Dr. Vijendra Kumar Tomar 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 the Committee of Management of Krishak Degree College, Mawana, District Meerut 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 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''), initially issued the placement order dated 8th March, 2002 but subsequently issued the order dated 24th March, 2003 for placement of the Petitioner as Principal in the Krishak Degree College, Mawana, District Meerut u/s 13(3) of the Act. The management of the College consequently issued appointment order in favor of the Petitioner. It is this placement order dated 24th March, 2003 that 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 and gave the following preferences for being appointed as Principal in a Degree College:

i) KL DAV College Roorkee

ii) MM Degree College, Khekhra, District Baghpat

iii) Chinmaya Degree College, Ranipur, Haridwar

iv) Shree Saligram Sharma Smarak Degree College, Rasna District Meerut

v) Bappa Shree Narain Vocational Degree College, Lucknow

The Petitioner was placed at Serial No. 2 in the list dated 18th April, 2001 sent by the Commission to the Director containing names of Principals of Degree Colleges. The Director issued the placement order dated 8th March, 2002 for appointment of the Petitioner on the post of Principal in Shree Saligram Sharma Smarak Degree College, Rasna District Meerut which was the fourth preference given by the Petitioner. It is stated by the Petitioner that in terms of the placement order dated 8th March, 2002 he submitted his joining report in Shree Saligram Sharma Smarak Degree College, Rasna District Meerut on 8th March, 2002 but the College authorities did not permit him to join. The Petitioner, therefore, submitted a representation dated 10th February, 2003 to the Director for changing the placement order from Shree Saligram Sharma Smarak Degree College, Rasna District Meerut to the Krishak Degree College, Mawana, Meerut as he was working in the Krishak Degree College, Mawana on the post of Lecturer and the post of Principal for the said College was also advertised.

However, as no order was passed by the Director, the Petitioner filed Writ Petition No. 10318 of 2003 which was disposed of on 5th March, 2003 with the following observations:

Heard.

The facts of this case are covered by the Division Bench judgment in Km. Alka Rani v. Director of Education (Higher) in Writ Petition No. 39758 of 2001 decided on 27.2.2003.

This petition is disposed off on the same terms and directions as in the aforesaid judgment.

The Director of Education (Higher) is directed to make placement in accordance with the aforesaid judgment.

The Director thereafter passed the order dated 24th March, 2003 for placement of the Petitioner as Principal in Krishak Degree College, Mawana and subsequently the appointment letter dated 27th March, 2003 was issued by the said College and the Petitioner joined on 27th March, 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 24th March, 2003 of the Petitioner and also issued directions to the Committee of Management of Krishak Degree College, Mawana, District Meerut 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.

In the counter affidavit filed by the Committee of Management of the Krishak Degree College Mawana, it is stated that the College is a Post Graduate College and what was also advertised in Advertisement No. 25 of 1998 was the post of Principal for this Post Graduate College. The Petitioner had submitted application for appointment as a Principal in a Degree College and not in a Post Graduate College and, thereafter, the Director could not have issued the placement order of the Petitioner for this Post Graduate College. It is also stated that the Petitioner does not possess the requisite essential qualification for the post of Principal in a Post Graduate College.

In the counter affidavit filed by the State, it has been pointed out that out of the five preferences given by the Petitioner, two Colleges namely KL. D.A.V. College Roorkee and Chinmaya Degree College, Haridwar became Colleges of State of Uttaranchal and, therefore, were not considered by the Director while issuing the placement orders. M.M. Degree College, Khekhra Baghpat was offered to Bhagwat Singh Yadav who was at serial No. 1 in the merit list and the Petitioner, who was at serial No. 2, was, therefore, offered his fourth choice namely Shree Saligram Sharma Smarak Degree College, Rasna, Meerut. The Petitioner, however, was only interested in joining the Krishak Degree College, Mawana and, therefore, when the Director declined to issue the placement order of the Petitioner for this College, he filed Writ Petition No. 10318 of 2003 which was disposed of on 5th March, 2003 with the observation that the Director shall give placement to the Petitioner in accordance with the judgment rendered in Alka Rani Gupta (Km.) v. Director of Education (Higher) and Ors. reported in 2003 (2) ESC 942 but the Director, while issuing placement order in favor of the Petitioner for Krishak Degree College, Mawana, misconstrued the decision rendered by the Court in Alka Rani Gupta (supra) as the College was a Post Graduate College and the Petitioner had applied for being appointed in a Degree College.

