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2022 DIGILAW 1573 (ALL)

Rajeev Kumar v. Kamlesh Kumar Singh

2022-09-28

DEVENDRA KUMAR UPADHYAYA, SAURABH SRIVASTAVA

body2022
JUDGMENT : 1. This intra-court appeal filed under Chapter VIII Rule 5 of the Rules of the Court lays a challenge to the judgment and order dated 07.09.2022, passed by the learned Single Judge in Writ-C No.2957 of 2022 whereby after setting aside the order of the State Government dated 12.05.2022, nominating the appellant as Chairman of the Committee of Management of Town Polytechnic, Ballia, a direction has been given to the Committee of Management of Town Polytechnic, Ballia to take decision afresh for preparing a panel of three persons and to forward the same to the Director, Technical Education, U.P. who, in turn, has been directed to forward the same to the State Government whereupon the State Government has been directed to take decision nominating Chairman of the Committee of Management of the said institution. 2. Heard Dr. L.P. Mishra along with Ms. Neha Chaddha and Sri Prafulla Tewari, learned counsel representing the appellant, Sri Anand Kumar Singh, learned State Counsel representing the State-respondents, Sri Amrendra Nath Tripathi along with Sri Anas Sherwani, learned counsel representing the respondent No.1-petitioner and perused the record available before us on this Special Appeal. 3. Before adverting to the rival submissions advanced by learned counsel representing the parties, it is apposite to note certain facts of the case which are necessary for appropriate adjudication of the issues involved in this case. 4. Town Polytechnic, Ballia is an institution which is governed by the provisions of U.P. Technical Education Act, 1962 and the regulations framed under the said Act. The State has approved a Scheme of Administration which, inter-alia, provides for constitution of the Committee of Management to be headed by a Chairman who is to be nominated by the State Government. 5. The controversy in this case commenced with the occurrence of a vacancy in the office of the Chairman of the Committee of Management of the institution. Clause 7 of the approved Scheme of Administration provides that Chairman of the Committee of Management shall be nominated by the State Government. 5. The controversy in this case commenced with the occurrence of a vacancy in the office of the Chairman of the Committee of Management of the institution. Clause 7 of the approved Scheme of Administration provides that Chairman of the Committee of Management shall be nominated by the State Government. As per Clause 7(2)(v) of the Scheme of Administration, the Committee of Management will send a panel of three persons for appointment of Chairman of the Committee of Management to the Director, Technical Education, U.P. It further provides that the State Government on the recommendation of the Director, Technical Education, U.P. shall appoint one of the three persons of the panel which may be proposed by the Committee of Management. Clause 7(2)(c) of the Scheme of Administration provides that in case the State Government does not nominate any of the person from the panel, the Committee of Management shall propose the second panel containing three names who shall be different from the persons proposed in the first panel. Clause 7 of the approved Scheme of Administration is quoted herein under : ^^¼7½ v/;{k izcU/k lfefr dh fu;qfDr& ¼1½ izca/k lfefr dk v/;{k mŒizŒ 'kklu }kjk ukfer fd;k tk;sxkA 2¼v½ laLFkk dh lkslkbVh dh laLrqfr ij izca/k lfefr rhu ukeksa dk iSuy ¼vko';d ugah fd blds lnL; gks½ v/;{k izca/k lfefr dh fu;qfDr gsrq funs'kd izkfof/kd f'k{kk mŒizŒ dks HkstsxkA funs'kd izkfof/kd f'k{kk dh laLrqfr ij mŸkj izns'k 'kklu rhu ukeks ds iSuy es ls fdlh ,d O;fDr dks v/;{k izca/k lfefr ds in ij ukfer dj ldrk gSA 2¼c½ ;fn 'kklu }kjk mijksDr iSuy es ls fdlh O;fDr dks v/;{k in gsrq ukfer ugha fd;k tkrk gS rks laLFkk dh izca/k lfefr }kjk rhu ukeks dk nwljk iSuy laLrqr fd;k tk;sxk tks izFke iSuy esa 'kkfey rhu ukeksa ls fHkUu gksxsA^^ 6. On occurrence of vacancy in the office of the Chairman of the Committee of Management of the institution, a meeting of Committee of Management is said to have taken place on 25.11.2020 which prepared a panel of three persons, namely, (1) Sri Arvind Kumar Srivastava, (2) Sri Rajiv Kumar and (3) Sri Ajay Kumar Ojha. The decision taken by the Committee of Management in its meeting dated 25.11.2020 was communicated by the Secretary of the Committee of Management to the Director, Technical Education, U.P. by means of his letter dated 26.11.2020. The decision taken by the Committee of Management in its meeting dated 25.11.2020 was communicated by the Secretary of the Committee of Management to the Director, Technical Education, U.P. by means of his letter dated 26.11.2020. The Director, Technical Education, vide his letter dated 01.12.2020 recommended that out of the aforesaid three persons in the panel prepared by the Committee of Management, Sri Arvind Kumar Srivastava be nominated as Chairman of the Committee of Management of the institution. However, before the State Government could take decision on the panel proposed by the Committee of Management and the recommendation made by the Director, Technical Education by means of letter dated 01.12.2020, Sri Arvind Kumar Srivastava died and accordingly a letter was written by the Secretary of the Committee of Management of the institution to the Director, Technical Education on 06.01.2021 intimating him about the death of Sri Arvind Kumar Srivastava and further intimating that Sri Kamlesh Kumar Singh (respondent No.1-petitioner) has been nominated as officiating Chairman till the meeting of the Committee of Management is convened and the Committee of Management appoints an officiating Chairman. 