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2016 DIGILAW 1379 (ALL)

BRAHMCHARI SHAMBHU NATH v. STATE OF U. P.

2016-04-13

PRABHAT CHANDRA TRIPATHI, TARUN AGARWALA

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JUDGMENT Hon’ble Tarun Agarwala, J.—We have heard Sri Manish Goyal, the learned counsel for the petitioner, the learned standing counsel for respondent Nos. 1, 2 and 3, Mrs. Archna Singh, the learned counsel for U.P. Higher Education Services Commission, Allahabad, respondent No. 4, Sri Alok Misra, the learned counsel for respondent No. 5 Dr. Nilay Kumar and Sri Punit Khare, the learned counsel for the Committee of Management, Jagatpur Post Graduate College, Jagatpur, Varanasi, respondent No. 6. 2. Advertisement No. 39 was issued on 24.2.2005 by the U.P. Higher Education Services Commission inviting applications for various posts of Principal in Under Graduate Degree Colleges as well as Post Graduate Degree Colleges. The Committee of Management of Jagatpur Post Graduate College, Jagatpur, Varanasi, respondent No. 6 also sent a requisition for filling up the post of Principal. For reasons best known, the Commission failed to advertise the post of Principal for Jagatpur Post Graduate College, Jagatpur, Varanasi. The Committee protested and sent a representation, which was considered and the Director issued a direction to the Commission to advertise the post and do the needful in filling up the post of Principal. It transpires that a corrigendum was issued by the Commission advertising the post of Principal showing the college as an Under Graduate College. The Committee of Management again protested, but, as per the record, no further corrigendum was issued rectifying the mistake committed by the Commission. As a result, the vacancy of the post of Principal was advertised by the Commission showing Jagatpur Post Graduate College, Jagatpur, Varanasi as an Under Graduate College. 3. Respondent No. 5, Dr. Nilay Kumar, applied for the post of Principal for Under Graduate Colleges as well as for the Post Graduate Colleges. Respondent No. 5 was not selected for the post of Principal of Under Graduate Colleges, but, was selected for the Post Graduate College. Pursuant to the select list, the Director of Higher Education issued a placement order directing respondent No. 5 to join at Kulbhaskar Ashram Degree College at Allahabad on the post of Principal. Respondent No. 5, however, did not join at Kulbhaskar Ashram Degree College and challenged his placement as Principal before the Lucknow Bench of this Court by filing Writ Petition No. 1362(S.B.) of 2009. Respondent No. 5, however, did not join at Kulbhaskar Ashram Degree College and challenged his placement as Principal before the Lucknow Bench of this Court by filing Writ Petition No. 1362(S.B.) of 2009. The Division Bench passed an order dated 17.9.2011 directing the Secretary/Director of Higher Education to decide the representation of respondent No. 5 with regard to his request for placement at Jagatpur Post Graduate College, Jagatpur, Varanasi where he was teaching instead of posting him at Kulbhaskar Ashram Degree College at Allahabad. Based on the aforesaid directions, the Director of Higher Education, Dr. Mian Jaan, by his order dated 26.11.2009 rejected respondent No. 5 request and directed him to join at Kulbhaskar Ashram Degree College, Allahabad. The representation of respondent No. 5 was rejected on the ground that the post of Principal of Jagatpur Post Graduate College, Jagatpur, Varanasi was not advertised in Advertisement No. 39, dated 24.2.2005 and therefore, he cannot be allowed to join. 4. At this stage, it may be stated here that the Principal of Jagatpur Post Graduate College, Jagatpur, Varanasi retired and respondent No. 5 was given the charge of officiating principal on 30.6.2006. The petitioner contended that he was the senior most teacher and, therefore, he should have been given the charge of officiating principal. He and another teacher Sri V.K.Rai raised a dispute which was eventually settled in favour of the petitioner by an order of the Vice Chancellor against which respondent No. 5 filed a representation under Section 68 of the U.P. State Universities Act before the Chancellor, which was allowed. The petitioner thereafter filed Writ Petition No. 29925 of 2011, which was allowed by us today, by a separate judgment by which we have set aside the order of the Chancellor and held that the petitioner is senior to respondent No. 5. 