Allahabad High Court
Smt. Archana Pandey vs State Of U.P. And 3 Others on 16 December, 2016
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD 'AFR' Judgment reserved on 27.09.2016 Judgment delivered on 16.12.2016 (1) Case :- WRIT - A No. - 8492 of 2016 Petitioner :- Smt. Archana Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi,Arvind Prabodh Dubey Counsel for Respondent :- C.S.C.,A.P.Pandey,Inteshwar Nath Singh Connected with (2) Case :- WRIT - A No. - 13407 of 2016 Petitioner :- Durgesh Kumar Yadav And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (3) Case :- WRIT - A No. - 13410 of 2016 Petitioner :- Rajeshwar Nath Tripathi And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (4) Case :- WRIT - A No. - 13412 of 2016 Petitioner :- Sidheshwar Tripathi And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (5) Case :- WRIT - A No. - 13414 of 2016 Petitioner :- Rahul Kumar Mishra And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (6) Case :- WRIT - A No. - 13485 of 2016 Petitioner :- Radheyshyam And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (7) Case :- WRIT - A No. - 13487 of 2016 Petitioner :- Sheshmani And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (8) Case :- WRIT - A No. - 13822 of 2016 Petitioner :- Vinay Kumar Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Alakshendra Pratap,Rajesh Kumar Yadav Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (9) Case :- WRIT - A No. - 13825 of 2016 Petitioner :- Santosh Kumar Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Alakshendra Pratap,Rajesh Kumar Yadav Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (10) Case :- WRIT - A No. - 14416 of 2016 Petitioner :- Shyam Prakash Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Alakshendra Pratap,Rajesh Kumar Yadav Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (11) Case :- WRIT - A No. - 15171 of 2016 Petitioner :- Devendra Mani Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Kushmondeya Shahi Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (12) Case :- WRIT - A No. - 18872 of 2016 Petitioner :- Prem Kishor Mishra Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Syed Shahnawaz Shah Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; (13) Case :- WRIT - A No. - 22982 of 2016 Petitioner :- Jagdish Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Syed Shahnawaz Shah Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh; and (14) Case :- WRIT - A No. - 22993 of 2016 Petitioner :- Vivek Kumar Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Arvind Kumar,Vijay Kumar Rai Counsel for Respondent :- C.S.C.,Inteshwar Nath Singh. Hon'ble Manoj Misra, J.
1. This bunch of writ petitions assail an order dated 17th February, 2016 passed by the Registrar, Madan Mohan Malviya, University of Technology, Gorakhpur (hereinafter referred to as the University). The said order has been passed pursuant to a resolution dated 30.01.2016 (Item No.22 thereof) of the Board of Management of the University which, in turn, was passed on letters dated 15th July, 2013 and 06th October, 2015 written by the State Government to the University seeking cancellation of appointments made in the year 2009 by Sri B.B. Singh, the then officiating Principal of Madan Mohan Malviya Engineering College, Gorakhpur (hereinafter referred to as the Engineering College). The petitioners have also assailed the aforesaid resolution and letters. As the impugned order is common in all these petitions and as they raise common questions of fact and law, with the consent of the learned counsel for the parties, they were heard together and are being decided by a common order. For the sake of convenience, Writ - A No. - 8492 of 2016 is taken as the lead petition as parties have extensively exchanged their pleadings in the said petition.
2. Considering the grounds on which the impugned order has been assailed, this Court does not consider it necessary to notice facts of each case separately, accordingly, the facts which are relevant for deciding these petitions are being noticed in brief.
3. On the basis of the pleadings exchanged in the lead petition the relevant facts that emerge from the record are as follows:
4. In the third five year plan of the State of U.P., a decision was taken to set up a Government Engineering College at Gorakhpur. As a consequence thereof, on 13.02.1962, the State Government created a temporary post of Principal for the College and, thereafter, the State Government proceeded to acquire land for the proposed College. On 26.06.1962, the State Government took a decision that the College would be established as an autonomous institution through a Society registered under the Societies Registration Act and be known as Pandit Madan Mohan Malaviya Memorial Engineering College, Gorakhpur. In furtherance thereof, a Society by the name of Madan Mohan Malaviya Memorial Engineering College, Gorakhpur was formed and registered under the Societies Registration Act on 08.11.1962 having its own Memorandum of Association and Bye-laws for governance. The overall control over the affairs of the Society was vested in a Governing Body called Board of Governors. The rules and regulations of the Society as contained in the Memorandum of Association gave extensive control to the State Government and its officers in the affairs of the Society as well as the engineering college set up by the Society. There is no dispute that the State provided funds for the College and its staff.
