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2020 DIGILAW 261 (ALL)

Sanjay Kumar Philip v. State of U. P.

2020-01-23

IRSHAD ALI

body2020
JUDGMENT : IRSHAD ALI, J. 1. Counter affidavit filed today may be taken on record. 2. Heard learned counsel for the petitioner, learned Standing Counsel for the respondent nos. 1, 2 and 4, Sri Anup Barnwal, learned counsel for respondent no. 5 and Sri Rup Naraiyan Misra, learned counsel for respondent no. 6. 3. By means of the present writ petition, the petitioner is challenging the order dated 13.10.2016 passed by the Director of Education (Secondary) U.P. Lucknow. It has further been prayed to call for the record and quash entire selection proceedings of the post Principal with a further direction to initiate fresh selection proceedings in accordance with Section 16 (FF) read with Regulation 17 of the Regulation framed under the U.P. Intermediate Education Act, 1921. 4. Factual matrix of the case is that Cutting Memorial, Varanasi is an recognized institution under U.P. Intermediate Education Act, 1921. The institution is a minority institution for the purposes of Article 30(1) of the Constitution of India, thus, the provisions of Uttar Pradesh Secondary Education Services Selection Board Act, 1982 is not applicable. The institution is receiving aid from the State Government, therefore, the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, is applicable to the said institution. Post of Principal in the aforesaid institution came into existence due to retirement of Sri Gilbert Susil Kumar on 30th June 2008. 5. The Committee of Management vide Resolution No. CM/CMIC-11(B) 12-13 dated 30th August, 2012 resolved to fill up the vacancy with the request to the Regional Joint Director of Education to sent his nominee from the panel of experts appointed by him. The vacancy was advertised in two News Papers i.e. Jan Sandesh (Hindi) and Pioneer (English) on 14.9.2012. The Regional Joint Director of Education sent panel of expert on 08.10.2012 by constituting a Section Committee. Selection was made wherein petitioner participated without any objection. The Selection Committee on the basis of quality point marks selected the respondent no. 6 on the post of Principal of the aforesaid Intermediate college. Papers were submitted before the Regional Joint Director of Education for the grant of approval as required under Section 16(FF) of the U.P. Intermediate Education Act, 1921. The Regional Joint Director of Education granted approval to the selection of the respondent no. 6 vide order dated 08.11.2012. 6. 6 on the post of Principal of the aforesaid Intermediate college. Papers were submitted before the Regional Joint Director of Education for the grant of approval as required under Section 16(FF) of the U.P. Intermediate Education Act, 1921. The Regional Joint Director of Education granted approval to the selection of the respondent no. 6 vide order dated 08.11.2012. 6. The petitioner filed Writ Petition No. 27172 of 2016, Sanjay Kumar Phillip vs. State of U.P. and Others before this court challenging the selection of the respondent no. 6 on the post of Principal of the college. The writ petition was finally disposed of with a direction to the petitioner to approach the Director of Secondary Education to ventilate his grievances with the direction to pass an appropriate order. In pursuance of the order, Director of Education after providing opportunity of hearing to the petitioner and respondent no. 6 passed an order on 13.10.2016 whereby the claim of the petitioner was rejected and the selection on the post of Principal was held to be correct. 7. The order of Director of Education along with the entire selection proceedings has been assailed by the petitioner in the present writ petition. 8. The first submission of the learned counsel for the petitioner is that it is the Manager of the institution who initiated proceedings of selection on the post of Principal of the Cutting Memorial College, Varanasi which is in violation of Regulation 17 of the Regulations framed under the Act, 1921. He next submitted that the selection committee was not constituted as per the provisions contained under the Act, 1921 and Regulation framed thereunder, thus, the selection vitiates in law. 9. He next submitted that the Director of Education (Secondary) U.P. Lucknow without considering the objection has passed the impugned order on 13.10.2016, thus, the order vitiates in law and cannot be sustained. His last submission is that although, the petitioner has participated in the selection without any objection but has right to challenge the same in case he is not selected in the said selection which is completed in a arbitrary manner. 