Allahabad High Court
Dr.A.P.J.Abdul Kalam Tech. Unvi. Thru. ... vs State Of U.P. Thru. Prin. Secy. ... on 12 April, 2017
Bench: Narayan Shukla, Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved 1. Case :- SERVICE BENCH No. - 30065 of 2016 Petitioner :- Dr.A.P.J.Abdul Kalam Tech. Unvi. Thru. Vice Chancellor & Anr Respondent :- State Of U.P. Thru. Prin. Secy. Technical Edu. Deptt. & Anr. Counsel for Petitioner :- Manish Kumar Counsel for Respondent :- C.S.C,Lalit Shukla 2. Case :- SERVICE BENCH No. - 27515 of 2016 Petitioner :- Dr.A.P.J.Abdul Kalam Technical University Lko.Thru.V.C.& Anr Respondent :- State Of U.P Thru.Prin.Secy.Technical Education Lko.& Anr. Counsel for Petitioner :- Manish Kumar Counsel for Respondent :- C.S.C Hon'ble Shri Narayan Shukla,J.
Hon'ble Sheo Kumar Singh-I,J.
(Delivered by Sheo Kumar Singh-I, J.)
1. Heard Mr. Manish Kumar, learned counsel for the petitioners, learned Chief Standing Counsel for the State and Mr. Lalit Shukla, learned counsel for respondent no.2.
2. By means of Writ Petition No.30065 (SB)of 2016, the petitioners have assailed the order dated 23.09.2016 passed by opposite party no.1, Principal Secretary, Uttar Pradesh Technical Education, whereby in place of Vice Chancellor of Dr. A.P.J. Abdul Kalam Technical University, Sultanpur, Prof. Irshad Hussain, Retired Professor, Civil Engineering Department, was appointed as Chairman of the Selection Committee.
3. As per version narrated in the writ petition, the Kamla Nehru Institute of Technology (for short ''KNIT'), Sultanpur, is an institution which is financed by the State Government and it is having its own bye-laws. Bye-law no.4 deals with the selection committee for filling various posts other than the Director including the post of Professor, Associate Professor, Assistant Professor etc. and Clause 4(A) (i) provides that the Vice Chancellor of the University to which the institute is affiliated or an eminent academician appointed by the Government shall be the Chairman. Since KNIT, Sultanpur, is affiliated to petitioner no.1 i.e. Dr. A.P.J. Abdul Kalam Technical University, Lucknow, and as such, by virtue of bye-laws of the institute itself, it is the Vice Chancellor of the University to which the institute is affiliated, shall be the Chairman of the selection committee for the post of Professor, Associate Professor, Assistant Professor etc.
4. By the impugned order dated 23.09.2016, the State Government has nominated one retired professor as the Chairman of the selection committee in contravention of the rules and bye-laws of the University and the Society. Thus, the present writ petition.
5. In the counter affidavit, it has been submitted that Dr. A.P.J. Abdul Kalam Technical University, Lucknow, is governed by the provisions of the Uttar Pradesh Technical Universities Act, 2000 and in accordance with the provisions of the Act and bye-laws the Government has nominated the expert in the field as the Chairman of the selection committee and the order passed by the respondents is within their executive powers.
6. Writ Petition No.27515 (SB) of 2016 has been filed on similar grounds against the order dated 07.11.2016 whereby Professor R.C. Yadav, Ex. Director, Bundelkhand Institute of Engineering and Technology, (for short ''BIET'), Jhansi, has been nominated as Chairman of the selection committee for filling up of various posts other than the Director including the post of Professor, Associate Professor, Assistant Professor etc. in BIET. It has been submitted that BIET, Jhansi, is also an institute financed by the State Government and affiliated to Dr. A.P.J. Abdul Kalam Technical University, Lucknow.
7. In the counter affidavit submitted by the respondents in Writ Petition No.27515 (SB) of 2016, the facts have been repeated and it has been submitted that the nomination of the Chairman for the selection committee is within the executive domain of the respondents and there is no malafide in appointing/nominating the Chairman of the selection committee.
8. Since common question of law and facts are involved in these two writ petitions, as such, both the writ petitions are decided by a common judgment.
9. Before discussing the submissions of the parties, it would be necessary to quote the provisions relating to the matter in dispute. Dr. A.P.J. Abdul Kalam Technical University, Lucknow is governed by the provisions of Uttar Pradesh Technical Universities Act, 2000. Section 2 of the Act deals with the definition clause. Section 2(a) of the Act defines ''college' as under:-
"Section 2(a) - "College" means a college or an institution affiliated to the University and shall include an autonomous college, constituent college and associated college referred to under sections 26-A, 26-B and 26-C respectively."