5. By Uttar Pradesh Madan Mohan Malaviya University of Technology Act, 2013 (hereinafter referred to as U.P. Act No. 22 of 2013), the Madan Mohan Malaviya Engineering College, Gorakhpur was reconstituted as Madan Mohan Malaviya University of Technology. By section 4 of U.P. Act No. 22 of 2013, every person employed by the Engineering College immediately before the commencement of the Act was to hold his office or service in the University by the same tenure, at the same remuneration and upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund, and other matters as he would have held if the Act had not been passed, and would continue to do so unless and until his employment was terminated.
6. Under section 30 read with Section 29 of the U.P. Act No. 22 of 2013, the Governor was pleased to make the First Statutes, 2015 for the University which were notified on 27th November, 2015 as U.P. Madan Mohan Malaviya University of Technology, Gorakhpur FIRST STATUTES, 2015. Statutes 49 and 50 of the First Statutes are relevant. Clause (5) of Statute 49 provides that notwithstanding anything contained in the terms of the contract of appointment or of any other terms and conditions of the employees, an employee may be removed from service on grounds of misconduct by the Board of Management after giving due opportunity. Clause (8) of Statute 50 provides that no employee shall be removed from service unless he/she has been given a reasonable opportunity of showing cause against the charges leveled for further action to be taken in regard to him.
7. Before the Engineering College was reconstituted as the University, by Advertisement Nos. 1 of 2006 & 1 of 2007, 68 posts, in total, of Group C (Class III) and Group D (Class IV) were advertised. Out of 68 posts, 28 posts were reserved for S.C./ S.T. & OBC category candidates and 40 were left unreserved. The selection against 28 reserved posts was completed prior to December 2007 and, according to the petitioners, those candidates were issued letter of appointment and they have joined and are working; and their appointments have not been cancelled even though they were made by adopting the same procedure as was adopted in the case of the petitioners whose appointments have been cancelled by the impugned order. It appears that the selection process in respect of the petitioners was completed in the year 2009 and, thereafter, appointment letters were issued in the same year. It is not in dispute that after their appointment the petitioners had joined the post on which they were appointed.
8. Later, an enquiry was set up against Sri B.B. Singh, the then officiating Principal of the Engineering College, in which one of the charges against him related to illegal appointments made on Group C and Group D posts in the year 2009. In respect of that enquiry, on 12.01.2012, an enquiry report was submitted thereby finding the charge of making illegal appointment on Group C and Group D posts proved as against the then officiating Principal Sri B.B. Singh. On the basis of the enquiry report dated 12.01.2012, a decision was taken on 31.12.2014 to deduct 30% of the pension payable to Sri B.B. Singh. In the meantime, on the basis of the aforesaid enquiry report dated 12.01.2012, by impugned letter dated 15th July, 2013, the State Government, through its Deputy Secretary, wrote to the Principal of the Engineering College that since from enquiry report it transpires that Sri B.B. Singh, the then officiating Principal, had not made appointments by adopting the prescribed procedure and that the appointments were made illegally therefore cancellation proceeding be drawn and the Government be informed accordingly. In the meantime the Engineering College was reconstituted as the University, therefore, the said letter was followed by another letter dated 06th October, 2015 requesting the Registrar of the University to take appropriate steps for cancellation of the appointments. Pursuant thereto, vide Item No.22 of the impugned resolution dated 30.01.2016, the Board of Management of the University took a decision to cancel the appointments made by Sri B.B. Singh in the year 2009 and as a consequence thereof, the Registrar of the University by the impugned order dated 17.02.2016 cancelled the appointment of the petitioners by one stroke of pen.
9. I have heard Sri R.K. Ojha, learned senior counsel, assisted by Sri K. Shahi for the petitioners; Sri Gajendra Pratap, learned senior counsel, assisted by Sri I.N. Singh for the University; and the learned Standing Counsel for the State-respondents.
