Committee of Management, Udit Narain Post-Graduate College vs Brij Bhushan Singh and Others

D.P. Mohapatra, C.J.—This Special Appeal is directed against the judgment dated 26.2.1996 in Civil Misc. Writ Petition No. 2503 of 1992, in which the learned single Judge allowed the writ petition and quashed the order dated 29.5.1992 (Annexure 23 to the writ petition) of the Regional Higher Education Officer, Gorakhpur, Respondent No. 5. In the impugned order, Respondent No. 5 cancelled the order previously passed by him on 12.3.1992 according approval to the appointment/promotion of the writ Petitioners, who are Respondents No. 1 to 3 in this appeal.

The factual backdrop of the case relevant for appreciating the points raised in the appeal may be stated thus:

Respondents No. 1 to 3 filed the aforementioned writ petition against the Director of Higher Education, Uttar Pradesh (Respondent No. 4), Regional Higher Education Officer, Gorakhpur (Respondent No. 5), Regional Deputy Director of Education, Gorakhpur (Respondent No. 6), District Inspector of Schools (Respondent No. 7), District Magistrate, Deoria (Respondent No. 8), and Committee of Management, Udit Narain Post Graduate College, Padrauna (Appellant), praying, inter alia, for a writ of certiorari quashing the order dated 29.5.1992 (Annexure 23) and a writ of mandamus restraining Respondents No. 4 to 8 and the Appellant from interfering with the functioning of the Petitioners in their respective posts of Laboratory Assistant (Botany) and Routine Grade Clerk.

On being selected by the Selection Committee of the College, Brij Bhushan Singh (Respondent No. 1) was appointed in the post of Laboratory Assistant (Botany), Vijai Kumar (Respondent No. 2) was appointed as Routine Grade Clerk and Prabhu Nath (Respondent No. 3) was promoted to the post of Routine Grade Clerk in a leave vacancy. The Regional Higher Education Officer accorded approval to their appointment/promotion on 11.3.1992 and appointment letters were issued to the said Respondents on 12.3.1992. On a letter addressed by the District Magistrate, Deoria questioning the validity of appointment/promotion of Respondents No. 1 to 3, the Regional Higher Education Officer passed the order dated 29.5.1992, cancelling the approval order passed by him on 11.3.1992. As the order shows, the District Magistrate informed the Regional Higher Education Officer that neither did he himself take part in the Selection Committee nor did he nominate any member of the Committee of Management to take part in the said selection, nor did he authorise any body to get the selection conducted. It is further stated in the order of the Regional Higher Education Officer that it had been recited in the order according approval to the appointment/promotion of Respondents No. 1 to 3 that in case any fact had been concealed with regard to the appointment/promotion, then upon such facts coming to light, the approval would become illegal and would automatically stand cancelled; on the basis of the said recital and in view of the information subsequently received from the District Magistrate, the Regional Higher Education Officer felt impelled to cancel the approval order.

The learned single Judge in his judgment observed:

...The documents enclosed to the letter dated 29.2.1992 being the letter asking for approval show that the Selection Committee was constituted of three persons and it did not include the District Magistrate. Neither the counter-affidavit nor any material disclosed in course of hearing shows that approval was obtained contending that the Selection Committee included the District Magistrate. Accordingly I find that there was no material in passing the impugned order to conclude that any suppression of relevant material was made detection whereof justified the cancellation of the approval. Thus, the impugned order passed on the sole ground is found to be a non-existent ground.

The learned single Judge also observed in the order that in the impugned order, the Regional Higher Education Officer has reviewed his previous order, for which he has no competence, since no power of review is vested in him by any statute or statutory rule applicable to the matter.

The thrust of the submissions of Sri Ashok Khare, learned Counsel for the Appellant, was that the learned single Judge erred in quashing the order of cancellation of approval without determining the question whether the appointment/promotion of Respondents No. 1 to 3 was legally sustainable. Elucidating the point, he submitted that the appointment/promotion of Respondents No. 1 to 3 was not made in accordance with, and in the manner prescribed under the provisions of Statute 25.06 of the first Statute of the Gorakhpur University, which is applicable to the case.

Sri R. N. Singh, learned Counsel for Respondents No. 1 to 3, on the other hand, submitted that since the Regional Higher Education Officer cancelled the approval order on the sole ground that the order had been obtained by suppression of the material fact that the District Magistrate had neither himself participated in the selection process nor nominated or authorised any other person to participate in it on his behalf, the learned single Judge was right in quashing the impugned order dated 29.5.1992, on the findings recorded in his judgment.

