Allahabad High Court
Irshad Mohd Khan vs State Of U.P. And 3 Others on 16 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:164306 Court No. - 35 Case :- WRIT - A No. - 10786 of 2023 Petitioner :- Irshad Mohd Khan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bheem Singh,Aalok Singh,Sr. Advocate Counsel for Respondent :- C.S.C.,Gagan Mehta,Himanshu Singh Hon'ble Vikas Budhwar,J.
Heard Sri V.K. Singh, learned Senior Counsel assisted by Sri Bheem Singh, learned counsel for the petitioner, Sri P.K. Shahi, Additional Chief Standing Counsel who appears for the respondents 1 & 3 and Sri Himanshu Singh, learned counsel who appears for the fourth respondent and Sri Gagan Mehta, learned counsel who has been accepted notice on behalf of second respondent.
Since counter and rejoinder affidavits have been exchanged between the parties thus with the consent of the learned counsel for the parties the matter is being disposed of at the fresh stage.
The case of the writ petitioner is that he has passed High School as well as Intermediate examinations from U.P. Board and after successfully pursuing graduation and Law Degree from the Meerut University, Meerut, he also obtained L.L.M. from Aligarh Muslim University and Ph.D. in Law from Chaudhary Charan Singh University, Meerut. The further case of the writ petitioner is that he was duly appointed as an Ad hoc Lecturer in Law on 9.1.1990 in the respondent no.4 institution, N.R.E.C. College, Khurja, District Bulandshahr and his claims that his services were regularised on 30.6.1992. It is the further case of the writ petitioner that he was promoted as Senior Lecturer in the year 1998, Reader in the year 2001, Associate Professor in the year 2006 and Professor in the year 2021 and he was also granted charge and appointed as Dean Faculty of Law in Chaudhary Charan Singh University, Meerut.
According to the writ petitioner an advertisement was published bearing no. 49 on 2.3.2019 for appointment on the post of Principal. The writ petitioner applied in pursuance thereof and he participated in the written examination conducted on 29.10.2020 and the results so published on 15.2.2021, he was assigned position amongst successful candidate and he was allotted Roll No.100110. The writ petitioner further claims that on the basis of the verification of his testimonials as well as API score, he was called him interview and he subjected himself before the Interview Committee. In between according to the writ petitioner a Writ-A No.10035 of 2021 (Dr. Chitra Kumar Chauhan vs. Chairman, U.P. Higher Education Services Commission and another) was preferred before this court in which an interim order was granted providing that results of the selection in question be not declared however on 1.10.2021 the direction was issued by this court to declare the result provisionally and according to the writ petitioner in the result so declared his name figured at serial no.284 amongst the selected candidates for being recruited as Principal and thereafter the third respondent, Director of Higher Education, U.P. at Prayagraj pursuant to the notification dated 5.10.2021 on 22.10.2021 issued order appointing the writ petitioner as Principal in Shri Siva Degree College, Terahi, Kaptanganj, District Azamgarh. It is further the case of the writ petitioner that for certain reasons he could not join the institution in question which was allotted to him on 11.4.2022, the Secretary of Shri Siva Degree College, Terahi, Kaptanganj, District Azamgarh cancelled his appointment as Principal.As per the writ petitioner one Dr. Sant Kumar Yadav is manning the post of Principal in the said institution in question.
Learned counsel for the petitioner submits that pursuant to the exercise undertaken on 18.4.2023 by the third respondent, Director of Higher Education, U.P. at Prayagraj information regarding non-joining/death/resignation on the post of Principal of Degree Colleges which remained unfilled was being sought to which on 19.4.2023, the Regional Higher Education Officer, Meerut Region, Meerut wrote a letter to all the Secretaries/Principals of Meerut and Saharanpur Regions to submit rquuired inputs. He further submits that he also possess no objection from the fourth respondent institution in that regard and is officiating as Principal in fourth respondent institution.
Now according to the writ petitioner an exercise has been undertaken by the third respondent, Director of Higher Education, U.P. at Prayagraj for filling up the post of Principal by an incumbent who is in the waiting list in the fourth respondent pursuant to the advertisement No.49 dated 2.3.2019.
Prayer in this petition is for a direction to the third respondent, Director of Higher Education, U.P. at Prayagraj to appoint the petitioner in the College of the fourth respondent institution as duly selected Principal as according to the writ petitioner one Dr. Vipin Kumar Singh who had joined the fourth respondent institution in question on 1.11.2021 as a Principal due to his serious illness (Kidney transplant) had submitted his resignation on 30.4.2023 thus there is vacancy which still remains against which the writ petitioner can be granted appointment on the post of Principal.