10. On the other hand, learned counsel for the Committee of Management submits that the submission advanced by the learned counsel for the petitioner that it is the Manager who initiated proceeding without any resolution, is incorrect. 10. On the other hand, learned counsel for the Committee of Management submits that the submission advanced by the learned counsel for the petitioner that it is the Manager who initiated proceeding without any resolution, is incorrect. He submits that resolution No. CM/CMIC-11(B) 12-13 dated 30th June, 2008 was passed by the Committee of Management resolving to make selection by constituting a Selection Committee on the post of Principal of the concerned college. He next submitted that once the petitioner has participated in the selection initiated in pursuance to the advertisement issued then after participation defeated in the selection he has no right to challenge the same. He next submitted that the writ petition being misconceived, is liable to be dismissed with cost. 11. Sri Rup Naraiyan Misra, learned counsel appearing on behalf of the respondent no. 6 has also adopted the argument advanced by Sri Arun Agrawal, learned counsel representing the Committee of Management. 12. I have heard learned counsel for the parties and perused the material on record. 13. To resolve the controversy involved in the present writ petition, the provisions contained under 16-FF are being quoted herein-below: “16-FF. Savings as to minority institutions - (1) Notwithstanding anything in sub-section (4) of Section 16-E and Section 16-F, the Selection Committee for the appointment of a Head of Institution or a teacher of an institution established and administered by a minority referred to in Clause (1) of Article 30 of the Constitution shall consist of five members (including its Chairman) nominated by the Committee of Management: Provided that one of the members of the Selection Committee shall: (a) in the case of appointment of the Head of an institution, be an expert selected by the Committee of Management from a panel of experts prepared by the Director. (b) in the case of appointment of a teacher, be the Head of the Institution concerned. (2) The procedure to be followed by the Selection Committee referred to in sub-section (1) shall be such as may be prescribed. (3) No person selected under this section shall be appointed, unless:- (a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Deputy Director of Education. (b) in the case of a teacher such proposal has been approved by the Inspector. (3) No person selected under this section shall be appointed, unless:- (a) in the case of the Head of Institution the proposal of appointment has been approved by the Regional Deputy Director of Education. (b) in the case of a teacher such proposal has been approved by the Inspector. (4) The Regional Deputy Director of Education or the Inspector, as the case may be, shall not withhold approval for the selection made under this section where the person selected possesses the minimum qualification prescribed and is otherwise eligible. (5) Where the Regional Deputy Director of Education or the Inspector, as the case may be, does not approve of a candidate selected under this section the Committee of Management may, within three weeks from the date of receipt of such disapproval, make a representation to the Director in the case of the Head of Institution, and to the Regional Deputy Director of Education in the case of teacher. (6) Every order passed by the Director or the Regional Deputy Director of Education on a representation under sub-section (5) shall be final.” The provisions contained under Regulation 17 of regulations framed under U.P. Intermediate Education Act are being quoted herein below: “17. The procedure for filling up the vacancy of the head of institution and teachers by direct recruitment in any recognised institution referred to in Section 16-FF, shall be as follows: (a) After the management has determined the number of vacancies to be filled up by direct recruitment, the posts shall be advertised by the manager of the institution in at least one Hindi and one English newspaper having adequate circulation in the State giving particulars as to the nature (i.e. whether temporary/permanent) and number of vacancies, descriptions of post (i.e. Principal or Headmaster, Lecturer or L.T. or C.T. or J.T.C./B.T.C. grade teacher including the subject or subjects in which the lecturer or teacher is required), scale or pay and other allowances, experience required minimum qualification and age prescribed, if any, for the post and prescribing a date which should not ordinarily be