7. The Director, Technical Education on the said letter dated 06.01.2021 approved the nomination/appointment of Sri Kamlesh Kumar Singh as officiating Chairman till the Committee of Management elected its new officiating Chairman, vide letter dated 13.01.2021. It, thus, appears that the nomination of Sri Kamlesh Kumar Singh was an interim arrangement which was to last till Committee of Management nominated a new officiating Chairman. By the said letter, a direction was issued by the Director, Technical Education to the Joint Director, Technical Education, Varanasi to convene a meeting of the Committee of Management within 15 days for preparing a panel of three names till nomination of regular Chairman is made. 8. The Committee of Management held its meeting on 24.01.2021 and decided to cancel the earlier panel and further resolved to nominate a panel of three persons, namely, (1) Sri Kamlesh Kumar Singh, (2) Sri Sudhir Kumar Srivastava and (3) Sri Kamlesh Kumar Srivastava. It was also resolved that till the regular Chairman is nominated by the State Government, Sri Kamlesh Kumar Singh shall continue to officiate on the said post. It was also resolved that till the regular Chairman is nominated by the State Government, Sri Kamlesh Kumar Singh shall continue to officiate on the said post. The new panel as resolved by the Committee of Management was sent to the Director, Technical Education by means of letter dated 27.01.2021 whereupon the Director, Technical Education by means of his letter dated 22.02.2021 sent the penal to the State Government with his recommendation to nominate Sri Kamlesh Kumar Singh, who was placed at Serial No.1 of the new panel, as Chairman of the Committee of Management. The State Government wrote a letter to the Director on 22.12.2021 after seeking legal advice from the Law Department and sought clear proposal in the light of the legal opinion tendered by the Law Department. 9. A perusal of the letter dated 22.12.2021 addressed to the Director, Technical Education and written by the State Government reveals that the Law Department had opined that in case of death of a person in the earlier panel, the panel will not be incomplete nor will it lapse. 10. The Director, Technical Education thereafter wrote a letter dated 24.12.2021 in pursuance of the letter of the State Government dated 22.12.2021 making a recommendation that the decision for nomination of the Chairman be taken pursuant to the earlier proposal dated 01.12.2020. On the said recommendation made by the Director, Technical Education, the State Government took a decision to nominate the appellant as Chairman of the Committee of Management of the institution which is embodied in the order dated 12.05.2022. It is this order dated 12.05.2022 appointing the appellant as Chairman of the Committee of Management of the institution which was challenged by the respondent No.1-petitioner in the writ petition, which has been decided by means of judgment and order dated 07.09.2022, passed by the learned Single Judge, which is under appeal before us. 11. Learned counsel for the appellant has vehemently argued that merely because of the death of one of the persons named in the earlier panel, namely, Sri Arvind Kumar Srivastava, the earlier panel could not be treated to have lapsed or defective in any manner. 11. Learned counsel for the appellant has vehemently argued that merely because of the death of one of the persons named in the earlier panel, namely, Sri Arvind Kumar Srivastava, the earlier panel could not be treated to have lapsed or defective in any manner. It has further been argued by the learned counsel for the appellant that the State Government thus has acted lawfully by passing the order dated 12.05.2022 nominating the appellant as Chairman of the Committee of Management of the institution and there is no illegality in the said order. It has also been argued on behalf of the appellant that on receipt of the earlier panel with the recommendation of the Director, Technical Education, before the State Government could act upon and take decision to nominate one of the persons named in the earlier panel as Chairman of the Committee of Management of the institution, Sri Arvind Kumar Srivastava died and on account of his death the panel did not lapse and accordingly the State Government has rightly acted upon the earlier panel and has lawfully appointed the appellant as Chairman of the Committee of Management of the institution. 