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2015 DIGILAW 557 (UTT)

Ashutosh Tiwari v. State of Uttarakhand

2015-12-09

K.M.JOSEPH, U.C.DHYANI

body2015
JUDGMENT : K.M. Joseph, C.J. Petitioners, three in number, seek the following relief: “(i) declare the decision taken by respondent no. 1 to cancel the entire selection process initiated vide advertisement dated 08.06.2013 for faculty positions in G.B. Pant Engineering College, Ghudauri, Pauri as unjust illegal and without jurisdiction. (ii) Issue a writ, order or direction in the nature certiorari for quashing the impugned cancellation order dated 08.06.2015, passed by respondent no. 1 (Annexure No. 2 to the writ petition). (iii) Issue a writ, order or direction in the nature of mandamus commanding the competent authority to appoint the petitioners to appropriate faculty positions in terms of the recommendation made by the Selection Committee which held selection pursuant to advertisement dated 08.06.2013.” 2. Briefly put, the case of the petitioner is as follows: Petitioner no. 1 applied for being considered to the post of Assistant Professor (Mechanical Engineering), petitioner no. 2 applied for being considered to the post of Assistant Professor (Electronic and Communication Engineering); whereas petitioner no. 3 applied for being considered to the post of Assistant Professor (Civil Engineering). The posts in question were advertised along with various other posts by the third respondent in respect to the fourth respondent college. The fourth respondent is a Government aided Society. The Apex body of the said society is the Board of Governors and the Minister of Technical Education Department is the Chairman of the Board. Clause 32(5) of the Byelaws of the society provides as follows: “In emergent cases, the Chairman may exercise the powers of the board and inform the Board of the action taken by him for its approval.” 3. The complaint of the petitioner is that on the basis of an anonymous complaint received, a Committee was constituted by the Government. The Committee submitted its report in June, 2014. On the strength of the said report of the Committee, the entire selection process has been cancelled by the Government. 4. We heard Sri Manoj Tiwari, learned Senior Counsel appearing on behalf of the petitioners, Sri B.D. Kandpal, learned Deputy Advocate General for the State of Uttarakhand and Sri Subhash Upadhyay, learned counsel for respondent nos. 3 and 4. 5. Learned Senior Counsel for the petitioners would take us through the report of the Committee. He would submit that there is nothing in the report, which would justify the cancellation of the entire selection. 3 and 4. 5. Learned Senior Counsel for the petitioners would take us through the report of the Committee. He would submit that there is nothing in the report, which would justify the cancellation of the entire selection. He would point out that, in fact, there is a Government Order, which forbids Authorities to act on the basis of an anonymous complaint. In this case, it appears that there was an anonymous complaint received prior to holding of the interview, where it is indicated that the appointment has already been fixed; nine names were mentioned in the complaint. It is pointed out in the complaint, inter alia, that the persons, about whom, it is said that the selection is prefixed, they are related to certain serving employees of the college. The inquiry report, in fact, reveals that out of nine, five would have been selected from the selection; whereas the others had not applied even. Therefore, he would point out that apart from the complaint being anonymous, report also does not indicate any wrong doing in regard to the selection of five persons named in the complaint. The following are the conclusions arrived at by the Committee constituted by the Government in its report: “Recommendations: Based on the above findings, following are the recommendations of the committee:- 1. The candidature of Sh. Rohit Negi who has applied for the post of Assistant Professor, ECE should be with held till the Principal, GBPEC, Pauri obtains clarification about his M. Tech degree from UGC / Singhania University and sends his recommendation to the State Govt. (Also due to findings indicated at page 4 of this report). 2. 8 Applicants for the post of Assistant Professor, MCA who have been made eligible by the Screening Committee who otherwise are not eligible should not be appointed even if selected. 3. The applicants for the post of Associate Professor, Mathematics who were made eligible by the screening committee, on re-examination of their applications by this committee were found lacking in eligibility criteria as per UGC norms. The screening committee recommendation is enclosed as Annexure-17. Keeping in view, this recommendation of the screening committee, the committee is of the view that State Government may take appropriate decision w.r.t. appointment on the post of Associate Professor, Mathematics. 4. The screening committee recommendation is enclosed as Annexure-17. Keeping in view, this recommendation of the screening committee, the committee is of the view that State Government may take appropriate decision w.r.t. appointment on the post of Associate Professor, Mathematics. 