less than two weeks from the date of advertisement) by which the applications shall be received by the Manager. A copy of the advertisement shall be simultaneously sent to the Inspector concerned. Notes:- (1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised. A copy of the advertisement shall be simultaneously sent to the Inspector concerned. Notes:- (1) All vacancies in the posts of teachers and the head of institution existing at the time of advertisement shall be advertised. (2) No new post shall be advertised unless sanction of the appropriate authority for the creation thereof has been received by the management. (b) All applications shall be made in the form prescribed by the management and shall contain all necessary particulars about qualifications, teaching experience and other activities and be accompanied by certified copies of all the necessary certificates and testimonials. The management may charge cost of the application form not exceeding the amount referred to in Clause (2) of Regulation 10. (c) An application by a person employed in an institution and applying for a post elsewhere or in the same institution shall not be withheld by his employer but shall be forwarded to the authority concerned immediately. (d) All applications received from the candidates shall be serially numbered and entered in a register and particulars of the candidates noted under appropriate columns. The candidates to be called for interview shall be seven for each post (the number of applicants, permitting). The Manager shall intimate by registered post all the members of the Selection Committee as well as all such candidates as are called for interview, the date, time and place of selection at least ten days before it is held. The Selection Committee will hold the selection accordingly. If on account of any unavoidable reason, the expert selected by the Committee of Management under Clause (a) of the proviso to sub-section (1) of Section 16-FF is unable to attend the selection on the date fixed the meeting of the Selection Committee shall be postponed. (e) The provisions of Clauses (e) and (f) of Regulation 10 and those of Regulations 11, 12 and 16 shall mutatis mutandis apply to selections made under this regulation. (e) The provisions of Clauses (e) and (f) of Regulation 10 and those of Regulations 11, 12 and 16 shall mutatis mutandis apply to selections made under this regulation. (f) A panel of experts consisting of fifteen or more persons selected from category (a) referred to in Regulation 14 shall be drawn by the Director for each region and be sent to the Regional Deputy Director of Education concerned, The Regional Deputy Director of Education shall out of the said panel communicate the names of three experts in a sealed cover to the management through its Manager as soon as he receives any request for supply of names of experts from him. The regional panel of experts shall, however, remain valid until it is replaced by a new one. ¼th½ fdlh in ds fy, leLr vH;fFkZ;ksa dk lk{kkRdkj dj fy, tkus ds i'pkr p;u lfefr dk lHkkifr fd;s x, p;u dh dk;Zokfg;ksa ij nks Áfr;ksa esa ,d fVIi.kh rS;kj djk,xk ftlesa pqus x, vH;FkhZ dk uke rFkk Árh{kk lwph ds nks vU; vH;fFkZ;ksa ds uke mfYyf[kr fd;s tk;saxsA bl Ádkj rS;kj dh xbZ fVIi.kh ij p;u lfefr ds lHkkifr rFkk vU; lnL; gLrk{kj djsaxs vkSj viuk&viuk uke iw.kZ uke] in uke vkSj irk rFkk fnukad mfYyf[kr djsaxs] lHkkifr bl fVIi.kh dh ,d Áfr rFkk fofu;e 10 ds [kaM ¼p½ esa fufnZ"V fooj.k dh ,d Áfr /kkjk 16 & pp ds v/khu ;Fkk visf{kr vuqeksnu ds fy,] ;FkkfLFkfr] laHkkxh; mi&f'k{kk funs'kd ;k fujh{kd dks rqjar vxzlfjr djsxk] lEcaf/kr vfHkys[kksa ds ÁkIr gksus ds fnukad ds ,d ekg ds Hkhrj ;FkkfLFkfr laHkkxh; mi&f'k{kk funs'kd ;k fujh{kd] mu ij viuk fu.kZ; ns nsaxs vkSj ,slk u djus ij vuqeksnu Ánku dj fn;k x;k le>k tk;sxkA** 14. On perusal of provisions referred herein above, it is evident that it prescribes full fledge procedure of initiation of proceedings and constitution of selection committee to make selection. 15. On perusal of the record, it is evident that a Resolution No. CM/CMIC-11(B) 12-13 dated 30th June, 2008 was passed by the Committee of Management resolving to make selection on the post of Principal by appointing a nominee from the panel of experts appointed by the Regional Joint Director of Education in the selection committee. Therefore, the submission of learned counsel for the petitioner that it is the decision of the Manager of the institution to initiate selection proceeding, cannot be accepted and is rejected. 16. Therefore, the submission of learned counsel for the petitioner that it is the decision of the Manager of the institution to initiate selection proceeding, cannot be accepted and is rejected. 