Dayanand Anglo Vedic (D.A.V.) Post Graduate College & Others vs State Of Uttarakhand & Others

Sudhanshu Dhulia, J

All these three petitions relate to the selection/appointment and alleged anomalies in the two post graduate colleges in Dehradun called Dayanand Anglo Vedic Post Graduate College (from hereinafter referred to as "D.A.V. (P.G.) College") and Dayanand Bijendra Swarup Post Graduate College (from hereinafter referred to as "D.B.S. (P.G.) College"). Both these colleges are situated in Dehradun and are being run by a common society called "Dayanand Shiksha Sansthan". The management of the two colleges is, however, different.

Although these writ petitions before this Court relate by and large to a common issue, yet while giving the factual reference, the reference would be of Writ Petition (M/S) No. 1027 of 2019, which relates to D.A.V. (P.G.) College.

On 06.07.2016, permission was granted by the Director, Higher Education for filling up 53 vacant posts of teaching as well as non-teaching staff in the aforesaid two colleges. Subsequently, the Management of the College issued an advertisement in three newspapers i.e. "Hindustan", "Dainik Jagran" and "Amar Ujala". Meanwhile, a complaint was received by the State Government from some quarters, regarding the selection process and in pursuance of that complaint, an order was passed on 04.12.2017 by the Additional Secretary, Government of Uttarakhand directing the Director, Higher Education to stop the ongoing selection process in the College. When the petitioner was asked by the Director, Higher Education to stop the ongoing selection process, the Management of the college wrote back to the State Government vide representation dated 07.01.2018 stating that there are no anomalies going on in the selection process and the complaint, if any, which is not even been served on the Management has absolutely no basis.

In pursuance of the representation made by the Management of the D.A.V. (P.G.) College, the State Government passed an order on 04.07.2018 granting permission to the Management to continue with the selection/appointment of only the teaching staff of the two Colleges. Consequently the selection process which was already on continued and some of the teachers were selected and subsequently recommended for appointment by the Selection Committee and these recommendations were forwarded to the Vice-Chancellor of the H.N.B. Garhwal University on 18.08.2018. The names so recommended for the selection were given approval by the Vice-Chancellor on 02.11.2018 and subsequently appointments were made. Meanwhile, vide order dated 10.09.2018, the earlier permission granted by the State Government on 04.07.2018 to make selection/appointment of teachers was stayed by the State Government. Having done this, some of the teachers who have been appointed and who have been teaching in the college are not getting their salary. This is a different issue which will be dealt with in a while.

Meanwhile, the Management of D.A.V. (P.G.) College received a notice on 11.12.2018 from the State Government stating that the petitioner has committed gross anomalies and irregularities while making selection in the clerical cadre and why an action should not be taken against it under Sections 57 and 58 of the U.P. State Universities Act, 1973.

Sections 57 and 58 of the U.P. State Universities Act, 1973 read as under:-

"57. Power of the State Government to issue notice.- If the State Government receives information in respect of any affiliated or associated college (other than a college maintained exclusively by the State Government or a local authority)-

(i)         that its management has persistently committed wilful default in paying the salary of the teachers or other employees of the college by the twentieth day of the month next following the month in respect of which or any part of which it is payable; or

(ii)        that its management has failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring the maintenance of academic standards in relation to the college or has appointed or retained in service any teacher in contravention of the Statute or Ordinances or has failed to comply with the orders of the Director of Education (Higher Education) made on the basis of the recommendation of the Uttar Pradesh Higher Education Service Commission under the Uttar Pradesh Higher Education Services Commission Act, 1980, or

(iii)       that any dispute with respect to the right claimed by different person to be lawful office-bearers of its Management has affected the smooth and orderly administration of the college; or

(iv)       that its management has persistently failed to provide the college with such adequate and proper accommodation, library, furniture, stationery, laboratory, equipment and other facilities, as are necessary for efficient administration of the college; or

(v)        that its Management has substantially diverted, misapplied or misappropriated the property of the college to the detriment of the college; it may call upon the Management to show cause why an order under Section 58 should not be made :

Provided that where it is in dispute as to who are the office-bearers of the Management, such notice shall be issued to all persons claiming to be so.

