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2017 DIGILAW 1534 (ALL)

Bhupendra Pratap Singh v. State of U. P.

2017-06-15

S.N.SHUKLA, SHEO KUMAR SINGH-I

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JUDGMENT 1. Heard Shri Gaurav Mehrotra, learned counsel for the petitioner, learned Additional Chief Standing Counsel, Shri Rajat Rajan Singh, learned counsel for the intervenor and Shri Ravi Singh Sisodiya, learned counsel for the respondent-University. 2. The petitioner has assailed the order dated 21.07.2015 issued by the Joint Secretary, Department of the Handicapped Welfare of the State Government, whereby the process for appointment of teaching and non teaching staff in Dr. Shakuntala Mishra National Rehabilitation University, Lucknow University was stopped forthwith. 3. Learned counsel for the petitioner has raised question on the jurisdiction of the State Government to interfere in functioning of the University particularly in the matter of appointment of teaching and non teaching staff since the University is an autonomous institutions established by an Act call as ‘Dr. Shakuntala Mishra Punarvas Vishwavidyalaya (Bhinnarupen Yogya Hetu) Uttar Pradesh Adhiniyam Act, 2009. He invited attention of this Court towards the provisions of Section 16 of the Act, 2009 and submitted that the power of appointment of teaching staff is vested with the Executive Council as under: “16. Without prejudice to the provisions of Section 13, the Executive Council shall have the following powers and functions: (i) ... (ii) to appoint from time to time, Professors, Readers, Lecturers, other members of the teaching staff, the Librarian and such other members of the teaching staff as may be necessary on the recommendations of the Selection Committee constituted by statutes for the purpose. (iii) ... (iv) ... ... (xiv) .....” 4. He further submitted that Section 8 of the Act, 2009 has defined the authorities of the University as under: “8. The following shall be the authorities of the University: - (i) the General Council; (ii) the Executive Council; (iii) the Academic Council; (iv) the Finance Committee, and (v) such other authorities as may be prescribed.” 5. Each of the authorities have been assigned different functions to be performed by it. Section 9(i) of the Act, 2009 provides for constitution of General Council of the University in which the Chief Minister of the State as well as other dignitaries have been assigned to be ex officio members of the Council. The powers of the General Council has been defined under Section 11 of the Act, 2009 as under: “11. Section 9(i) of the Act, 2009 provides for constitution of General Council of the University in which the Chief Minister of the State as well as other dignitaries have been assigned to be ex officio members of the Council. The powers of the General Council has been defined under Section 11 of the Act, 2009 as under: “11. The General Council shall have the following powers, namely: - (i) to recommend the name of the Vice-Chancellor of the University under the provisions of this Act; (ii) to exercise the powers and functions of the University referred to in Section 5 except where such powers are given to some other authority or officer of the University under the provisions of this Act; (iii) to review from time to time the broad policies and programmes of the University and to take measures for the improvement and development of the University; (iv) to consider and pass resolutions as deemed fit on the annual report, financial estimates, annual accounts and the audit reports on such accounts; (v) to delegate all or any of its powers to the Vice Chancellor or any committee or any sub-committee or to any one or more of its members, and (vi) to perform such other functions as it may deem necessary for the efficient functioning and administration of the University.” 6. In none of the functions noted above, the matter of appointment has been vested with the General Council of the University. In exercise of power provided under Section 16(ii) of the Act, the Executive Council of the University took a decision to advertise the post of teaching and non teaching staff and therefore, an advertisement dated 16.02.2015 was issued for appointment of various posts of teachers. The petitioner having been fulfilled the eligibility criteria for the post of Assistant Professor, applied for the post of Assistant Professor, Social Work Department on 18.03.2015. The order impugned speaks that there was a complaint of illegalities to be committed in appointment of non teaching staff, however, the State Government stopped the process of selection to be initiated even against the teaching staff also. 7. Despite several times provided to the learned Additional Chief Standing Counsel, he has failed to receive instructions in the matter nor has placed any such complaint before this Court as has been referred to in the order impugned. 8. One Dr. 7. Despite several times provided to the learned Additional Chief Standing Counsel, he has failed to receive instructions in the matter nor has placed any such complaint before this Court as has been referred to in the order impugned. 8. One Dr. Abhay Krishna has filed an application to intervene in the matter. 9. Mr. Mehrotra, learned counsel for the petitioner has raised objection against the locus of the applicant (complainant) to intervene in the matter, at this stage, in view of the law laid down by the Hon’ble Supreme Court in the case of Ravi Yashwant Bhoir v. District Collector, Raigad and Others (2012) 4 SCC 407 . In this case the Hon’ble Supreme Court held that ‘the complainant, at the most, could lead the evidence as a witness. He could not claim the status of an adversarial litigant. The complainant cannot be the party to the lis. A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eye of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria. The complainant has to establish that he has been deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione valuntas reasons i.e. a claim devoid of reasons’. 10. In view of the aforesaid objection, learned counsel for the intervenor has submitted that he is interested in the fair selection which may be made in accordance with Rules. 11. Mr. Mehrotra, learned counsel for the petitioner has stated that this Court has dealt with the same very issue in the writ petition No. 1801 (S/B) of 2010; Dr. 10. In view of the aforesaid objection, learned counsel for the intervenor has submitted that he is interested in the fair selection which may be made in accordance with Rules. 11. Mr. Mehrotra, learned counsel for the petitioner has stated that this Court has dealt with the same very issue in the writ petition No. 1801 (S/B) of 2010; Dr. Anand Pandey v. State of U.P. In the said case the question of authority of the State Government in interfering with the matter of appointment was raised. This Court held that ‘we do not find any reason for the Joint Secretary to the State Government to issue the order dated 26.11.2010, or to make any inquiry in the matter. We, therefore, set aside the order dated 26.11.2010. The Lucknow University is directed to proceed with the selection process expeditiously’. 12. Regard being had to the aforesaid submissions, we found that Section 16 of the Act, 2009 vested the power of the appointment with the Executive Council of the University and under any of the provisions of the Act, the State Government has not been authorized to intervene in the matter of appointment of teaching and non teaching staff, therefore, the order impugned dated 21.07.2015 passed by the State Government is declared as without jurisdiction and being as such it is unsustainable. 13. In the result, the order dated 21.07.2015 passed by the State Government (Annexure No. 1 to the writ petition) is hereby quashed and the writ petition stands allowed. 14. There shall be no order as to costs. 15. This judgement is being delivered in terms of provisions, as contained under Chapter VII Rule 1(2) of the Allahabad High Court Rules, 1952.