4. For the post of Assistant Professor, Mathematics & Chemistry, candidates who were not fulfilling UGC norms (Ph.D not as per the UGC regulations 2009) were also called for interview as they were made eligible by the screening committee. This committee is of the view that at the time of appointment it should be ensured that the candidate(s) who are appointed should have Ph.D as per UGC regulations 2009. 5. Apart from above cases, screening process was found as per norms.” 6. He would submit that actually the petitioners had applied for being considered in the Engineering subjects. Their qualifications are to be decided on the basis of norms fixed by AICTE and UGC norms would not apply. He would submit that the sweeping generalization, on the basis of which the decision to cancel the entire selection is made, is unsustainable in law. In this regard, he drew our attention to the following judgments of the Hon’ble Apex Court: (1) Union of India and others vs. Rajesh P.U. Puthuvalnikathu and another reported in (2003) 7 SCC 285 . (2) Inderpreet Singh Kahlon and others vs. State of Punjab and others reported in (2006) 11 SCC 356 . (3) Girjesh Shrivastava and others vs. State of Madhya Pradesh and others reported in (2010) 10 SCC 707 . We may only notice the following paragraphs from the judgment in Union of India and others vs. Rajesh P.U. Puthuvalnikathu and another reported in (2003) 7 SCC 285 : “6. On a careful consideration of the contentions on either side in the light of the materials brought on record, including the relevant portions of the report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, filed on our directions -which report itself seems to have been also produced for the perusal of the High Court, there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of the written examination - either by the candidates or by those who actually conducted them. If the Board itself decided to dictate the questions on a loud speaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of Invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted does not appear to have condemned that part of the selection process relating to conduct of the written examination itself, except noticing only certain infirmities only in the matter of evaluation of answer sheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears that the Special Committee has extensively scrutinized and reviewed the situation by reevaluating the answer sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment. There was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go- bye to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of canceling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.” We notice that the above judgment has been followed in Inderpreet Singh Kahlon and others vs. State of Punjab and others reported in (2006) 11 SCC 356 also. 7. We may take it to be the law laid down by the Hon’ble Apex Court that every time, a selection is called in question and the Authority takes a call to cancel the selection, the Court would scrutinize the action of the Authorities to ascertain, whether the action of the Authority to cancel the entire selection was justified on facts. A selection may come under cloud and may warrant cancellation en bloc in certain situations. But it cannot be that if the blemish affects only the selection partly, then it becomes imperative that those, who cannot be painted with the same brush as those who are found to be with blemish, should also face the same fate. Employment is the new form of property in a welfare State. There is a duty to act fairly having regard to the mandate of Articles 14 and 16. Therefore, if a selection is conducted, it cannot be lightly interfered with. This is not to lay down any general proposition and each case must be decided with reference to the facts being presented therein. 8. Besides this, learned Senior Counsel for the petitioners drew our attention to another aspect, which, in our view, will be sufficient to decide the lis in this case. The supreme body in regard to this Institution is the Board of Governors. This, as already noted, is a society, which is formed by the Government of Uttarakhand. 8. Besides this, learned Senior Counsel for the petitioners drew our attention to another aspect, which, in our view, will be sufficient to decide the lis in this case. The supreme body in regard to this Institution is the Board of Governors. This, as already noted, is a society, which is formed by the Government of Uttarakhand. The Minister is at the helm of affairs being the Chairman. The Board of Governors is to take decisions of the nature, which have been taken in this case. The Minister, in his capacity as a Chairman, has proceeded to take the decision on 08.06.2015. One of the grounds of challenge to the impugned decision is that the Minister in his capacity as Chairman has exceeded the limit of his authority to act under Clause 32(5) of the Byelaws, which powers are available in law to him only when there is an emergency. The interview took place in January, 2014, a three-member committee, which consisted