On the case of the parties as discussed in the foregoing paragraphs, the core question is whether the Petitioners No. 1 and 2 were selected by a legally constituted Selection Committee. The learned single Judge found that the Regional Higher Education Officer, Gorakhpur had no jurisdiction to review his order granting approval to the appointment of the Petitioner-Respondents by his impugned order dated 29th May, 1992 and there was nothing before him to show that fraud was practised in the matter. But no finding has been recorded whether the Regional Higher Education Officer could accord approval to the appointment of the Petitioner-Respondents without applying his mind to the question whether their appointments were made by a duly constituted Selection Committee, The Petitioners cannot claim any right of appointment on the basis of selection by a committee which is not legally constituted.

Udit Narain Post Graduate College, Padrauna is affiliated to Gorakhpur University and is governed by the provisions of Ist Statute of Gorakhpur University. The selection for appointment to the post of Librarian, Deputy Librarian or Physical Training Instructor is governed by Clause (1) of Statute 25.06 and the other posts in question are governed by the provisions of Clause (2) of Statute 25.06 which reads as under:

25.06. (1) The Selection Committee for appointment to the post of Librarian, Deputy Librarian or Physical Training Instructor shall consist of:

(i) the Head of the Management or a member of the management nominated by him, who shall be the Chairman;

(ii) the Principal of the College;

(iii) one officer to be nominated by the Director of Education (Higher Education).

(2) The Selection Committee for appointment to the remaining posts referred to in Statute 25.01 or Statute 25.03 either by direct recruitment or by promotion shall consist of:

(i) the Head of the Management or a member of the management nominated by him who shall be the Chairman;

(ii) the Principal of the College;

(iii) the District Inspector of Schools;

(iv) the District Employment Officer or an officer authorised by him in this behalf.

Bye-law No. 14 of the Managing Committee of the College provides that the District Magistrate, Deoria shall be ex officio President of the Managing Committee and bye-law No. 15 provides that the Vice-President shall preside over the meetings in the absence of the President and will perform all the duties and exercise all the powers as are delegated to him in writing by the President. It is not denied that the Respondents No. 1 and 2 were selected by a Selection Committee consisting of:

(1) Manager of the College,

(2) Principal of the College,

(3) District Inspector of Schools, Deoria.

The District Magistrate was the Head of the Management and he was to function as Chairman of the Selection Committee as provided under Clause (2) of Para 25.06 of the Statute. The Manager of the College was not entitled to participate in the selection unless he was authorised by the District Magistrate. The Petitioner averred in the writ petition that the District Magistrate was intimated to participate in the Selection Committee but he neither participated in the Selection Committee nor sent any representative on 4th June, 1992 when the Selection took place.

A counter-affidavit has been filed on behalf of the Director of Higher Education, in which this fact has been denied. It is a question of fact whether the District Magistrate was duly intimated about the date of selection. The District Magistrate had, admittedly, sent a letter dated 26th May, 1992, intimating to the Higher Education Officer that he was not present at the time of selection nor he had nominated any member of the Managing Committee to participate in the selection. This is a question of fact, which needs to be investigated and a finding has to be recorded by Respondent No. 5.

Even assuming that the District Magistrate was sent an information that on a particular date he is to participate in the selection or nominate any person to participate in such selection and if he failed to perform his duty as provided in the Statute and the bye-laws of the Committee of Management, the selection held a his absence cannot be held to be valid. In case he fails to discharge his duty, it is only the Vice-President who, under the bye-laws, can preside over the meeting and perform his duty on the basis of delegation of power by the President to him. The Manager of the College has not been entrusted with any power under the bye-laws or under the provisions of the Statute to participate in the Selection Committee. The Regional Higher Education Officer did not consider these aspects of the matter. The Petitioner-Respondents can claim right of appointment only when they establish that their selection was made by a duly constituted Selection Committee as provided under Statute 25.06 of the First Statute of the Gorakhpur University.

The learned single Judge found that the Petitioner-Respondents were not afforded any opportunity of hearing and Respondent No. 5 could not review/recall the order without affording any opportunity of hearing. But while setting aside the order, it was necessary that he should have remitted the matter for reconsideration by the Regional Higher Education Officer in accordance with law. As regards Petitioner-Respondent No. 3, he was claiming appointment on the basis of his right of promotion. He was being appointed in a leave vacancy which later on became a permanent vacancy. Para 26.06 of the Statute provides for selection of the candidates but there is no such provision of appointment by promotion. The right of Petitioner No. 3 was to be considered independently.

In the result, the Special Appeal is allowed and the matter is remitted to the Regional Higher Education Officer, Respondent No. 5, to consider whether the selection of the Respondents No. 1 and 2 was valid and further whether the claim of Respondent No. 3 to be promoted to higher grade was justified. Respondent No. 5 shall decide the matter keeping in view the observations made above and in accordance with law, within three months from the date of production of a certified copy of this order before him, after giving an opportunity of hearing to the Petitioner-Respondents and Respondents No. 7 and 8 and such other persons who may be affected by the order.

There shall be no order as to costs.