10. Section 7 of the Act deals with the officers of the University, which is reproduced as under:-
"7. The following shall be the officers of the University-
(a) The Chancellor,
(b) The Vice Chancellor,
(c) The Pro-Vice Chancellor,
(d) The Finance Officer,
(e) The Registrar,
(f) The Controller of Examinations
(g) Such other officers of the University as may be declared by the Regulations to be the officers of the University."
11. Section 9 of the Act deals with the mode of appointment of the Vice Chancellor and the emoluments which are paid to the Vice Chancellor. Relevant portion of Section 9(4) of the Act is quoted below:-
"The Vice Chancellor-
Section 9(4) - The emoluments and other conditions of service of the Vice Chancellor shall be such as may be determined by the State Government from time to time.
Provided that the emoluments and other conditions of service of a Vice Chancellor shall not be varied to his disadvantage during the term of his office."
12. Section 36-A deals with the power of the State Government to issue direction to the University on policy matters, which is reproduced as under:-
"36-A - The State Government may issue such directions from time to time to the University on policy matters, not in consistent with the provisions of this Act, as it may deem necessary. Such directions shall be complied with by the University."
13. KNIT, Sultanpur, is an autonomous college affiliated to the University and has been granted autonomy by the University Grants Commission. Section 26(A) (1) provides that an autonomous college can vary for the students receiving instructions therein the course of study prescribed by the University and hold examination in the course so varied. A provision with regard to autonomous college has also been made into UPTU Regulations 2010 as amended from time to time. Relevant regulation 6.29 (h) is quoted as under:-
"Regulation 6.29 (h) - Subject to the provision of Section 26-A, an autonomous college shall be entitled-
(i) To frame the courses in the subjects covered by its privileges;
(ii) To appoint persons qualified to be appointed as internal/external examiners in such subjects;
(iii) To hold examinations and to make such changes in the method of examination and teaching as in its opinion are conducive to the maintenance of the standard of education."
14. Regulation 10.15 deals with the constitution of the selection committee, which reads as under:-
"10.15 - The Selection Committee for the associated Colleges, Government Institutions or Government Societies Institutions shall be the same as University Constituent Institutions unless otherwise specified in their Society rules."
15. KNIT is a society registered under the provisions of Societies Registration Act. It has its own bye-laws and bye-law 4(A) (i) and 4(B) (i) deals with the Selection Committee for the post of Professor, Associate Professor, Registrar, System Manager and Workshop Superintendent. Bye-law 4(A) is reproduced as under:-
"4. Selection Committee:
Selection Committee for filling the various posts, other than Director on which appointments are made on contract basis in the Institute, including the post of Professor, Associate Professor and Assistant Professor, shall be constituted in the manner laid down below namely:- (A) Selection Committee for the post of Professor, Associate Professor, Registrar, System Manager & Workshop Superintendent -
i.
The Vice Chancellor of the University to which the Institute is affiliated or an Eminent Academician appointed by the Government.
Chairman ii.
The Director.
Vice Chairman iii.
An officer of the Technical Education Department to be nominated by the Chairman, Board of Governors for a period of three years.
Member iv.
Head of the Department concerned, provided that the Head of the Department shall not sit in the Selection Committee when he himself is a candidate for appointment or the post concerned is of the same or of a higher rank.
Member v & vii Three experts to be selected by the Director of the Institute from the panel of experts constituted under rule -5.
Member Provided that the Selection Committee shall not be deemed to be duly constituted unless all the experts have been given due notice of the meeting and at least two of them are present.
Provided also that the Selection Committee shall not be deemed to be unconstitutional if more than the required number or experts attend a particular Selection Committee.
viii A person to be nominated by the All India Council for Technical Education for a period of three years.
Member ix & x Two representatives one each of Schedule Caste/Schedule Tribes and other Backward classes to be nominated by the Chairman/Vice Chairman of the Selection Committee out of Professors/Class I Officers.
Member
16. Similarly, in Writ Petition No.27515 (SB) of 2016, it has been submitted that BIET is an autonomous college affiliated to the University where Rule 26(A) (1) and Regulation 6.29 and other provisions and regulations are the same. The bye-laws of the BIET and KNIT deal with the appointment of the Chairman of the Selection Committee which can be either Vice Chancellor of the University to which the institute is affiliated or an eminent academician appointed by the Government.