12. Dr. Mishra further arguing on behalf of the appellant has submitted that on receipt of the earlier panel since the death of one of the persons occurred before the decision on the said panel could be taken by the State Government, the State had three options. The first option available to the State Government was that it could have appointed one of the two remaining persons in the first panel, secondly, it could have rejected the panel of remaining two persons and thirdly, the State Government could have asked for one additional name by the Committee of Management. His submission, thus, is that it was not open to the Committee of Management to have cancelled the earlier panel and proposed the new panel for the reason that earlier panel had not exhausted on account of the fact that Government had not taken any decision on the same and in absence of any defect or lapse in the earlier panel, on account of death of Sri Arvind Kumar Srivastava it was incumbent upon the State Government to have taken the decision. He further states that however, in its discretion, the State Government could have rejected the remaining two names from the first panel and it is only after such decision that the Committee of Management would have assumed the jurisdiction to nominate a fresh panel. On behalf of the appellant, it has, thus, been argued that learned Single Judge has not correctly construed the provisions of Clauses 7(2)(v) and 7(2) (c) of the approved Scheme of Administration and has thus arrived at the conclusion which is not borne out from the said provisions. Further submission of the learned counsel for the appellant is that in the aforesaid view of the matter the finding recorded by the learned Single Judge that the first panel of three names stood lapsed on account of death of one of the persons in the panel, is not as per the Scheme of Administration. 13. It has also been urged on behalf of the appellant that Clauses 7(2)(v) and 7(2)(c) of the Scheme of Administration appear to have been misread by the learned Single Judge and he records a finding that in all exigencies, the State Government can act upon only in case where all the three persons in the panel suggested by the Committee of Management are surviving. It has thus been urged on behalf of the appellant that the judgment and order passed by the learned Single Judge is erroneous which deserves to be set aside and the Special Appeal deserves to be allowed. 14. Learned State Counsel while arguing on behalf of the State-respondents has submitted that the order passed by the State Government, dated 12.05.2022 whereby the appellant was nominated as Chairman of the Committee of Management does not suffer from any illegality and, in fact, the same is in accordance with the approved Scheme of Administration, as such the said order did not warrant any interference by the learned Single Judge in the writ petition filed by the respondent No.1- petitioner. 15. Sri Amrendra Nath Tripathi, learned counsel representing the respondent No.1-petitioner has argued that the order dated 13.01.2021 whereby the Director, Technical Education had required the Committee of Management to send a fresh panel, was not challenged and in absence of challenge to the said order, the earlier panel could not have been acted upon and accordingly no appointment from the earlier panel could have been made. He has further argued that the Committee of Management had decided in its meeting held on 24.01.2021 to cancel the earlier panel which power is vested in the Committee of Management and accordingly nomination of Chairman from the panel which stood cancelled by the Committee of Management, could not have been made. His submission is that once the fresh panel was proposed the earlier panel ceased to exist. Sri Tripathi also argued that the decision dated 12.05.2022, passed by the State Government suffers from the vice of non-application of mind as the same is based on solely on the opinion of the Law Department and the authority passing the said order does not appear to have applied his independent mind. It has further been argued that the earlier panel could not have been acted upon for the reason that the panel included a dead person (Arvind Kumar Srivastava). 16. It has also been submitted by the learned counsel representing the respondent No.1-petitioner that Clause 7(2)(v) uses the words, ‘a panel of three ( rhu ukeksa dk iSuy )’ and on the death of Sri Arvind Kumar Srivastava, the panel comprised of only two living persons and hence in absence of panel of three persons, as envisaged in Clause 7(2)(v) of the Scheme of Administration, the State Government erred in appointing the appellant from the said panel of two persons as Chairman of the Committee of Management of the institution. In this view, the submission is that such course to the State Government was not available in absence of panel of three living persons. He has thus argued that the learned Single Judge while passing the judgment and order under appeal herein has taken the correct view in the matter and has rightly interpreted the provisions of Clauses 7(2) (v) and 7(2)(c) of the Scheme of Administration and has, thus, rightly set aside the order of State Government, dated 12.05.2022, appointing the appellant as Chairman of the Committee of Management of the institution. He, thus, prays that the Special Appeal may be dismissed at its threshold. 