Learned Counsel for the Petitioner submitted that the order dated 6th August, 2005 passed by the Director deserves to be set aside. It his submission that such order could not have been passed without giving opportunity of hearing to the Petitioner; that the appointment had been made against the vacancy which was advertised by the Commission and, therefore, the decision of the Supreme Court in Kamlesh Kumar Sharma (supra) will not apply; that the appointment of the Petitioner was made in compliance of the directions issued by the Court in Writ Petition No. 10318 of 2003; that the State Government does not have the power to terminate the services of the Petitioner once the appointment order was issued by the Committee of Management since the service conditions of the Petitioner are governed by the provisions of U.P. State Universities Act, 1973 (hereinafter referred to as the ''Universities Act'') and the Statutes framed there under and the services of the Petitioner had been terminated without following the procedure prescribed u/s 35 of the Universities Act; that the order dated 6th August, 2005 deserves to be set aside on sympathetic grounds also for the reason that the Petitioner has worked as Principal for a substantial number of years and that in any case, the order issued by the Director on 24th March, 2003 for placement of the Petitioner as Principal in Krishak Degree College, Mawana, Meerut does not suffer from any infirmity.

Learned Additional Advocate General of the State has, however, submitted that the Petitioner is not entitled to any relief in view of the facts stated in the counter affidavits. It is his submission that Krishak Degree College, Mawana was mentioned in the list of Post Graduate Colleges that had been notified in Advertisement No. 25 of 1998 and as the Petitioner had only applied for a Degree College and not a Post Graduate College and the Petitioner was also not eligible for appointment in a Post Graduate College, the placement order for the said College issued by the Director and the subsequent appointment are void; that appointments can be made only against the post advertised; that if the placement order itself is void, it can be cancelled and there is no necessity of taking recourse to the provisions of Section 35 of the Universities Act; that even otherwise opportunity was not required to be given to the Petitioner since the enquiry was not with regard to the misconduct of the Petitioner but with regard to his placement in the College by the Director; that in any case no opportunity is required to be given if a different conclusion cannot follow and that no sympathy should be shown to the Petitioner as equity will not come to his aid when his placement was found to be against the provisions of the Act.

In the present case, it is seen that the Petitioner had applied for the post of Principal in a Degree College. The Colleges mentioned by the Petitioner for the first and third choice became Colleges of Uttaranchal and the second preference given by the Petitioner was offered to a candidate who was at serial No. 1 in the list. The Director, therefore, issued the order dated 8th March, 2002 for placement of the Petitioner in Shree Saligram Sharma Smarak Degree College, Rasna, Meerut which was the fourth preference given by the Petitioner.

It is not in dispute that Krishak Degree College, Mawana was mentioned in the list of Post Graduate Colleges in the Advertisement No. 25 of 1998. The Petitioner had applied for the post of Principal in a Degree College and not in a Post Graduate College. The Petitioner, however, contends that the College should be treated as a Degree College and not as a Post Graduate College as only temporary recognition had been given for running the Post Graduate Classes. This contention of the Petitioner cannot be accepted. The Commission treated the said College to be a Post Graduate College and issued the advertisement in which the College was included in the list of Post Graduate Colleges. The Petitioner, therefore, cannot now be permitted to contend that the College should be treated as a Degree College. The stand of the Respondents in the counter affidavit is also that the Petitioner was not eligible for the post of Principal in the Post Graduate College. In reply all that has been stated by the Petitioner is that the College is a Degree College and not a Post Graduate College and, therefore, the Petitioner fulfills the essential qualifications. It is, therefore, clear that the Petitioner does not also possess the requisite essential qualification for the post Principal in the Post Graduate College.

It is also seen that pursuant to the directions issued by the Court in Writ Petition No. 10318 of 2003 filed by the Petitioner, the Director, without even examining whether the appointment of the Petitioner was covered by the decision of the Court in Alka Rani Gupta (supra), issued the placement order of the Petitioner for Krishak Degree College, Mawana, Meerut in a mechanical manner. The Director should have examined that the said College was a Post Graduate College and the Petitioner had not submitted the application for appointment as a Principal in the Post Graduate College and nor did he possess the requisite essential qualification for the post of Principal in the Post Graduate College. Even otherwise, the decision in Alka Rani Gupta (supra) will not help the Petitioner because paragraphs 10 and 11 of the said decision, on the basis of which the Director purportedly issued the placement order, have not been approved by the Full Bench in the subsequent decision rendered in Dr. Vinay Kumar v. Director of Education (Higher) Allahabad and Ors. (2005) 4 ESC 2953.

The appointment of the Petitioner was in clear violation of the provisions of Section 13 of the Act and, therefore, void in view of the provisions of Section 12(1) of the Act which provides that any appointment made in contravention of the Act is void.

We have examined this issue and the other issues raised by learned Counsel for the Petitioner in detail in the judgment and order of date rendered in Dr. Satya Pandey (supra) and, therefore, do not propose to repeat them.

Thus, for the reasons mentioned above and for the reasons mentioned in the judgment delivered by us 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.