17. This Court while dealing with the matter in Writ Petition No.27515 (SB) of 2016, after hearing the parties, passed an order on 21.11.2016, which reads as under:-
"Heard learned counsel for the petitioners and learned Chief Standing Counsel.
Through this petition, the petitioners have challenged the order dated 7.11.2016 by means of which Prof. R.C. Yadav, Ex-Director of Bundelkhand Institute of Engineering and Technology, Jhansi has been nominated as the Chairman of the Selection Committee.
Submission of learned counsel for the petitioner is that Ex-Director Prof. R.C. Yadav has been appointed as Chairman of the Selection Committee. The selections are going to take place and submission is that if the officiating Director joins as Vice Chairman and Prof. R.C. Yadav is appointed as the Chairman, then there will be hardly any possibility of fair selection. Further submission is that power under Bye-Law 4 (A) (i) of the Bye Laws has to be exercised in the interest of justice rather than to jeopardize the justice. Bye-law 4 (A) (i) of the Bye-Laws for Bundelkhand Institute of Engineering & Technology, Jhansi reads as under:-
"4. Selection Committee:
Selection Committee for filling the various posts, other than Director on which appointments are made on contract basis in the Institute, including the post of Professor, Associate Professor and Assistant Professor, shall be constituted in the manner laid down below namely: (A) Selection Committee for the post of Professor, Associate Professor, Registrar, System Manager & Workshop Superintendent.
(i) The Vice-Chancellor, of the University to which the Institute is affiliated or an eminent Academician appointed by the Government ........ Chairman."
Submission of learned counsel for the petitioner is that past practice was that Vice Chancellor had been nominated time and again in respect of all Engineering Institutes, namely, H.B.T.I., Kanpur, I.E.T., Lucknow, K.N.I.T., Sultanpur, M.M.M.I.C., Gorakhpur and B.I.E.T. Jhansi. Learned counsel has referred to the various orders passed by the State Government from time to time dated 3rd July 2006, 2nd February 2007, 29th June 2015 and 23rd September 2015. All these letters go to indicate that the Vice Chancellor was continued as Chairman of the Selection Committee and this was done only with a view that Selection Committee may not be influenced by the favouritism and nepotism and the selection may remain fair and impartial if the Vice Chancellor is made to sit as the Chairman.
It is to be noted that practice has been prevailing in all these selections and if local practice is adopted, then Vice Chancellor is to be allowed to continue as Chairman. Power conferred upon the State Government to appoint Academician simultaneously has to be considered in the light of the aforesaid fact. The power in the present case as argued by the learned Chief Standing Counsel has been exercised, which has been conferred upon the State Government, but we have to see if the power has been exercised in bad faith, then the same cannot be allowed by this Court in view of the law settled by the Apex Court in the cases of Express Newspapers Pvt. Ltd. and others vs. Union of India and others, (1986) 1 SCC 133, State of Punjab v. Bandeep Singh and others, (2016) 1 SCC 724 and Vinod Kumar v. State of Haryana and others, (2013) 16 SCC 293.
The question of malafide as argued by the learned Chief Standing Counsel is not evident from the pleadings, but we have already indicated hereinabove that if brother of officiating Director is to be selected, then the selection of Vikram Yadav, in all probability, will not be fair and impartial.
Learned Chief Standing Counsel has also submitted that it cannot be said that Prof. R.C. Yadav is not an Academician. The Vice Chancellor is to be given preference to head as Chairman unless there are grave charges against him or enquiry is going on against him.
Bye-Law 4 (A) (i) contemplates appointment of Vice Chancellor of the University as the Chairman and the Vice Chancellor is to be the Chairman of the Selection Committee in normal circumstances and the exception has been provided by way of eminent Academician appointed by the Government. Eminent Academician cannot supersede Vice Chancellor, who is to continue as Chairman of the Selection Committee in normal circumstances. There is difference between appointment and the provision contained in the bye-law in respect of Vice Chancellor to continue as the Chairman. The two things are to be distinguished and they do not overlap with each other. Power of appointment of the Government has to be exercised only when Vice Chancellor is not available and that has been the consistent practice of the Government and if the Vice Chancellor for any reason is not present, then the Government can proceed to appoint any eminent Academician, which has been done in the past by the Government, but as soon as the Vice Chancellor was appointed, the said order was withdrawn. The aforesaid order has been placed on record to indicate that the prerogative of the Government has to be exercised only in absence of the regular Vice Chancellor. Apart from it, if the appointment of the Chairman as an eminent Academician has been done by the Government, then it has to be seen as to whether the said action of the Government is with some oblique motive. The facts on record go to indicate that Prof. R.C. Yadav, Ex-Director of the Institute has been appointed as Chairman whereas Vice Chairman is Dr. Diwakar Yadav, Officiating Director and the brother of Dr. Diwakar Yadav, Sri Vikram Yadav is to be selected and it appears that this has been the reason to oust the Vice Chancellor from the zone of Selection Committee. The aforesaid action of the State Government is wholly malafide, arbitrary and smacks of malice.