10. The learned counsel for the petitioners has challenged the order of cancellation of appointment principally on the ground that once, after facing the selection process, the petitioners had been appointed and had worked for few years on payment of salary their appointments could not have been cancelled nor they could have been removed from service without opportunity of hearing. It has been submitted that neither the petitioners were given any show cause notice nor they were served with any memo of charge before cancellation of their appointment/termination of their service and therefore, the impugned orders are in gross violation of the principle of natural justice and as such liable to be set aside. On factual score, the petitioners have denied that their appointments were illegal and void and have also submitted that similarly appointed reserved category candidates have not been touched, which act is discriminatory.
11. The respondents have not disputed the fact that the petitioners were not given opportunity of hearing before cancelling their appointment, however, they have set up a plea that the appointment of the petitioners was illegal and void and therefore no opportunity of hearing was required.
12. During the course of arguments, attention of the court was invited to the enquiry report submitted in respect of the enquiry conducted against Sri B.B. Singh, the then officiating Principal of the Engineering College, as also to the punishment order dated 31.12.2014 passed against him. By referring to the enquiry report, the learned counsel for the respondents had submitted that the entire selection process was a stage managed show inasmuch as in two days, that is, on 21.02.2009 and 22.02.2009, 1194 applicants were invited, out of which 853 candidates were interviewed, for 41 posts of Group C and Group D, which was not humanly possible within that short span of time. It was pointed out that the Additional Commissioner, Gorakhpur had put a ban on declaration of result yet the result was declared and appointment letters were issued. In addition to above, it was pointed out that for appointment on Group C post, the Governor, under the proviso of Article 309 of the Constitution of India, had, vide notification dated 29th June, 2002, notified The U.P. Procedure for Direct Recruitment for Group C Posts (Outside the Purview of U.P. Public Service Commission) Rules, 2002 (hereinafter referred to as Rules, 2002) which provided for the recruitment procedure wherein, under Rule 5 thereof, the selection had to carry 100 marks and the merit list of candidates had to be prepared by providing due weightage to the educational record apart from other aspects whereas the appointment procedure followed by Sri B.B. Singh, the then officiating Principal of the Engineering College, was unique in itself and selection was made only on the basis of interview by giving a go bye to the procedure prescribed by Rules, 2002 and, therefore, the appointments were void in itself and as such no opportunity of hearing was required to be given to the candidates before cancelling their appointments. In respect of the same procedure being adopted for appointment of reserved category candidates in the year 2007 and their appointments having not been cancelled so far, it was submitted that there cannot be parity in illegality, because illegality cannot be perpetuated.
13. In response to the above submissions, the learned counsel for the petitioners submitted that the cancellation order does not specifically disclose that the appointments were in violation of the Rules, 2002, therefore, keeping in mind the law laid down by the Apex Court in the case of Mohinder Singh Gill & Anr vs The Chief Election Commissioner : (1978) 1 SCC 405, such aspect cannot be taken notice of. It has also been submitted by the learned counsel appearing for the petitioners that the Engineering College was established by an autonomous society and, therefore, the rules framed under the proviso of Article 309 of the Constitution of India would not be applicable to it. In support of the aforesaid contention, reliance was placed on a decision of the apex court in the case of Union Public Service Commission v. Dr. Jamuna Kurup : (2008) 11 SCC 10 where, in paragraph 16, it was observed that Municipal Corporation is not "Government", and municipal employees are not government servants governed by Articles 309 to 311 of the Constitution of India. Likewise, reliance was also placed on another decision of the Apex Court in Kendriya Vidyalaya Sangathan v. Arun Kumar Madhavrao Sinddhaye and another : (2007) 1 SCC 283 wherein it was held that Article 311 of the Constitution of India would not be applicable to employees of Kendriya Vidyalaya Sangathan. Similarly, reliance was also placed on a decision of the Apex Court in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and others : (2005) 7 SCC 764 wherein it was observed that employees of Government Corporations or Public Sector Undertakings are not entitled to the protection guaranteed by Article 311 of the Constitution of India. Reliance was also placed on a decision of the Apex Court in Rajasthan State Road Transport Corporation and others v. Gurudas Singh : (2004) 13 SCC 418 wherein it was held that even though an authority may be treated as "State" within the meaning of Article 12 of the Constitution of India but that would not mean that for the purpose of applicability of Article 311 of the Constitution the said authority is a "State". Reliance has also been placed on a Division Bench decision of this Court in the case of State of U.P. and others v. Pitamber : 2010 (9) ADJ 533 in which it was held that employees of District Rural Development Agency (DRDA) would not be entitled to the benefit of Rule 56 of the Fundamental Rules, which are applicable to Government servants, inasmuch as DRDA was a Society registered under the Societies Registration Act and, therefore, its employees would be employees of DRDA and they would not hold civil posts in service of State.