5. Against the order dated 26.11.2009 rejecting the request of respondent No. 5 to be placed as Principal at Jagatpur Post Graduate College, Jagatpur, the said respondent filed Writ Petition No. 214 of 2007 before the Lucknow Bench of this Court. In this petition Dr. Mian Jaan, the then Director of Education was summoned. The Writ Court, after considering the statement made by the Additional Advocate General on behalf of Dr. Mian Jaan, passed the following order on 7.4.2010 : “Pursuant to our earlier order dated 5.4.2010, Dr. In this petition Dr. Mian Jaan, the then Director of Education was summoned. The Writ Court, after considering the statement made by the Additional Advocate General on behalf of Dr. Mian Jaan, passed the following order on 7.4.2010 : “Pursuant to our earlier order dated 5.4.2010, Dr. Miyan Jaan, Director, Higher Education, Allahabad, is present in Court. On his instructions, Shri D. K. Upadhyay, learned Chief Standing Counsel, and Shri Jaideep Narayan Mathur, learned Additional Advocate General make a statement to the effect that there is no other Principal working in Kulbhaskar Ashram Post Graduate College, Allahabad, as on today, and the post is lying vacant against which the petitioner has been given the posting of Principal ?. In view of the categorical statement of the Director, Higher Education, Allahabad, we dispose of this writ petition with a direction to the petitioner to join the place of posting, namely, Kulbhaskar Ashram Post Graduate College, Allahabad within 15 days from the date of receiving a copy of this order, failing which, his appointment shall stand cancelled. Writ petition is, thus, disposed of.” 6. The Writ Court held, that since the post of Principal in Kulbhaskar Ashram Degree College, Allahabad was vacant, the Court directed respondent No. 5 to join the place of posting, namely, Kulbhaskar Ashram Degree College, Allahabad within 15 days failing which his appointment shall stand cancelled. 7. Respondent No. 5 did not join the post of Principal at Kulbhaskar Ashram Degree College, Allahabad. Instead, he filed a review petition contending that the post of Principal at Kulbhaskar Ashram Degree College, Allahabad was not vacant. The Lucknow Bench, by an order dated 5.5.2010 again direct the presence of Dr. Mian Jaan, the then Director of Education. 8. The Review Application was, however, dismissed on 26.5.2010. The Court held that there was no mistake on the face of record and that respondent No. 5 was only trying to keep the controversy alive for one reason or the other. The Court, while dismissing the review application, permitted respondent No. 5 to join the Kulbhaskar Ashram Degree College, Allahabad within two weeks failing which his appointment would stand cancelled. The order dated 26.5.2010 passed on the review application is extracted hereunder: “In the instant review petition, there is no mistake on the face of the record but the petitioner wants to keep the controversy alive for one reason or another. The order dated 26.5.2010 passed on the review application is extracted hereunder: “In the instant review petition, there is no mistake on the face of the record but the petitioner wants to keep the controversy alive for one reason or another. Without saying much, we direct the petitioner to join the college within two weeks from today in terms of our earlier order dated 7.4.2010 otherwise his appointment shall stand cancelled, as already observed in the order dated 7.4.2010. Counsel for the petitioner has failed to point out any error apparent on the face of record and it appears that he wants re-hearing of the case under the garb of the application, which is not permissible. Thus, the review petition is without merit and high pitch of the volume of the counsel for the petitioner will not bring any desirable result to the petitioner. Without saying much or levy of the cost, the review petition is dismissed.” 9. Inspite of the aforesaid direction, respondent No. 5 did not join at Kulbhaskar Ashram Degree College, Allahabad and somehow respondent No. 5 manipulated and obtained an order dated 22.11.2010 from Dr.Mian Jaan just a few days before his retirement posting him as Principal of Jagatpur Post Graduate Degree College, Jagatpur, Varanasi. Pursuant to the said order, the Committee of Management issued an appointment letter dated 25.11.2010 appointing respondent No. 5 as the Principal of their College. The petitioner, at this stage, has filed the present writ petition praying for the quashing of the order dated 22.11.2010 passed by the Director and the appointment letter issued by the Committee of Management dated 25.11.2010. 10. This Court while entertaining the writ petition issued an interim order dated 7.12.2011 staying the operation of the order dated 22.11.2010 passed by the Director of Education as well as the order dated 25.11.2010 passed by the Committee of Management. The Court restrained respondent No. 5 as well as the petitioner from functioning as the Principal of Jagatpur Post Graduate Degree College, Jagatpur, Varanasi and directed the Committee of Management to take work as officiating Principal from the senior most teacher other than the petitioner and respondent No. 5. 11. In view of the interim order passed by this Court on 7.12.2011, respondent No. 5 filed second review application No. 161 of 2015, which was dismissed by an order dated 26.8.2015. 11. In view of the interim order passed by this Court on 7.12.2011, respondent No. 5 filed second review application No. 161 of 2015, which was dismissed by an order dated 26.8.2015. Subsequently respondent No. 5 filed a modification application which was also rejected by an order dated 8.10.2015. 