Sanctity of the institution of the Vice Chancellor has to be maintained. The educational institutions are supposed to run under the control of the Vice Chancellor and that is why at various places Vice Chancellor has been nominated. Eminent Academician cannot be substituted for Vice Chancellor when the Vice Chancellor himself is present. The provision in the bye law for appointment of eminent Academician as Chairman has been made only with a view that studies of the students may not suffer and selection may proceed if for any reason the Vice Chancellor cannot be appointed or there is a long gap in appointment of the Vice Chancellor.
The question of Academician has to be considered in the light of the facts on record. We find that power exercised by the State Government in appointing Prof. R.C. Yadav has been exercised in bad faith, therefore, the said order is wholly illegal.
We accordingly stay operation of the order dated 7.11.2016 till the next date of listing.
Learned Standing Counsel may file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List after expiry of the aforesaid period."
18. Learned counsel for the petitioners has submitted that where there is a specific law on statutory provisions or rules or regulations dealing with the matter it is pious duty of the respondents to follow the bye-laws or the regulations.
19. It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.
20. In Sirsi Municipality Vs. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the Supreme Court observed that "the ratio is that the rules or the regulations are binding on the authorities."
21. Similarly, a Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., AIR 1975 SC 1331, has observed as under:-
"The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies..............the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute." (Emphasis added).
22. Similar view has been taken by the Supreme Court in Ambica Quarry Works etc. Vs. State of Gujarat & Ors., AIR 1987 SC 1073; and Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16. In both the cases, the Apex Court relied upon the judgment of the House of Lord in Julius Vs. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it was observed as under:-
"There may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."
23. In Commissioner of Police (supra), the Apex Court observed as under:-
"Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.........An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled."
24. In Dr. Meera Massey Vs. Dr. S.R. Mehrotra & Ors., AIR 1998 SC 1153, the Apex Court observed as under:-
"If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits............wrong channel adopted..........If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy."
25. The Supreme Court has taken the same view in Ram Chand & Ors. Vs. Union of India & Ors., (1994) 1 SCC 44, and held that "the exercise of power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness."
26. In Purushottam Vs. Chairman, Maharashtrta State Electricity Board & Anr., (1999) 6 SCC 49, the Hon'ble Supreme Court has held that appointment should be made strictly in accordance with the statutory provisions and a candidate who is entitled for appointment, should not be denied the same on any pretext whatsoever as usurption of the post by somebody else in any circumstances is not possible.
27. A Constitution Bench of the Hon'ble Supreme Court in Ajit Singh (II) Vs. State of Punjab & Ors., (1999) 7 SCC 209 held that any action being violative of Article 14 of the Constitution is arbitrary and if it is found to be de hors the statutory rules, the same cannot be enforced.
28. In Indra Sawhney II Vs. Union of India & Ors., AIR 2000 SC 498, the Hon'ble Supreme Court reiterated the law laid down by it time and again that Articles 14 and 16 (1) of the Constitution of India provide for rule of equality which is the basic feature of the Constitution and, therefore, there can be no deviation from the principles enshrined therein while making the appointments. Rule of equality is an antithesis of any kind of arbitrariness or private gain, whim or caprice of any individual. Even if the State has the discretionary power to issue executive instructions, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also "satisfy the mandatory requirement of the Statute." (Vide A.P. Aggarwal Vs. Government ( of N.C.T.) of Delhi & Ors., AIR 2000 SC 205. In Kumari Shrilekha Vidyarthi etc. etc. Vs. State of U.P. & Ors., AIR 1991 SC 537, the Apex Court held that every State act, in order to survive, must not be susceptible to vice of arbitrariness which is a crux of Article 14 of the Constitution and basis to the rule of law.
