Dr. Man Pal Singh vs State of U.P. and Others

The Petitioner has sought the quashing of the order dated 6th August, 2005 passed by the Director of Education (Higher Education), Allahabad (hereinafter referred to as the ''Director'') by which, pursuant to the order dated 29th July, 2005 issued by the State Government, the Manager of M.M.H. College, Ghaziabad has been directed to cancel the appointment of the Petitioner as Principal of the said College consequent to the cancellation of the placement of the Petitioner in the said College by the Director.

The Director, after having received the list of selected candidates from the Higher Services Commission (hereinafter referred to as the ''Commission'') established u/s 3 of the Uttar Pradesh Higher Education Services Commission Act, 1980 (hereinafter referred to as the ''Act''), issued the order dated 9th April, 2003 for placement of the Petitioner as Principal in the M.M.H. College, Ghaziabad u/s 13(3) of the Act. The management of the College consequently issued appointment order in favour of the Petitioner. This placement order was cancelled by the Director.

We have considered the issues raised in this petition in the judgment delivered by us today in Writ Petition No. 60844 of 2005 (Dr. Satya Pandey v. Director of Education (Higher), U.P. Allahabad and Ors.). We, therefore, propose to state only the essential facts relating to the issuance of the placement order of the Petitioner by the Director as other facts have been stated in detail in the aforesaid judgment.

Advertisement No. 25 of 1998 was issued by the Commission on 13th August, 1998 for filling up posts of Principals for male and female Post Graduate Colleges and Degree Colleges. The Petitioner applied pursuant to the aforesaid Advertisement for appointment as Principal in a Post Graduate College and according to him gave the following preferences:

i) D.A.V. College, Muzaffarnagar

ii) S.D. College, Muzaffarnagar

iii) M.S. College, Saharanpur

iv) Verdhman College, Bijnor

v) B.S.A. College, Mathura

The Petitioner was placed at Serial No. 3 in the waiting list dated 16th April, 2001 of General Category candidates sent by the Commission to the Director containing names of Principals of Post Graduate Colleges.

The Director issued the placement order dated 9th April, 2003 for appointment of the Petitioner on the post of Principal in M.M.H. College, Ghaziabad. The Committee of Management of the College issued the appointment letter dated 11th April, 2003 to the Petitioner who joined the College on 11th April, 2003.

In the meantime, as complaints about large scale irregularities in the placement/appointments of Principals by the Director were received, the State Government conducted an enquiry through the District Magistrate, Allahabad. It was found in the enquiry that many persons were appointed as Principals of the Degree Colleges/Post Graduate Colleges against the provisions of the Act as well as against the decision of the Supreme Court in Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and others, The State Government, therefore, by the order dated 29th July, 2005 issued directions to the Director to cancel such placement orders. Accordingly, the Director by the order dated 6th August, 2005 cancelled the placement order dated 9th April, 2003 of the Petitioner and also issued directions to the Committee of Management of M.M.H. College, Ghaziabad to cancel the appointment of the Petitioner. It is this order that has been impugned in the present petition.

On 6th September, 2005, while entertaining the writ petition, the Court ordered that till further orders of the Court, the impugned order dated 6th August, 2005 shall be kept in abeyance.

The Petitioner has annexed as Annexure-2 to the writ petition the names of Post Graduate Colleges and Degree Colleges covered by Advertisement No. 25 of 1998. M.M.H. College, Ghaziabad is not included in the list of Post Graduate Colleges or Degree Colleges. All that has been stated in the writ petition is that a leave vacancy occurred on the post of Principal in M.M.H. College, Ghaziabad on 26th February, 1999 and permanent vacancy occurred on 30th June, 1999. Even if, this position is accepted as correct, then too the appointment of the Petitioner in the College could not have been made as the post of Principal was not actually advertised and candidates did not get an opportunity to apply for this post.

It is, therefore, clear that the post of Principal for the said College was not advertised in Advertisement No. 25 of 1998 issued on 13th August, 1998. It is, however, stated in the writ petition that as the Petitioner was working as Reader in M.M.H. College, Ghaziabad, the placement order dated 9th April, 2003 was issued by the Director for his appointment as Principal in M.M.H. College, Ghaziabad in view of the decision of the Division Bench of the Court in Alka Rani Gupta (Km.) v. Director of Education (Higher) and Ors. 2003 (2) ESC 942 in which it has been observed that preference should be given to the candidate for the Institution where the candidate is already working.

In the case of Alka Rani Gupa (supra), the Division Bench of this Court observed:

Thus the legal position which emerges from the above provisions in the Act and Regulations is as follows:

(i) Where a large number of candidates are selected for various institutions by the Commission, the Commission has to prepare a select list in accordance with the merit determined by the Commission.