16. The submission of learned counsel for the petitioner that selection committee was not constituted as per the Regulations. The averment made in this regard in the writ petition has been denied in the counter affidavit filed by the committee of management. According to the provisions of Section 16-FF, five member's committee was constituted to make selection on the post of Principal. It has further been stated that the selection committee was constituted wherein one of the nominees of the Regional Joint Director of Education from the panel of experts was present and thereafter, the selection committee considered the candidature of the candidates and being placed the respondent no. 6 at serial no. 1, recommended for appointment on the post of Principal of the College after obtaining approval as required under Section 16-FF of the Act of 1921. The petitioner in the writ petition has not disclosed that which of the provisions of the Regulations was violated in the constitution of the selection committed. Therefore, the submission advanced by the learned counsel for the petitioner in this regard is misconceived. 17. In regard to submission that Director of Education has not considered the claim of the petitioner while passing the impugned order, I perused the impugned order and on its perusal, it is evident that by recording cogent reasons on each objection of the petitioner, the Director of Education found the claim of the petitioner to be not legally sustainable in law. Thus, the submission in this regard is not tenable in law and is hereby rejected. The issue in regard to that if a candidate participated in a selection proceeding without any demur, whether he has right to challenge the same, was considered by this Court in Writ Petition No. 4896 of 2015, Sarita Shukla vs. State of U.P. and Others decided on 30.01.2015 and following observation has been made in paragraph No. 4: “This Court is also of the opinion that now after having participated in the counselling, it is not open to the petitioner to challenge the terms of the advertisement and the selection procedure, of which she was fully aware. A reference may be made to a decision of the Hon'ble Apex Court in the case of Amlan Jyoti Borooah vs. State of Assam and Others, (2009) 3 SCC 227 , paragraph 32 of which is quoted below: “Appellant, in our opinion, having accepted the change in the selection procedure sub silentio, by not questioning the appointment of 169 candidates, in our considered opinion, cannot now be permitted to turn round and contend that the procedure adopted was illegal. He is estopped and precluded from doing so.” This case stands on a even better footing inasmuch as there was no change in the selection procedure in the present case. Reference may also be made to various other decisions of Hon'ble Apex Court in H.V. Nirmala vs. Karnataka State Financial Corporation, (2008) 7 SCC 639 , Sadananda Halo vs. Mumtaz Ali Sheikh, (2008) 4 SCC 619 , Union of India vs. Vinodh Kumar and Others, (2007) 8 SCC 100 and Union of India vs. Chandradekaran (1998) 3 SCC 694 . In view of the aforesaid discussion, I do not find any merit in this petition and the same is, accordingly, dismissed.” 18. Similar view was taken by Hon'ble Supreme Court in the case of Dhananjay Malik and Others vs. State of Uttaranchal and Others, Civil Appeal No. 1771 of 2008 decided on 05.03.2008. Paragraph No. 8 and 9 of the judgment is being quoted below: “8. In Madan Lal vs. State of J&K, (1995) 3 SCC 486 , this Court pointed out that when the petitioners appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned, the petitioners took a chance to get themselves selected at the said oral interview. Therefore, only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed writ petitions. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. This Court further pointed out that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the present case, as already pointed out, the writ petitioners-respondents herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done. 9. In a recent judgment in the case of Marripati Nagaraja vs. The Government of Andhra Pradesh, (2007) 11 SCR 506 at p. 516 SCR this Court has succinctly held that the appellants had appeared at the examination without any demur. They did not question the validity of fixing the said date before the appropriate authority. They are, therefore, estopped and precluded from questioning the selection process.” 