29. In Dr. M.A. Haque & Ors. Vs. Union of India & Ors., (1993) 2 SCC 213, the Supreme Court observed as under:-
"......... We cannot lose sight of the fact that the recruitment rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and by passing of the Public Service Commissions are permitted, it will open a back-door for illegal recruitment without limit. In fact this Court has, of late, been witnessing a constant violation of the recruitment rules and a scant respect for the constitutional provisions requiring recruitment to the services through the Public Service Commissions. It appears that since this Court has in some cases permitted regularisation of the irregularly recruited employees, some governments and authorities have been increasingly resorted to irregular recruitments. The result had been that the recruitment rules and the Public Service Commissions have been kept in cold storage and candidate dictated by various considerations are being recruited as a matter of course."
30. Deprecating the practice of making appointment de hors the Rules by the State or its instrumentalities in Dr. Arundhati A. Pargaonkar Vs. State of Maharashtra, AIR 1995 SC 962, the Court rejected the claim of the petitioner therein for regularisation on the ground of long continuous service observing as under:-
"Nor the claim of the appellant, that she having worked as Lecturer without break for 9 years' on the date the advertisement was issued, she should be deemed to have been regularised appears to be well founded. Eligibility and continuous working for howsoever long period should not be permitted to over-reach the law. Requirement of rules of selection.... cannot be substituted by humane considerations. Law must take its course."
31. The Hon'ble Supreme Court in State of U.P. & ors. Vs. U.P. State Law Officers Association & ors., AIR 1994 SC 1654 observed as under:-
"This being so those who come to be appointed by such arbitrary procedure can hardly complain if the termination of their appointment is equally arbitrary. Those who come by the back door have to go by the same door. ........... The fact that they are made by public bodies cannot vest them with additional sanctity. Every appointment made to a public office, howsoever made, is not necessarily vested with public sanctity. There is, therefore, no public interest involved in saving all appointments irrespective of their mode. From the inception some engagements and contracts may be the product of the operation of the spoiled system. There need be no legal anxiety to save them."
32. Therefore, it is evident from the aforesaid judgments of the Hon'ble Apex Court that whenever any action of the authority is in violation of the provisions of the statute or the action is constitutionally illegal, it cannot claim any sanctity in law, and there is no obligation on the part of the Court to sanctify such an illegal act. Wherever the statuary provision is ignored, the Court cannot become a silent spectator to such an illegal act, and it becomes the solemn duty of the Court to deal with the persons violating the law with heavy hands. (Vide R.N. Nanjundappa Vs. T. Thimmaiah & Anr., AIR 1972 SC 1767; B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors., AIR 1979 SC 1676; Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Orissa & Ors. Vs. Sukanti Mohapatra & Ors., AIR 1993 SC 1650; Jawahar Lal Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P. Vs. Bal Kishan Soni & Ors. (1997) 5 SCC 86; State of Himachal Pradesh Vs. Nodha Ram & Ors., AIR 1997 SC 1445; Ashwani Kumar & Ors. Vs. State of Bihar & Ors., AIR 1997 SC 1628; State of M.P.& Anr. Vs. Dharam Bir, (1998) 6 SCC 165; Municipal Corporation, Bilaspur & Anr. Vs. Veer Singh Rajput & Ors., (1998) 9 SCC 258; Nazira Begum Lashkar & Ors. Vs. State of Assam & Ors., AIR 2001 SC 102; Mrs. Dr. Chanchal Goyal Vs. State of Rajasthan, AIR 2003 SC 1713; M.D., U.P. Land Development Corporation & Anr. Vs. Amar Singh & Ors., AIR 2003 SC 2357; State of Haryana & Anr. Vs. Tilak Raj & Ors., AIR 2003 SC 2658; Haryana Tourism Corporation Ltd. Vs. Fakir Chand & Ors., AIR 2003 SC 4465; Sultan Sadik Vs. Sanjay Raj Subba & Ors., AIR 2004 SC 1377; and A. Umarani Vs. registrar, Co-operative Societies & Ors., 2004 AIR SCW 4462).
33. In Ramniklal N. Bhutta & anr. Vs. State of Maharashtra & ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-
"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. ...... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-a-vis the private interest while exercising the power under Art. 226.... indeed any of their discretionary powers."
34. In view of the above, we are of the considered opinion that every statutory provision requires strict adherence, for the reason that the statute creates rights in favour of the citizens, and if any order is passed de hors the same, it cannot be held to be a valid order and cannot be enforced. As the statutory provision creates legal rights and obligations for individuals, the statutory authorities are under a legal obligation to give strict adherence to the same and cannot pass an order in contravention thereof, treating the same to be merely decoration pieces in his office.