(ii) The candidate who is on the top of the select list will be given his first preference.

(iii) Then the candidate who is at serial position No. 2 in the select list will be considered by the Director. If his first choice has already been filled by the candidate at the top of the select list then this candidate will be given his second choice, otherwise he will get his first choice.

(iv) Then we come to the candidate who is on the third position in the select list. If the choice of his first preference has not been already allotted to a candidate higher than him in the select list he will be given that institution, otherwise he will be given his second choice, unless that too has been allotted to the candidate above him, in which case he will be allotted the institution of his third choice. In this way the Director will do the placement.

However, the Division Bench went on to carve out exceptions from the said Rule in the very next two paragraphs, namely, paragraphs 10 and 11. These two paragraphs are also set out below:

In our opinion this is the only logical and reasonable method for making placement of a candidate selected by the Commission, and if this is not followed there is bound to be chaos, corruption, arbitrariness, casteism etc. There shall be only one exception to the above method and procedure for making placement, namely that if there is an ad hoc Principal already working in the College, or Lecturer working in the said College who has been selected by the Commission for the post of Principal, then the ad hoc Principal/Lecturer should be given placement in the same College as Principal provided that the management has no objection.

We are laying down this exception in view of the division bench decision of this Court in Dr. Prakash Chandra Srivastava Vs. Director of Higher Education and Another, of the said decision it has been observed that problems and disputes arise between the Principal and the management when the management is forced to issue an appointment order in favour of a person against its wishes. Thrusting an unwilling Principal on an unwilling management is not in the interest of the institution. This is the only exception to the method and procedure of placement, which we have laid down in this judgment.

The aforesaid decision in Alka Rani Gupta (supra) does not help the Petitioner. This issue has been examined by us in Dr. Satya Pandey (supra) but suffice to state that the discretion to be exercised by the Director, as pointed out in Alka Rani Gupta (supra), will be available only when the vacancy for the College has been advertised. In the present case, as seen above, the vacancy for M.M.H. College, Ghaziabad was not advertised. The Director, therefore, could not have issued any order for placement of the Petitioner as it would be contrary to the provisions of Section 13 of the Act.

It is, therefore, not possible to accept the contention of the learned Counsel for the Petitioner that since the Petitioner was working as Reader in M.M.H. College, Ghaziabad, the Director was justified in issuing the placement order. Even otherwise, the Full Bench in Dr. Vinay Kumar v. Director of Education (Higher) Allahabad and Ors. (2005) 4 ESC 2953 has not approved the observations of the Division Bench in Alka Rani Gupta (supra) made in paragraphs 10 and 11. The Full Bench observed:

In our opinion, the Director at the time of making intimation is to take into account only two things, in regard to every candidate, namely, the candidate''s merit position as determined u/s 13(1), and the preferential list of colleges or institutions given by the candidate himself.

How the Director is to allot the candidates to the different colleges on the basis of these two items and these two items only are, with respect, correctly laid down by the Division Bench in paragraph 9 in Alka Rani''s case (supra) and we agree with that paragraph in toto.

In our opinion the Director does not use a discretionary power in making intimations under Sub-section (3) of Section 13. Instead of the Director, any other person with an equally logical mind as the Director will also be able to perform the same act but the Director has been given the authority, so as to carry conviction and to make it safe for the colleges to follow the recommendations and intimations coming under his signature.

The working of Sub-section (3) of Section 13 shows that Director''s action is compulsorily prescribed by the said Sub-section. Although the said Sub-section does not refer to the merit list at all yet as laid down in paragraph 9 of Dr. Alka Rani''s case (supra) the merit list must be considered by the Director and in this regard the Director cannot disregard Sub-section (1) of Section 13 and the exercise performed under that Sub-section. The exercise by the Director is performed thereafter and must be performed thereon.

In this view of the matter we abide by what was said in paragraphs 9 and 10 (first sentence only) of Dr. Alka Rani''s case (supra) and respectfully disapprove what was said in that case in paragraphs 10 (rest) and 11. We make it clear that we approve of the first sentence in paragraph 10 of Dr. Alka Rani''s case (supra) but disapprove only of the latter part of that paragraph where the exception is said to be spelt out.

(emphasis supplied)

Thus, for the reasons stated above and for the reasons mentioned by us in the judgment delivered today in Dr. Satya Pandey (supra), the Petitioner is not entitled to any relief and the writ petition deserves to be dismissed.

The writ petition is, accordingly, dismissed.