12. In the light of the aforesaid, Sri Mainsh Goyal, Advocate contended that the post of Principal for Jagatpur Post Graduate College, Jagatpur, Varanasi was never advertised in Advertisement No. 39 dated 24.2.2005 and, therefore, respondent No. 5 could not be appointed on the post of Principal of this College by an order of the Director of Education dated 22.11.2010. The order of the Director of Education and the consequential appointment letter issued by the Committee of Management was patently illegal and against the decisions of this Court as well as of the Supreme Court. In support of his submissions the learned counsel relied upon the decisions of this Court in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, 1998(3) SCC 45 , Dr. Prakash Chandra Kamboj and others v. Committee of Management of Bareilly College, Bareilly and others, 2003(4) ESC 2363 and Satish Kumar v. State of U.P. and others, 2006(4) ESC 2786. 13. The learned counsel for the petitioner further contended that once the High Court issues a direction directing respondent No. 5 to join the post of Principal at Kulbhaskar Ashram Degree College, Allahabad failing which his appointment would stand cancelled, it was no longer open to the Director of Education to modify its own order and give a fresh placement to respondent No. 5 to join as Principal of Jagatpur Post Graduate College, Jagatpur, Varanasi. The learned counsel further contended that the State Government had issued an order dated 4.12.2010 directing that all orders passed by Dr. Mian Jaan after 1.11.2010 till the date of his retirement would remain inoperative and would not be acted upon till an inquiry was made. It was contended that the State Government instead of keeping the impugned order inoperative for reasons best known to them allowed it to remain operative, which was wholly illegal. 14. Mian Jaan after 1.11.2010 till the date of his retirement would remain inoperative and would not be acted upon till an inquiry was made. It was contended that the State Government instead of keeping the impugned order inoperative for reasons best known to them allowed it to remain operative, which was wholly illegal. 14. The learned standing counsel, on behalf of the Director of Higher Education, tried to justify the action of the Director contending in paragraph 25 of the counter-affidavit that the impugned order dated 26.11.2010 was not entered in the dispatch register, but the same was a genuine letter issued by the then Director of Higher Education. In paragraph 26 of the counter-affidavit, the State has tried to justify the implementation of the order of the Director and for not keeping it in abeyance, on the ground, that it was issued in compliance of the order dated 20.11.2008 passed by the Supreme Court in Special Leave Petition No. 25966 of 2008, State of U.P. and others v. Bharat Singh and others. The State Government, therefore, contended that the placement order of 22.11.2010 issued by the Director of Education was, therefore, not cancelled. The learned standing counsel, however, admitted that the post of Principal for Jagatpur Post Graduate College, Jagatpur, Varanasi was not advertised in advertisement No. 39, dated 24.2.2005. 15. Even though no counter-affidavit has been filed by the Commission, Mrs. Archana Singh, the learned counsel for the Commission contended that the corrigendum for advertising the post of Principal as Principal for Jagatpur Post Graduate College, Jagatpur, Varanasi was never issued on the ground that the results of the Under Graduate College was declared on 15.5.2007. The learned counsel contended that for unforeseen circumstances, the provision of Section 13(4) of the U.P. Higher Education Services Commission Act, 1980 could be invoked and the appointment on the post of Principal of Jagatpur Post Graduate College, Jagatpur, Varanasi could be issued and, therefore, the order of the Director was justified. 16. Sri Alok Misra, the learned counsel for respondent No. 5 contended that the petitioner had no locus standi to question the appointment of respondent No. 5 and that the writ petition was not maintainable. 16. Sri Alok Misra, the learned counsel for respondent No. 5 contended that the petitioner had no locus standi to question the appointment of respondent No. 5 and that the writ petition was not maintainable. The contention was, however, rejected by this Court by our separate order and by our judgment passed today in another writ petition of the petitioner, we have held that the petitioner is senior to respondent No. 5 and, therefore, had the locus to question the appointment of respondent No. 5. 17. In Writ Petition No. 21254 of 2000, Dr. Kanta Srivastava v. Director of Higher Education, U.P., Allahabad and another a Division Bench of this Court by judgment dated 11.5.2005 held that the petitioner, who was working as an officiating principal could challenge the appointment of another lecturer as officiating principal and had every right to maintain the writ petition. As we have already held that the petitioner is a senior most teacher, he had a right to question the appointment of respondent No. 5 as the Principal of the Jagatpur Post Graduate College, Jagatpur, Varanasi. The learned counsel for respondent No. 5 also contended that the conduct of the petitioner was such that he could not be granted any relief. It was alleged that the petitioner has been convicted and even though he has been enlarged on bail, nonetheless, he cannot be appointed to the post of Principal nor any relief could be given. In this regard we find that the sentence has been suspended by an order of the Court and, therefore, there is no bar for the petitioner either to question the veracity and legality of the appointment letter or be considered for the post in question. The learned counsel for respondent No. 5 tried to justify that the impugned order was issued in pursuance of the undertaking given by the said respondent before the supreme Court, based on which the impugned order was passed by the Director in compliance of the order of the Supreme Court. 