35. It has further been submitted by the petitioners that while passing the orders impugned in both the writ petitions the reasons for appointing the retired Professor in place of Vice Chancellor of the University have not been given by the respondents where there is a specific provision that in selection committee for the post of Professor, Associate Professor, Registrar and other Officers of the University or the affiliated college, the Vice Chancellor of the University to which the institute is affiliated, or an eminent academician appointed by the Government shall be the Chairman. No reasons have been disclosed in the impugned orders as to why the Vice Chancellor of the University to which the institute is affiliated has been taken away from the selection process.
36. It is settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. In Kumari Shrilekha Vidyarthi & Ors. Vs. State of U.P. & Ors., AIR 1991 SC 537, the Apex Court has observed as under:-
"Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that "be you ever so high, the laws are above you." This is what a man in power must remember always."
37. In Life Insurance Corporation of India Vs. Consumer Education and Research Centre, (1995) 2 SCC 480, the Apex Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. Same view has been reiterated by the Supreme Court in Mahesh Chandra Vs. Regional Manager, U.P. Financial Corporation & Ors., AIR 1993 SC 935; and Union of India Versus M.L. Capoor, AIR 1974 SC 87.
38. In State of West Bengal Vs. Atul Krishna Shaw & Anr., 1991 (Suppl.) 1 SCC 414, the Supreme Court observed that "giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."
39. In S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent mis-carriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
40. In Krishna Swami Vs. Union of India & Ors., AIR 1993 SC 1407, the Apex Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record. The Court further observed that "reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and there rational nexus and syntheses with the facts considered and the conclusion reached. Lest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21."
41. Similar view has been taken by the Supreme Court in Institute of Chartered Accountants of India Vs. L.K. Ratna & Ors., (1986) 4 SCC 537; Board of Trustees of the Port of Bombay Vs. Dilipkumar Raghavendranath Nadkarni & Ors., AIR 1983 SC 109. Similar view has been taken by this Court in Rameshwari Devi Vs. State of Rajasthan & Ors., AIR 1999 Raj. 47. In Vasant D. Bhavsar Vs. Bar Council of India & Ors., (1999) 1 SCC 45, the Apex Court held that an authority must pass a speaking and reasoned order indicating the material on which its conclusions are based. Similar view has been reiterated in M/s. Indian Charge Chrome Ltd. & Anr. Vs. Union of India & Ors, 2003 AIR SCW 440; Secretary, Ministry of Chemicals & Fertilizers, Government of India Vs. CIPLA Ltd. & Ors., (2003) 7 SCC 1; and Union of India & Anr. Vs. International Trading Co. & Anr., (2003) 5 SCC 437.
42. In the catena of judgments of the Hon'ble Supreme Court, it has categorically been held that an appointment dehors the rules cannot be enforced and in such a case even the principles of natural justice are not attracted nor their continuity in office for long would change the legal position.(Vide Smt. Ravindra Sharma & Anr.. Vs. State of Punjab & Ors., (1995) 1 SCC 138; Smt. Harpal Kaur Chahal Vs. Director, Punjab Instructions, Punjab & Anr. 1995 (Suppl.) 4 SCC 706; State of M. P. & Ors Vs. Shyama Pardhi & Ors, (1996) 7 SCC 118; State of Rajasthan Vs. Hitendra Kumar Bhatt, (1997) 6 SCC 574; Kishorilal Charmakar & Anr. Vs. District Education Officer & Anr., (1998) 9 SCC 395; Patna University Vs. Dr. (Mrs.) Amita Tiwari, AIR 1997 SC 3456; M.P. Electricity Board Vs. S.S. Modh & Ors,. AIR 1997 SC 3464; Dr. (Mrs.) Meera Massey Vs. Dr. S.R. Mehrotra & Ors, AIR 1998 SC 1153; Upen Chandra Gogoi Vs. State of Assam & Ors., 1998 (3) SCC 381; and R.K. Trivedi & Ors. Vs. Union of India & Ors., (1998) 9 SCC 58).
43. Learned counsel for the respondents have submitted that the State can pass an order in public interest.
44. The expression "public interest" or "probity in governance" cannot be put in a straitjacket. "Public interest" takes into its fold several factors. There cannot be any hard-and-fast rule to determine what is public interest. The circumstances in each case would determine whether government action was taken in public interest or was taken to uphold probity in governance.
45. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window- dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.
46. In Ashok Kumar Yadav and Ors. etc. etc. v. State of Haryana and Ors. etc. etc. - AIR1987SC454 , the Court held:
...The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a Welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner.