Authorised Controller.- (1) If the State Government after considering the explanation, if any, submitted by the Management under Section 57 is satisfied that any ground mentioned in that section exists, it may, by order, authorise any person (hereinafter referred to as the Authorised Controller) to take over, for such period not exceeding two years as may be specified, the Management of the college and its property to the exclusion of the Management and whenever the Authorised Controller so takes over the Management, he shall, subject only to such restrictions as State Government may impose, have in relation to the Management of the college and its property all such powers and authority as the Management would have if the college and its property were not taken over under this sub-section :

Provided that if the State Government is of opinion that it is expedient so to do in order to continue to secure the proper Management of the colleges and its property, it may, from time to time, extend the operation of the order for such period, not exceeding one year at a time, as it may specify, so however, that the total period of operation of the order, including the period specified in the initial order under this sub-section does not exceed five years :

Provided further that if at the expiration of the said period of five years, there is no lawfully constituted Management of the college the Authorised Controller shall continue to function as such, until the State Government is satisfied that the Management has been lawfully constituted :

Provided also that the State Government may, at any time, revoke an order made under this sub-section.

(2) Where the State Government while issuing a notice under Section 57 is of opinion, for reasons to be recorded that immediate action is necessary in the interest of the college, it may suspend the Management, which shall thereupon cease to function, and make such arrangement as it thinks proper for managing the affairs of the college and its property till further proceeding are completed :

Provided that no such order shall remain in force for more than six months from the date of actual taking over the Management in pursuance of such order :

Provided further that in computation of the said period of six months, the time during which the operation of the order was suspended by any order of the High Court passed in exercise of jurisdiction under Article 226 of the Constitution or any period during which the Management failed to show cause in pursuance of the notice under Section 57, shall be excluded.

(3) Nothing in sub-section (1), shall be construed to confer on the Authorised Controller the power to transfer any immovable property belonging to college (except by way of letting from month to month in the ordinary course of Management or to create any charge thereon) except as a condition of receipt of any grant-in-aid of the college from the State Government or the Government of India.

(4) Any order made under this section shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or in any instrument relating to the Management and control of the college or its property :

Provided that the property of the college and any income therefrom shall continue to be applied for the purposes of the college as provided in any such instrument.

(5) The Director of Education (Higher Education) may give to the Authorised Controller such directions as he may deem necessary for the proper management of the college or its property, and the Authorised Controller shall carry out those direction."

The inquiry report on which a reliance has been placed by the State Government in its notice dated 11.12.2018 has been annexed as Annexure No. 13 to Writ Petition (M/S) No.1027 of 2019. The two inquiry officers were appointed in the said inquiry, namely, Dr. N.P. Maheshwari, Principal and Professor of the Government Post Graduate College, Rishikesh, Dehradun and Dr. G.S. Rajwar, Principal and Professor of the Government College, Narendra Nagar, Tehri Garhwal.

The first inquiry was regarding the admission of a student called Mansi Bhandari in the College. In the first inquiry, the inquiry committee came to the conclusion that there is no anomaly in granting admission to Ms. Mansi Bhandari. Regarding the appointment being made in clerical cadre, the inquiry committee came to the conclusion that though there was no anomaly in the main select list, but there was an anomaly as the candidate, namely, Ravindra Kumar Godiyal who had got the highest marks was put at serial no. 3, whereas he should have been at serial no. 1. Apart from this, there were anomalies in the waiting list of the candidates.

In reply to this, the Management gave its reply stating that firstly for Class III posts the selection committee is not constituted by the College, but by the State Government which consisted of the District Education Officer, Dehradun, District Employment Officer and there was only one representative, who is the Principal of the College. Moreover, there was no occasion for making any appointment from the waiting list as all the candidates who were selected had joined their posts. When this was explained to the State Government, Government seems to be satisfied with the reply and no action was taken on this. However, another notice was issued on 11.02.2019 stating as to why proceedings under Sections 57 and 58 of the U.P. State Universities Act, 1973 be not initiated against the Management as they have continued to make selection/appointment in the College, although vide order dated 04.12.2017 the Management was asked to stop the selection process of teaching and non-teaching staff. This is the order which the petitioner has challenged before this Court.