This Court entertained the writ petition on 12.7.2023 while passing the following orders:-
"Heard Sri V.K. Singh learned Senior Counsel assisted by Sri Bheem Singh learned counsel for the petitioner submits that the entire exercise sought to be undertaken by the respondents No. 1 to 3 is proceeds on misconception of facts and law particularly in view of the fact that the writ petitioner on attaining necessary qualification of High School, Intermediate and after completing Graduation as well as Law degree from Meerut University, Meerut, LLM from AMU and successfully completing P.H.D. law from Meerut University was appointed as ad hoc lecturer in law on 09.01.1990 in the respondent No. 4, institution and his services were regularized on 30.06.1992. It is further the case of the writ petitioner that he was promoted as Senior Lecturer in 1998, reader in the year 2001, Associate Professor in the year 2006 and Professor in the year 2021. According to writ petitioner he was appointed as Dean Faculty of Law Chaudhary Charan Singh University Meerut being the senior most professor of the law university and also convener research development committee of the University and member of academic council of university and board of studies in law. According to the writ petitioner thereafter on 02.03.2019 an advertisement was published for filling up the post of principal, the writ petitioner applied in pursuance thereof and appeared in written examination held on 29.10.2020 and his name was found to be in the list of the successful candidates. Consequent to qualifying the written examination and post verification of his document as well as API score call letter was issued inviting him to appear in the interview and the writ petitioner appeared the interview however, in the mid-way Writ Petition No. 10035 of 2021 (Dr. Chitra Kumar Chauhan Vs. Chairman U.P. Higher Education Service Commission and Others) was preferred before this Court wherein an interim order was passed that the results of the selection be not declared however the said interim order stood modified on 01.10.2021 wherein though it was provided that the results be declared but appointment orders were directed not to be issued. It is further the case of the writ petitioner as depicted in para 13 of the writ petition that the second respondent thereafter issued a notification dated 15.10.2021 declaring the final list of all 290 candidates for the post of principal on the affiliated college wherein the name of the writ petitioner found place at serial No. 284.In para 14 it is further averred that pursuant to the notification dated 05.10.2021 the third respondent, Director of Higher Education, U.P. at Prayagraj issued an order on 22.10.2021 appointing the petitioner on the post of Principal in Sri Shiv Degree College, Terahi, Kaptanganj, District Azamgarh. It is the further case of the writ petitioner that in pursuance of the order dated 22.10.2021, the Secretary of the Sri Shiv Degree College, Terahi, Kaptanganj, District Azamgarh wrote a letter to the writ petitioner on 09.11.2021 requiring him to join the post in question within 21 days however the petitioner received the said communication on 13.10.2021 after receipt of the said communication wrote a letter on 13.11.2021 requesting therein that he may be given time for joining till decision in the writ petitions pending thereon. It is the further case of the writ petitioner that on 09.12.2021 the Director of Higher Education U.P. at Prayagraj wrote letter to the Secretaries of the Government aided colleges wherein time was extended so as to enable the selected principals to join. It is further the case of the writ petitioner as portrayed in para 20 that on 11.04.2022 the Secretary Sri Shiv Degree College, Terahi, Kaptanganj, District Azamgarh wrote a letter to the third respondent Director of Higher Education U.P. at Prayagraj that it has appointed Dr. Sant Kumar Yadav as Principal of the aforesaid institution whose name finds place at serial No. 52 and further in para 19 it has also been averred that on 11.04.2022 itself the Secretary of Sri Shiv Degree College, Terahi, Kaptanganj, District Azamgarh wrote a letter to the petitioner whereby it was mentioned that the appointment of the petitioner on the post of principal is cancelled. It is the stand the writ petitioner in para 21 of the writ petition that he is not challenging the validity of the said orders as according to him he has no grudge against Dr. Sant Kumar. In para 22, 23, 24 and 25 it is being sought to be submitted by the writ petitioner that an exercise has been undertaken by the third respondent while addressing to all Regional Higher Education Officers seeking information with regard to non-joining/death/resignation on the post of principal of degree colleges with the selections were made in pursuance of the advertisement No.49. It is the further stand of the writ petitioner on the strength of the averments made in para 27 that Dr. Vipin Kumar who was selected by the second respondent in pursuance of the advertisement No. 49 of the fourth respondent college joined the college in question on 01.11.2001 but due to medical ailments he submitted resignation before the fourth respondent which was accepted on 30.04.2023 which in pursuance of the resolution and the meeting of the fourth respondent was accepted on 04.06.2023 and the