47. The founding fathers of the Constitution perhaps, in their wildest dreams, could not have visualized that the people who are expected to strictly adhere to the constitutional values and guide the destiny of the Nation, in times to come would malign and denigrate the system to such an extent that in place of Vice Chancellor to which the State has given the major responsibility, retired Professor, be nominated as Chairman of the selection committee. This unfortunate example teaches us a lesson that before appointing the constitutional authorities, there should be a thorough and meticulous inquiry and scrutiny regarding their antecedents. Integrity and merit have to be properly considered and evaluated in the appointments to such high positions. It is an urgent need of the hour that in such appointments absolute transparency is required to be maintained and demonstrated. The impact of the deeds and misdeeds of the constitutional authorities (who are highly placed) affect a very large number of people for a very long time, therefore, it is absolutely imperative that only people of high integrity, merit, rectitude and honesty are appointed to these constitutional positions.
48. It has been submitted by learned counsel for the petitioners that in the matter of appointment and promotion of teachers in the institutes or colleges affiliated to the University, the importance of the University has always been recognized by the State Government and it is only in unavoidable circumstances when the Vice Chancellor of the University was not available or unable to attend the meeting of the selection committee, only then any other person/eminent academician has been nominated as Chairman of the selection committee. The petitioners have given two examples where the Vice Chancellor of the University was not available or new Vice Chancellor is to be appointed, the State Government appointed other person to be the Chairman of the selection committee but in case of giving benefit of career advancement scheme to the respondent no.2, Ex. Director of Harcourt Butler Institute of Technology (HBIT), Kanpur, was nominated as Chairman of the selection committee for giving reasons that the regular Vice Chancellor of Dr. A.P.J. Abdul Kalam Technical University, Lucknow was not available. In case of HBIT Kanpur, which is also affiliated to the petitioner University, for the purposes of giving benefit of career advancement scheme to the teachers of the said institute, the State Government vide order dated 16.06.2015 nominated one Professor Dr. K.P. Singh, Ex. Director of HBIT, Kanpur, as Chairman of the selection committee but before the meeting of the selection committee, when the regular Vice Chancellor of the affiliating University has been appointed, the State Government nominated the Vice Chancellor of the affiliating University as Chairman of the Selection Committee and selection committee was presided over by the Vice Chancellor.
49. Learned counsel for the petitioners has submitted that the orders impugned are malafide and it can be so interpreted in light of the facts that the orders in question were passed against the statutory rules. The malafide of the respondents has been shown by the action of the Government by appointing a retired official as Chairman of the selection committee and again appointing the same person as a Chairman of Board of Governors of KNIT Sultanpur, who is the approving authority of the selection made in the statute. Now according to the version of the petitioners the Chairman of the selection committee and the Chairman of the Board of Governors is the same person whereas as per bye-laws the Chairman of the selection committee and the Chairman of the Board of Governors are not required to be the same person, that too in the presence of the Vice Chancellor of the University one person has been nominated as Chairman of the selection committee as well as Chairman of the Board of Governors. The discretionary power vested in the authority has to be exercised in a judicious manner and the discretionary power should not be permitted to be guided and canalized.
50. Learned counsel for the respondents has submitted that as per Regulation 10.15 of Regulation 2010 and bye-law 4(A) (i) of the KNIT Sultanpur the power has been exercised by the State Government in appointing the Chairman of the selection committee. It has further been submitted that this power is vested in accordance with the provisions of Section 36-A of the Uttar Pradesh Technical Universities Act and the orders issued by the State Government are to be complied with by the University. Regulation 10.15 provides that selection committee in the associated colleges, Government Societies/institutions shall be the same as the University constituent institutions. Further unless otherwise specified in the society rules, the selection committee is governed by Regulation 10.12 which provided that the Vice Chancellor will be the Chairman of the selection committee. Bye-law 4 provides that the Vice Chancellor has first preference to be the Chairman of the selection committee. So, in these situations, the orders passed by the respondents are not inconsonance with Regulation 2010. Regulation 10.12 provides as under:-
"10.12 - The Selection Committee for teachers of the University Institutes or its constituent college will be as follows:
(i) The Vice Chancellor will the be the Chairman of the Selection Committee."
51. Similarly, regulation 10.15 also provides that the selection committee for the associated colleges, Government institutions or Governments' Societies' Institutions shall be the same as University constituent institutions unless otherwise specified in the society rules. Bye-law 4(A ) of the society rules provides that Vice Chancellor will be the Chairman of the selection committee if there is a specific provision in bye-laws and regulation 10.12 read with regulation 10.15 then, in the presence of Vice Chancellor, it requires no further order for nominating any other person and there was no necessity to issue an order appointing/nominating any other person as Chairman of the selection committee because the authority of the Chairman of the selection committee is vested in the Vice Chancellor by virtue of operation of bye-laws and regulations. Second category of person to be nominated as Chairman of the selection committee is required only when the Vice Chancellor is not available or for some reasons he is unable to attend the meeting of the selection committee.