14. In addition to above, the learned counsel for the petitioners has submitted that in the present case there is no disclosure in the impugned order that the petitioners had played fraud or had submitted forged documents or that they were not otherwise eligible for the post. Therefore, as there was no fault on the part of the petitioners and the selection process was concluded after due advertisement of the posts, there was no valid reason for the University or for the State-respondent to treat the appointment of the petitioners as illegal or void and cancel the same without even providing opportunity of hearing to the petitioners. It has been submitted on behalf of the petitioners that since the appointments were made in the Engineering College when, at that time, it was not a University, the appointment procedure was governed by Model bye-laws governing the Engineering College. It has been submitted that under the bye-laws, appointments were to be made upon recommendation of the Selection Committee and the Selection Committee, for the post of Group C and Group D, was to be constituted as per the direction of the Principal/Director of the Engineering College. It has been submitted that the appointments were made upon recommendation made by the Selection Committee which was duly constituted by the then Principal of the Engineering College, therefore, the appointments were not void or illegal which could be cancelled without opportunity of hearing. It has also been submitted that had opportunity of hearing been given to the petitioners before cancellation of their appointment, they could have satisfied the authorities that the appointments were legal and valid and that they call for no interference.
15. In the alternative, it was also submitted on behalf of the petitioners that once their appointment was given effect to and their services had been confirmed, consequent to the reconstitution of the Engineering College as a University, the service of the petitioners could have been terminated only after following the procedure prescribed by First Statutes of the University, which clearly provided that no person would be removed from service without opportunity of hearing. It has, thus, been submitted that the order cancelling the appointment is illegal and is liable to set aside.
16. The learned counsel for the respondents submitted that Rules 2002, would be applicable to the Engineering College because it was a Government funded Engineering College, completely under its control, though established through a Society and, therefore, its establishment, management and running was well within the affairs of the State and as such Rules framed under the Proviso to Article 309 of the Constitution of India, in absence of any clause excluding its applicability on the Engineering College, would be applicable and as such the appointments made without following the prescribed procedure were illegal and void. The learned counsel for the respondent University however could not dispute that the impugned order passed by the Registrar of the University as also the resolution concerned of the Board of Management including the impugned letters of the State Government did not specifically cite infraction of Rules, 2002 in making of appointments in respect of the petitioners though the enquiry report in respect of B.B. Singh does refer to the same.
17. I have given thoughtful consideration to the rival submissions. From the record and the rival submissions what is undisputed is that the petitioners were appointed in the year 2009 and, thereafter, they were confirmed and paid salary and they became employees of the University consequent to the reconstitution of the Engineering College; and that their appointments have been cancelled without opportunity of hearing to them. In Mahipal Singh Tomar v. State of Uttar Pradesh and Ors. : (2013) 16 SCC 771, before the Apex Court an issue arose as to whether appointment of a Principal in a College could be cancelled without giving him opportunity of hearing on the ground that the appointment was void because it was made by way placement order passed by the Director, even though the vacancy in the College concerned was not advertised. On the said issue, the Apex Court, in paragraph 13 of its judgment, observed as follows:-
"We have heard learned counsel for the parties and scanned the records of all the appeals. Since there is no dispute between the parties that copy of the report prepared by the District Magistrate was not supplied to any of the appellants and no action oriented notice or opportunity of hearing was given to them proposing cancellation of their placement as Principals and termination of their services, there is no escape from the conclusion that the decision taken by the State Government and consequential actions taken by the Director and the Management of the Colleges were nullity and the laboured exercise undertaken by the High Court to record a finding that placement of the appellants in the particular Colleges was void was not at all warranted."
