respondents that the process of nomination of experts in all the subjects for the post of Lecturer advertised under the same advertisement was one and the same. There was no other resolution or request from the Governing Body for nomination of experts in respect of other vacancies. 12. The Vice-Chancellor has cancelled the approval to the appointment of the petitioner solely on the ground that the request for approval sent by the Governing Body was not signed by the Governing Body but by the Principal as Secretary of the Governing Body. 13. The petitioner’s contention is that the Principal being the Secretary of the Governing Body, even if he had signed the letters sent to the Vice-Chancellor it would not be an illegality, though it may be an irregularity, in sending the panel of experts, for being approved by the Vice-Chancellor. 14. The Vice-Chancellor in his order dated 28th October, 2010 has observed that the suggestion of the experts panel sent by the Chairman, Governing Body, Christ Church College, Kanpur, was sent for approval by Dr. Parvez E. Deen, Secretary of the Governing Body, Christ Church College. 15. The Governing Body itself has come before this Court as petitioner No. 2 in the writ petition, therefore, it cannot be ruled out that it owns the resolution/suggestion sent to the Vice-Chancellor for nomination of experts. 16. Assuming that the Governing Body did not sign but the said letter, which was sent under the signatures of the Secretary of the College, namely, the Principal, was considered by the Vice-Chancellor and experts were nominated, it would, therefore, not constitute any illegality in the constitution of the selection committee, though it may be an irregularity. Once the experts were nominated by the Vice-Chancellor, the suggestion or the request made stood exhausted, which was sent by Governing Body through Principal/Secretary of the College. 17. It is not the case of the respondents nor that of the Vice-Chancellor that the experts nominated were not eligible or competent to be nominated as experts. This besides, the experts were nominated for all the posts under the similar letters issued separately on the same very day i.e. 13th November, 2002, itself in the same very manner i.e. under the signatures of the Principal/Secretary, Christ Church College. The said letters are also brought on record. 18. This besides, the experts were nominated for all the posts under the similar letters issued separately on the same very day i.e. 13th November, 2002, itself in the same very manner i.e. under the signatures of the Principal/Secretary, Christ Church College. The said letters are also brought on record. 18. It may be pertinent to mention here that all other appointments made on the basis of the selection committee constituted in the same manner are intact and have not been touched nor appointments have been cancelled but the petitioner has been singled out and her appointment has been cancelled. 19. Assuming that there was some irregularity in the procedure adopted for nominating the experts, still the constitution of the selection committee cannot be said to be invalid nor any such irregularity would be sufficient to cancel the appointment once made. 20. There is one more aspect of the matter, namely, whether the respondent No. 4 was at all competent to raise the dispute regarding the appointment on the post of Lecturer of the petitioner and whether he was a person aggrieved and was having any locus standi to challenge the same. 21, On being asked about the credentials of respondent No. 4, a supplementary affidavit has been filed saying that he is having educational qualification of Intermediate and that he is engaged in the business of Scrap and runs a shop at Kanpur. 22. In the matter of selection and appointment on the post of Lecturer in a Postgraduate College, a person if he is aggrieved by the selection can certainly raise a complaint and approach the Vice-Chancellor or the Chancellor as the case may be. But it is extremely doubtful that a person who is a stranger and cannot be a candidate for selection not being qualified for that purpose would be given a right to challenge such selection. If such complaints on behalf of such persons are permitted to be raised that would impinge upon the sanctity of the selection and would be beyond the scope of the provisions/avenues available to the aggrieved persons to raise grievance. If such complaints on behalf of such persons are permitted to be raised that would impinge upon the sanctity of the selection and would be beyond the scope of the provisions/avenues available to the aggrieved persons to raise grievance. There was no occasion for the respondent No. 4 to make a complaint regarding the selection on the post of Lecturer (Economics) and if it was a bona fide act, he should have complained against all the posts of Lecturer in total 17 and where the selection was made in the same manner. Counsel for the respondent No. 4 explains that the respondent No. 4 has not made complaint against all the posts of Lecturer except the petitioner for the simple reason that the petitioner is the wife of the Principal. The reason is strange. If the selection was bad on the post in question, then all the selections were bad for the same reason and all the selections were to be cancelled and the petitioner could not have been singled out. 23. In our opinion, the non-signing of the letters of request of panel of experts by the Governing Body would not constitute any illegality so as to hold the selection invalid, particularly, when the same was signed on behalf of the Governing Body and to its knowledge by the Secretary of the College. The Vice-Chancellor having taken no exception of the same did nominate the experts and therefore, it was not open for the Vice-Chancellor to take a different view when he received a complaint that too in respect of only one selection. 24. The Vice-Chancellor had earlier rejected the complaint of the respondent No. 4 but it on being sent again by the Chancellor, this time took a different stand in regard to the Section 31 (4) (d) of the Act, though on the plea that Dr. Parvez E. Deen influencing the selection, he has negatived the plea raised by the complainant and held that the Principal did not participate in the selection nor he has influenced the selection in any manner. Once the selection was not influenced by the Principal, namely, the husband of the petitioner, the appointment of the petitioner could not have been cancelled, merely on the aforesaid ground. 25. Once the selection was not influenced by the Principal, namely, the husband of the petitioner, the appointment of the petitioner could not have been cancelled, merely on the aforesaid ground. 25. For the reasons aforesaid, the order dated 29th April, 2011 passed by the Chancellor as well as the order dated 28th October, 2010 passed by the Vice-Chancellor are liable to be quashed, which are hereby quashed. 26. The writ petition is allowed. 27. The petitioner shall be reinstated into service to resume her duties, if she is out of service, and she shall be paid salary including arrears of salary. If any amount towards salary of the petitioner has been deposited in this Court, the petitioner shall be allowed to withdraw the same, forthwith. ——————