18. Sri Punit Khare, the learned counsel for the Committee of Management, respondent No. 6, also contended that the conduct of the petitioner debarred him from raising the issues before the Court and that the select list issued under Section 13(2) of the Act was valid till the issuance of a fresh select list. 18. Sri Punit Khare, the learned counsel for the Committee of Management, respondent No. 6, also contended that the conduct of the petitioner debarred him from raising the issues before the Court and that the select list issued under Section 13(2) of the Act was valid till the issuance of a fresh select list. It was contended that since no subsequent list has been issued by the Commission till date, respondent No. 5 continues to be a candidate in the select list and could be placed in any College by the Director. In support of their submission the learned counsel has placed reliance in Dr. Y.K.Varshney v. State of U.P. and 3 others, 2015(11) ADJ 597 (DB). 19. In the light of the aforesaid stand of the rival parties, we have heard the learned counsel for the parties at some length. 20. The crucial issue, which arises for consideration is, whether the post of Principal of Jagatpur Post Graduate College, Jagatpur, Varanasi was advertised in Advertisement No. 39, dated 24.2.2005. All the parties admit that the post of Principal of Jagatpur Post Graduate College, Jagatpur, Varanasi was not advertised. The corrigendum that was issued on 3.4.2008 was only with regard to the post of Principal of Jagatpur Under Graduate College, Jagatpur, which is not the institution in question. It has also come on record that the Commission issued placement orders directing the incumbents to join as Principal of Jagatpur Under Graduate Degree College, Jagatpur, Varanasi. It is also admitted that respondent No. 5 also applied for the post of Principal in an Under Graduate Degree College, but, could not be selected. 21. In the light of the aforesaid, we are of the opinion that if the post of Principal was not advertised, neither the Commission nor the Director of Education could issue a placement order for appointing respondent No. 5 as Principal of the Jagatpur Post Graduate College, Jagatpur, Varanasi. The decision of the Supreme Court in Kamlesh Kumar Sharma, Dr. Prakash Chandra Kamboj and others and Satish Kumar (supra) cited by the respondents are not applicable in the instant case. The provision of Section 13(4) of the U.P. Higher Education Services Commission Act, 1980 are not applicable in the instant case. 22. The decision of the Supreme Court in Kamlesh Kumar Sharma, Dr. Prakash Chandra Kamboj and others and Satish Kumar (supra) cited by the respondents are not applicable in the instant case. The provision of Section 13(4) of the U.P. Higher Education Services Commission Act, 1980 are not applicable in the instant case. 22. We are further of the opinion that the contention of the State that the order of the Director dated 22.11.2010 was issued in pursuance of the interim order dated 20.11.2008 passed by the Supreme Court is patently erroneous. In fact, the order of the Director dated 28.12.2008 directing respondent No. 5 to join the post of Principal at Kulbhaskar Ashram Degree College, Allahabad was in compliance of the order of the Supreme Court dated 20.11.2008. Further, once the Court directs respondent No. 5 to join at Kulbhaskar Ashram Degree College, Allahabad within a stipulated period, it was no longer open to the Director to issue a fresh placement order. We are of the opinion that the Director by issuing the impugned order has willfully circumvented the orders of the Lucknow Bench of this Court for reasons best known to him. The State Government could not justify the action of the Director and should have kept this order in abeyance or should have revoked such order as per their directions dated 4.12.2010. Once the Court directs respondent No. 5 to join within a stipulated period, failing which his appointment as Principal would stand cancelled, it was no longer open to the Director to issue a fresh placement order. If respondent No. 5 did not join the post his appointment stood cancelled and his name gets deleted from the select list. 23. Consequently, for the reasons stated aforesaid, the impugned order dated 22.11.2010 passed by the Director placing respondent No. 5 to join the post of Principal at Jagatpur Post Graduate College, Jagatpur, Varanasi and the consequential appointment order dated 25.11.2010 issued by the Committee of Management appointing respondent No. 5 on the post of Principal cannot be sustained and are quashed. 24. The writ petition is allowed.