18. In Inderpreet Singh Kahlon and others v. State of Punjab and others : (2006) 11 SCC 356, the Apex Court considered the question whether the selection and appointment to the Punjab Civil Services (Judicial Branch) could be cancelled on the allegations of favoritism and corruption without giving opportunity of hearing to the selected candidates. In that case, complaints were received in respect of large scale irregularities in the process of selection as a consequence thereof the High Court recommended to the State Government that entire selection be cancelled. The State Government accepted the recommendations of the High Court and cancelled the selection. The affected candidates, some of whom had already been appointed against the vacancy, challenged the decision of the High Court and the State Government. The High Court dismissed the writ petition. The Apex Court reversed the order of the High Court and held that the selection could not have been cancelled without giving opportunity of hearing to the affected candidates. While holding as above, in paragraph 41, the Apex Court observed as follows:-
"41. If the services of the appointees who had put in few years of service were terminated; compliance of three principles at the hands of the State was imperative, viz., to establish (1) Satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) determine the question that the illegalities committed go to the root of the matter which vitiate the entire selection process. Such satisfaction as also the sufficiency of materials were required to be gathered by reason of a thorough investigation in a fair and transparent manner; (3) Whether the sufficient material present enabled the State to arrive at satisfaction that the officers in majority have been found to be part of the fraudulent purpose or the system itself was corrupt."
19. In the instant case, to justify cancellation of appointments sans opportunity of hearing reliance has been placed by the respondents on the enquiry report submitted in reference to disciplinary action taken against the then officiating principal, namely, Sri B. B. Singh. The case of the respondents is that a large number of candidates were interviewed in a span of two days which were not humanly possible and it appeared that the exercise was a stage managed show. Whether that by itself would disclose that the system was corrupt or that the selection was tainted so as to give a go bye to the principles of natural justice, is doubtful. More so, in absence of any cogent material to show that improper consideration had passed to the officer concerned. In this regard, it would be apposite to refer to the observations made by the apex court in Joginder Singh and others v. Roshan Lal and others : (2002) 9 SCC 765, where, in paragraph 5 of its judgment, the Apex Court observed that merely because there were a large number of candidates, who appeared on two days, cannot ipso facto lead to the conclusion that the process of selection was a farce and fair chance was not given. Normally, experienced persons are appointed as members of the Selection Committee and how much time should be spent with a candidate would vary from person to person. Merely because only two days were spent in conducting the interviews for the selection of Class IV posts cannot lead to the conclusion that the process of selection was not proper. Thus, this Court is of the view that from the above material it cannot be inferred that the system itself was corrupt or that the officers in majority were found to be part of the fraudulent purpose.
20. The other contention of the learned counsel for the respondents that appointments were made de hors the Rules, 2002 and, therefore, were void and as such no opportunity of hearing was required, cannot be accepted in the light of the decision of the Apex Court in the case of Mahipal Singh Tomar v. State of Uttar Pradesh and Ors (supra) wherein the laboured exercise by the High Court, to find out that the appointment was void, was disapproved keeping in mind that the cancellation was sans opportunity of hearing. Even otherwise, there is a serious dispute between the parties as to whether Rules, 2002 would apply or not. Further, this Court does not consider it appropriate to enter into the merits of the said issue, at this stage, because the order impugned has been passed without opportunity of hearing and the aforesaid question has not been specifically gone into and adjudicated upon by the authorities concerned at their level.
21. Having noticed the facts and the legal position, considering that the petitioners were appointed in the year 2009 on posts which were advertised and, thereafter, upon reconstitution of the Engineering College as the University, they had continued in service of the University for few years, this Court is of the considered view that the petitioners' service could not have been dispensed with without opportunity of hearing to the petitioners under the garb of cancelling their appointment.
22. In view of the discussion made above, this Court finds that the impugned orders are in violation of the principles of natural justice and, as such, cannot be legally sustained and, therefore, are liable to be quashed. Accordingly, the writ petitions are allowed. The cancellation/termination order dated 17.02.2016 passed by the Registrar, Madan Mohan Malaviya University of Technology, Gorakhpur and the resolution dated 30.01.2016 passed by the Board of Management in respect of Item No. 22 thereof are hereby quashed. As by the impugned letters dated 15.07.2013 and 06.10.2015, the Government had only requested for drawing appointment cancellation proceeding in accordance with law, this Court does not find it appropriate to quash the said letters thereby leaving it open to the respondent-University to take appropriate action in accordance with law after giving opportunity of hearing to the employees concerned. As the cancellation/termination order dated 17.02.2016 has been quashed, the petitioners would be entitled to all consequential benefits.
23. All the above writ petitions stand allowed to the extent indicated above.
Order Date :- 16.12.2016 Sunil Kr Tiwari