of the Additional Secretary, Training and Technical Education; the Dean and the Registrar of the University, was appointed and the Committee submitted its report some time in June-July, 2014. After submission of the report, the matter should have received the attention of the Board of Governors ordinarily. Only an emergency would have justified a decision being taken at the instance of the Chairman to be placed before the Board of Governors for its approval. There is nothing to show that, in fact, the decision taken by the Minister in his capacity as Chairman acting under Clause 32(5) of the Byelaws has received the attention of the Board of the Governors. Therefore, as things stand, there is only a decision of the Minister as Chairman purporting to invoke powers under Clause 32(5) of the Byelaws. As already noted, these powers are available only in the event there being an emergency. Therefore, the issue which is raised before us is that there is no justification for the Minister in the capacity as Chairman to invoke his emergency powers. 9. Sri B.D. Kandpal, learned Deputy Advocate General for the State of Uttarakhand and Sri Subhash Upadhyay, Advocate for respondent no. 3 and 4 would submit that there were materials justifying the cancellation of the selection. As regards the invoking of the emergency powers, nothing much is forthcoming from the learned Deputy Advocate General or the learned counsel for respondent nos. Sri B.D. Kandpal, learned Deputy Advocate General for the State of Uttarakhand and Sri Subhash Upadhyay, Advocate for respondent no. 3 and 4 would submit that there were materials justifying the cancellation of the selection. As regards the invoking of the emergency powers, nothing much is forthcoming from the learned Deputy Advocate General or the learned counsel for respondent nos. 3 and 4 to deny strength to the submissions made by the learned Senior Counsel for the petitioners. 10. We are also of the view that in the facts of this case, there was no occasion for the Minister to invoke the powers under Clause 32(5) of the Byelaws. ‘Emergency power’ as the very words suggest is not to be exercised in routine fashion. The powers are ordinarily to be exercised by the Board of Governors, which appears to be a composite body consisting of bureaucrats, representatives of the Government and Scientific persons. In such circumstances, particularly in the matter of such moment affecting so many persons, the question as to whether an extreme decision should be taken, namely, to cancel the entire selection should certainly have been discussed and debated by the Members of the Governing Body in ordinary circumstances. The fact that the decision is taken after a lapse of nearly a year of the submission of the report would itself show that there was ample time for the Board of Governors to discuss the matter and to arrive at a legal and fair decision. Instead, in our view, the Chairman has exercised power beyond the scope of the authority conferred on him under the Byelaw in the facts of this case. In such circumstances, we would think that the matter should receive the attention of the competent body, namely, the Board of Governors. In the light of this discussion, the impugned order has to perish and we must quash it. 11. The question arises further as to whether we quash the decision as a whole. Petitioners, as we have already noted, have subjected themselves to selection in three different streams. We would think that the Board of Governors must bestow their attention as to whether the cancellation of selection in regard to the disciplines in question, for which the petitioners have offered themselves for selection, has to be done. To that extent, the writ petition must be allowed. Accordingly, we allow the writ petition. We would think that the Board of Governors must bestow their attention as to whether the cancellation of selection in regard to the disciplines in question, for which the petitioners have offered themselves for selection, has to be done. To that extent, the writ petition must be allowed. Accordingly, we allow the writ petition. The decision dated 08.06.2015 taken by the Chairman will stand quashed to the extent it relates to the disciplines of the petitioners, namely, for the posts of Assistant Professor (Mechanical Engineering), Assistant Professor (Civil Engineering) and Assistant Professor (Electronics and Communication Engineering). The Board of Governors will consider the question as to whether, having regard to the report submitted by the Committee and any other relevant facts, the selection in regard to the posts, for which the petitioners have offered themselves for selection, should be cancelled. A decision in this regard must be taken within a period of two months from today. We also direct that one post of Assistant Professor (Mechanical Engineering), one post of Assistant Professor (Electronics and Communication Engineering) and one post of Assistant Professor (Civil Engineering) will be kept vacant till a decision is taken by the Board of Governors. Needless to say, the Board of Governors will bear in mind the law as declared by the Hon’ble Apex Court while deciding the issue.