The order dated 11.02.2019 seems to be arbitrary and without any application of mind for the reason that the initial order dated 04.12.2017 was modified by none other but by the State Government by the subsequent order dated 04.07.2018, whereby permission was given for selection/appointment on the teaching posts. Although it is true that subsequently vide order dated 10.09.2018, the order dated 04.07.2018 was stayed by the State Government, however, by that time the selections had already been made and the candidates have been recommended for appointment to the Vice-Chancellor.

In the counter affidavit, however, the State Government has relied upon an inquiry report which says that the reservation roster is not being followed for the posts of teaching staff of Economics, English, History and Mathematics,.

The fact, however, remains that for these posts no selection has yet been made by the Selection Committee. Therefore, the reliance placed by the State is totally misconceived. The selections have only been completed and recommendations were given for the post of B.Ed. and law faculty, for which an approval has already been granted by the Vice-Chancellor on 02.11.2018.

In view of these facts, the entire exercise under Sections 57 and 58 of the U.P. State Universities Act, 1973 seems to be arbitrary. Sections 57 and 58 of the U.P. State Universities Act, 1973 give powers to the State Government to issue a notice asking explanation from the Management of the College which is an affiliated college to the University on five contingencies. These are as follows:-

"(i) that its management has persistently committed willful default in paying the salary of the teachers or other employees of the college by the twentieth day of the month next following the month in respect of which or any part of which it is payable; or

(ii) that its management has failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring the maintenance of academic standards in relation to the college or has appointed or retained in service any teacher in contravention of the Statute or Ordinances or has failed to comply with the orders of the Director of Education (Higher Education) made on the basis of the recommendation of the Uttar Pradesh Higher Education Service Commission under the Uttar Pradesh Higher Education Services Commission Act, 1980, or

(iii) that any dispute with respect to the right claimed by different person to be lawful office-bearers of its Management has affected the smooth and orderly administration of the college; and

(iv) that its management has persistently failed to provide the college with such adequate and proper accommodation, library, furniture, stationery, laboratory, equipment and other facilities, as are necessary for efficient administration of the college; or

(v) that its Management has substantially diverted, misapplied or misappropriated the property of the college to the detriment of the college; it may call upon the Management to show cause why an order under Section 58 should not be made :

Provided that where it is in dispute as to who are the office-bearers of the Management, such notice shall be issued to all persons claiming to be so."

There is no report that any of the above anomalies have been committed by the petitioner so far. Therefore, under the present facts and circumstances of the case, the entire exercise is without any foundation. This however, does not mean that the petitioner can continue with the selection/appointment of teaching and non-teaching staff in the college without following the roster. In case the roster has not been followed, the Management after taking due approval from the State Government for the remaining posts shall re-advertise the posts and in case as per the roster the posts have to be reserved for a particular category, let the same be done in accordance with law and the posts shall only be filled after applying the roster.

The case of the petitioner i.e. D.B.S. (P.G.) College in Writ Petition (M/S) No. 1028 of 2019 is even more curious. Admittedly, there is no anomaly for appointment/selection and admission in this college. However, the impugned orders dated 12.10.2018 and 11.02.2019 which have been challenged in the writ petition are to the effect that since the two colleges are under the same Management, (which again is wrong, as the Management Committees are different, though they have a common society, namely, "Dayanand Shiksha Sansthan"), this college too must refrain from the selection process, etc.

In view of the above, the Writ Petitions (M/S) Nos. 1027 of 2019 and 1028 of 2019 are allowed. The impugned orders/letters dated 10.09.2018, 12.10.2018 and 11.02.2019 are hereby quashed with the direction that the petitioner shall continue with the selection process only after an approval is granted by the State Government that the petitioner is following the correct roster for the selection/appointment of the teaching and non-teaching staff. Let an application in this regard be made by the college within a period of three weeks from the date of production of a certified copy of this order.

As far as the prayer of the petitioner in Writ Petition (M/S) No. 2595 of 2019 for release of salary and arrears of the appointed law and B.Ed. faculty is concerned, this Court is of the view that they are liable to get their salary from 01.11.2019. However, as far as salary for the prior period is concerned, they will have a claim on, only if they have taught in the college for that period. In any case, teachers are not before this Court. Regarding the prior period of salary, they shall raise their claim before the State Government and the State Government after due verification of the fact whether the teachers have been teaching in the college, shall release the salary of such teachers.

With the above direction, the Writ Petition (M/S) No. 2595 of 2019 is also disposed of.