52. It has been submitted by learned counsel for the petitioners that the respondents had not assigned any reason or justification for replacement of the Vice Chancellor of the University by an eminent academician to be the Chairman of the selection committee. As already discussed above, in administrative matters reasons should be recorded and it is incumbent upon the authorities to pass a speaking and reasoned order. Any nomination or appointment de-hors the rules cannot be enforced and since the orders impugned do not come within the category of speaking and reasoned orders indicating the material on which the conclusion was drawn by replacing the Vice Chancellor from the selection committee in spite of the provisions in the regulations and bye-laws, the orders impugned are not sustainable in the eyes of law.
53. Learned counsel for the respondents have submitted that the respondents have power under Section 36-A of the Uttar Pradesh Technical Universities Act. This section provides that the State Government may issue directions with regard to the policy matters. The section has certain limitations by using words ''not inconsistent with the provisions of this Act". Regulations 10.12 and 10.15 read with bye-law 4 provide that the Vice Chancellor will the Chairman of the selection committee and it is by virtue of operation of the regulations and bye-laws.
54. The statutory power cannot be curtailed by executive instructions, further more the nomination of the Chairman, where there is a specific provision to hold the post by virtue of holding the post of Vice Chancellor, is not a policy matter. Regulations as well as bye-laws of the institute under Section 36-A empower the State Government to issue direction to the University on policy matter not inconsistent with the provisions of the Act. The orders impugned in the petitions reveal that they are neither in accordance with Section 36-A nor in accordance with the provisions of the Act and bye-laws.
55. Learned counsel for the petitioners has also submitted that the comparative chart of Vice Chancellor and person so nominated by the State Government shows the better academic eligibility criteria in favour of Vice Chancellor but we do not think it proper to discuss the comparative eligibility criteria regarding educational qualification or experience or publication. Suffice it to say that petitioner no.2 is the Vice Chancellor of the University while the person so nominated by the State Government in both the writ petitions are retired employees/Professors. The authority of the petitioners has also been challenged by the respondents for filing the writ petitions and in reply therewith it has been submitted by learned counsel for the petitioners that the petitions have been filed by the University through the Vice Chancellor so as to protect the right of the University as well as sanctity of the office of the Vice Chancellor. The Vice Chancellor is to act in accordance with the provisions of law and regulations and where bye-laws and regulations having been violated then the matter was raised before the competent authority and after that the petition was filed. Thus, the petitions aim to assert the right of the Vice Chancellor as well as the University. It is further argued that by virtue of the office and as per provisions of regulation 2010 as well as bye-laws of KNIT/BIET, Vice Chancellor of the University is to be appointed as Chairman of the selection committee and once the impugned orders have been passed in contravention of the statutory provisions then the University/Vice Chancellor through the University is an aggrieved party and has right to file a petition.
56. We have considered the submissions made by the learned counsel for the petitioners as well as respondents and are of the view that regulations and bye-laws having been violated and action of the State is not as per rules or regulations and passing the impugned orders the authority, Principal Secretary Uttar Pradesh Technical Education, has exceeded the jurisdiction while passing the impugned Government orders. If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits wrong channel adopted and If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. The exercise of power should not be made against the spirit of the provisions of the rules or regulations, otherwise it would tend towards arbitrariness and if it is found that any action is being violative of the rules or regulations within the category of arbitrariness, the same cannot be enforced. Accordingly, we find that the order dated 23.09.2016 [Annexure No.1 in Writ Petition No.30065 (SB) of 2016] and the order dated 07.11.2016 [Annexure No.1 in Writ Petition No.27515(SB) of 2016] are not in accordance with rules, regulations or bye-laws of the institute/affiliated colleges or rules governing the matters and are not sustainable in the eyes of law. Thus, we are of the view that both the writ petitions deserve to be allowed and orders impugned therein are liable to be quashed. Accordingly, Writ Petition No.30065 (SB) of 2016 and Writ Petition No.27515(SB) of 2016 are allowed and the orders dated 23.09.2016 and 07.11.2016 are hereby quashed. Parties shall bear their respective costs.
Order Date :- 12.4.2017
(Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.)
A. Katiyar