17. He, thus, prays that the Special Appeal may be dismissed at its threshold. 17. On consideration of the rival submissions made by the learned counsel for the respective parties, the point for consideration which emerges in this case is as to whether in terms of the provisions contained in Clauses 7(2)(v) and 7(2)(c) of the Scheme of Administration, the State Government could have acted upon the earlier panel and whether appointment from the said panel could have been made, though one of the persons of panel suggested by the Committee of Management of the institution, had died. 18. The answer to the point for determination, as culled out above, lies in correctly interpreting the provision contained in Clause 7(2)(c) of the Scheme of Administration. The said provision clearly states that in case no one is nominated as Chairman of the Committee of Management of the institution from amongst the persons of the panel suggested by the Committee of Management, the Committee of Management shall submit a second panel containing three names. 19. The question, thus, is as to when does the Committee of Management assumes the jurisdiction to recommend/propose/send the second panel. A plain reading of Clause 7(2)(c) of the Scheme of Administration reveals that second panel can be recommended/sent/proposed by the Committee of Management only if the State Government does not nominate any person from the first panel. It would simply mean that the Committee of Management will assume jurisdiction to recommend the second panel if the State Government rejects all the names in the first panel and refuses to nominate anyone of them. 20. In the instant case, the process of nomination of Chairman in case of any vacancy in the office of Chairman will start from the resolution of the Committee of Management proposing a panel of three persons, as per Clause 7(2)(v) of the approved Scheme of Administration. The process further proceeds with the recommendation to be made by the Director, Technical Education, U.P. on the panel suggested/sent/proposed by the Committee of Management and this process comes to an end only once the decision on the panel proposed/sent/suggested by the Committee of Management and on the recommendation made by the Director, Technical Education, is taken by the State Government. The process thus terminates only once the decision is taken by the State Government. The process thus terminates only once the decision is taken by the State Government. In our considered opinion, the Committee of Management will assume jurisdiction to propose/send/suggest the second panel only on completion/termination of the process which commences proposal/submission of first panel by the Committee of Management. 21. If we analyze the facts of this case, what we find is that before the process which commenced on resolution of the Committee of Management proposing three names in the first panel could logically culminate in the decision by the State Government, the Committee of Management cancelled the earlier panel and proposed a new panel. Such a course, in our considered opinion, is not envisaged, neither is it provided for in the Clauses 7(2)(v) and 7(2)(c) of the approved Scheme of Administration. 22. Admittedly, before final decision on the first panel as proposed by the Committee of Management could be taken by the State Government, one person on the said panel died, however, the fact remains that no final decision on the first panel was taken by the State Government and accordingly, in our considered opinion, the Committee of Management did not have any jurisdiction to suggest/send/propose the second panel. 23. In the aforesaid back-ground, when we look at the judgment rendered by the learned Single Judge, the same appears to be based on erroneous interpretation of Clause 7(2)(c) of the approved Scheme of Administration. Learned Single Judge has opined that the intent and purpose of the said provision is that the State Government should get an opportunity to nominate the person as a Chairman out of three persons at the first instance and if the State Government does not take a decision the name of three different persons is to be forwarded. 24. We are unable to agree with the aforesaid finding recorded by learned Single Judge regarding interpretation of Clause 7(2)(c) of the approved Scheme of Administration. Forwarding the name of three different persons as second and subsequent panel is not envisaged in a situation where the State Government does not take decision. It is rather permissible only if the State Government takes a decision and does not nominate any of the person from the panel. “Not taking decision” and “not nominating” are two different acts. Forwarding the name of three different persons as second and subsequent panel is not envisaged in a situation where the State Government does not take decision. It is rather permissible only if the State Government takes a decision and does not nominate any of the person from the panel. “Not taking decision” and “not nominating” are two different acts. Clause 7(2)(c) states that the Committee of Management shall recommend second panel in case the State Government does not nominate a person to be Chairman. Thus, pending decision by the State Government Committee of Management will not get authority to recommend the second panel. It thus follows that the basic premise on which the learned Single Judge has interpreted the Clause 7(2)(c) of the approved Scheme of Administration, in our opinion, is erroneous. 