19. In the case of Ramesh Chandra Shah and Others vs. Anil Joshi and Others decided by Hon'ble Supreme Court on 03.04.2013 in Civil Appeal Nos. 2802-2804 of 2013 has held as under in paragraph Nos. 19 to 24: “19. One of the earliest judgments on the subject is Manak Lal vs. Dr. Prem Chand, AIR 1957 SC 425 . In that case, this Court considered the question whether the decision taken by the High Court on the allegation of professional misconduct leveled against the appellant was vitiated due to bias of the Chairman of the Tribunal constituted for holding inquiry into the allegation. The appellant alleged that the Chairman had appeared for the complainant in an earlier proceeding and, thus, he was disqualified to judge his conduct. This Court held that by not having taken any objection against the participation of the Chairman of the Tribunal in the inquiry held against him, the appellant will be deemed to have waived his objection. The appellant alleged that the Chairman had appeared for the complainant in an earlier proceeding and, thus, he was disqualified to judge his conduct. This Court held that by not having taken any objection against the participation of the Chairman of the Tribunal in the inquiry held against him, the appellant will be deemed to have waived his objection. Some of the observations made in the judgment are extracted below: “.........If, in the present case, it appears that the appellant knew all the facts about the alleged disability of Shri Chhangani and was also aware that he could effectively request the learned Chief Justice to nominate some other member instead of Shri Chhangani and yet did not adopt that course, it may well be that he deliberately took a chance to obtain a report in his favour from the Tribunal and when he came to know that the report had gone against him he thought better of his rights and raised this point before the High Court for the first time. From the record it is clear that the appellant never raised this point before the Tribunal and the manner in which this point was raised by him even before the High Court is somewhat significant. The first ground of objection filed by the appellant against the Tribunal's report was that Shri Chhangani had pecuniary and personal interest in the complainant Dr Prem Chand. The learned Judges of the High Court have found that the allegations about the pecuniary interest of Shri Chhangani in the present proceedings are wholly unfounded and this finding has not been challenged before us by Shri Daphtary. The learned Judges of the High Court have also found that the objection was raised by the appellant before them only to obtain an order for a fresh enquiry and thus gain time........... .......Since we have no doubt that the appellant knew the material facts and must be deemed to have been conscious of his legal rights in that matter, his failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver against him. It seems clear that the appellant wanted to take a chance to secure a favourable report from the Tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.” 20. It seems clear that the appellant wanted to take a chance to secure a favourable report from the Tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.” 20. In Dr. G. Sarna vs. University of Lucknow, (1976) 3 SCC 585 , this Court held that the appellant who knew about the composition of the Selection Committee and took a chance to be selected cannot, thereafter, question the constitution of the Committee. 21. In Om Prakash Shukla vs. Akhilesh Kumar Shukla, (1986) Supp. SCC 285, a three-Judge Bench ruled that when the petitioner appeared in the examination without protest, he was not entitled to challenge the result of the examination. The same view was reiterated in Madan Lal vs. State of J&K, (1995) 3 SCC 486 in the following words: “The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” 22. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576 , this Court reiterated the principle laid down in the earlier judgments and observed: “We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” 23. The doctrine of waiver was also invoked in Vijendra Kumar Verma vs. Public Service Commission, Uttarakhand, (2011) 1 SCC 150 and it was held: “When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.” 24. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.” 24. In view of the propositions laid down in the above noted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.” 20. In view of the above, I am of the considered opinion that the petitioner after participation and defeating in the selection proceeding cannot take U turn by challenging the selection proceeding. 21. Accordingly, no ground has been made out for interference in the impugned order in exercise of power under Article 226 of the Constitution of India. 22. The writ petition lacks merit and is hereby dismissed.