25. Any panel prepared by the Committee of Management and forwarded after recommendation by the Director, Technical Education will exhaust only on decision on the said panel is taken by the State Government. Insistence of the learned counsel representing the respondent No.1-petitioner that it will be incumbent upon the State Government to take decision to nominate the Chairman only if the panel consists of three persons in all circumstances and situations, is thus, in our opinion, not correct. The question or point for preparation of second panel in terms of the provision contained in Clause 7(2)(c) of the approved Scheme of Administration will arrive only if the process gets completed and the process initiated on the resolution of the Committee of Management nominating a panel of three persons will get concluded only once the decision by the State Government is taken. 26. We may also consider as to what is the impact of consideration by the State Government for nomination of Chairman of the Committee of Management from the panel of two persons only which situation in this case had arisen on account of death of third person of the panel. It is to be seen that all the three persons in the panel form collective choice of the Committee of Management. Even if, on account of such exigency as death the panel shrinks to two persons, before final decision for nomination is taken by the State Government, the person who may be nominated as Chairman will still be the choice of Committee of Management. 27. Even if, on account of such exigency as death the panel shrinks to two persons, before final decision for nomination is taken by the State Government, the person who may be nominated as Chairman will still be the choice of Committee of Management. 27. To be included in the panel for nomination as Chairman by the Committee of Management cannot be said to be right of any individual. It is the right of the Committee of Management conferred on it by the Clause 7(2)(v) of the approved Scheme of Administration to prepare a panel of three persons of its choice. Since the remaining two persons on the first panel were also the persons of choice of the Committee of Management, as such by shrinkage of panel of three persons to two, no individual right gets infringed and accordingly, in our opinion, for this reason as well the conclusion arrived at by the learned Single Judge regarding interpretation of Clause 7(2)(c) of the approved Scheme of Administration appears to be erroneous. 28. Thus, submission made by Sri Amrendra Nath Tripathi, learned counsel representing the respondent No.1-petitioner that on cancellation of earlier panel and preparation of fresh panel, the earlier panel was non-existent, in our opinion, is not acceptable for the reason that the occasion for the Committee of Management to prepare new panel did not arise in this case as the State Government had not taken any decision on the first panel before the second panel was proposed by the Committee of Management. 29. As far as the submission made by Sri Tripathi that the decision of the State Government cannot be said to be the decision emanating from independent application of mind by the authority who took decision is concerned, we may only observe that different departments of the State Government have been created for convenience. Any decision of the State Government in a particular department, even if it is based on opinion of Law Department or any other department, cannot be said to be vitiated merely because opinion of some other department was taken before arriving at the decision in question. 30. Sri Tripathi has also argued that in absence of challenge to the order dated 13.01.2021, passed by the Director, Technical Education whereby a fresh panel was invited, the procedure which followed thereafter cannot be faulted with. 31. 30. Sri Tripathi has also argued that in absence of challenge to the order dated 13.01.2021, passed by the Director, Technical Education whereby a fresh panel was invited, the procedure which followed thereafter cannot be faulted with. 31. If we consider the aforesaid argument of Sri Tripathi, we do not find ourselves in agreement with him for the reason that the letter of the Director, Technical Education, dated 13.01.2021 was only an intermediate step in the process which culminated in the decision of the State Government finally taken on 12.05.2022 whereby the appellant was nominated as a Chairman of the Committee of Management. 32. In view of the discussion made and reasons given above, we are unable to find ourselves in agreement with the judgment and order passed by learned Single Judge, which is under appeal herein. 33. Resultantly, the Special Appeal is allowed and the judgment and order dated 07.09.2022, passed by learned Single Judge in Writ-C No. 2957 of 2022 is hereby set aside. 34. Consequences to follow. 35. There will be no order as to costs.