order whereof was passed by the secretary of the fourth respondent on 05.06.2023. Learned counsel for the writ petitioner on the basis of the documents which have been annexed at page 80 Annexure 16 reference whereof at page 29 of the paper book has further submitted that the writ petitioner is performing his duties as officiating principal of the fourth respondent institution and according to him now the official respondents while taking recourse to the provisions of Section 13 of the U.P. Higher Education Service Commission Act, 1980 sub-section (4) of Section 13 of the U.P. Higher Education Service Commission Act, 1989 while taking aid with sub-section (2) of the same are seeking to appoint a selected principal which is not permissible as he seeks to reply upon the judgment in the case of Kamlesh Kumar Sharma Vs. Yogendra Kumar Gupta reported in 1998 1 UPLBEC 743 according to him once Dr. Vipin Kumar had joined the post in question and he resigned then the select list insofar as it pertains to Dr. Vipin Kumar ceases and the recruitment cannot be said to be a perennial reservoir so as to make recruitment as and when it stands occasion as in this regard now fresh selection is to be done and till the same is done the writ petitioner is to continue in the post in question as officiating principal. Sri Gaya Prasad Singh learned Standing Counsel as well as Sri Manoj Kumar Singh holding brief of Sri Gagan Mehta who appears for respondent No. 2 seeks time to obtain instructions as according to him it is a local matter.
Put up this case on 19.07.2023 by that time learned counsel for the respondents shall seek instruction."
A counter affidavit has been filed by learned Standing Counsel who appears for respondents no. 1 to 3 and the rejoinder to the same has been filed by the writ petitioner which is available on record. Further a counter affidavit has been filed by fourth respondent institution to which a rejoinder affidavit has also been filed.
Learned counsel for the petitioner has argued that in view of the judgement in the case of Kamlesh Kumar Sharma Vs. Yogendra Kumar Gupta reported in (1998) 1 UPLBEC 743 the respondents cannot fill up the post by a candidate empaneled in the waiting list against the vacancy which has arisen on account of death, resignation etc. He further submits that Sub-Section (4) of Section 13 of the U.P. Higher Education Service Commission Act, 1980 has been interpreted and clarified in the case of Kamlesh Kumar Sharma(Supra) and once the said vacancy stood filled up pursuant to the joining of Dr. Vipin Kumar Singh on 11.11.2021and his resignation on 30.4.2023 then afresh selection is to be conducted after issuing of an advertisement. He further submits that since the writ petitioner is officiating as Principal in the fourth respondent institution thus, he has a legal right to officiate till a regularly selected candidate comes and joins the post in question.
Sri P.K. Shahi, Additional Chief Standing Counsel who appears for the respondents 1 & 3 on the other submits that the writ petition so preferred by the writ petitioner is not only premature but also not maintainable at this stage particularly when no final orders have been passed as only data and information is being sought by the Competent Authority at the level of the third respondent, Director of Higher Education, U.P. at Prayagraj. According to him in Sub-Section (4) of Section 13 of the 1980 Act itself clinches the issue as according to him it is always open for the respondent to fill up the said post which became vacant on account of resignation, death etc. while posting an incumbent from the waiting list also. He however submits that let the third respondent, Director of Higher Education, U.P. at Prayagraj address the said issue as according to him this Court may not in the present proceeding at this stage undertake the task of giving a final verdict in that regard however leaving it open for the third respondent to take an appropriate decision in this regard.
Sri Himanshu Singh, learned counsel who appears for the fourth respondent institution on the other hand adopts the submission of the learned counsel for the petitioner as according to him he is supporting the case of the writ petitioner and he has nothing more to add.
Considering the submissions of rival parties as well as stand taken by them in particular the fact that till date no final decision has been taken but only information is being sought at the level of the third respondent thus as rightly submitted by Sri P.K. Shahi, Additional Chief Standing Counsel who appears for the respondents 1 & 3 let a fresh exercise be undertaken by the third respondent, Director of Higher Education, U.P. at Prayagraj.
Considering the submissions of rival parties as well as particular stand taken by Sri P.K. Shahi, Additional Chief Standing Counsel who appears for the respondents 1 & 3 the writ petition is being disposed of with the following directions:- (a) the writ petitioner shall approach the third respondent, Director of Higher Education, U.P. at Prayagraj while filing a comprehensive representation/application along with the self attested copy of the writ petition within a period of 15 days from today (b) on receipt of the representation/application by the third respondent, Director of Higher Education, U.P. at Prayagraj he shall thereafter put to notice the fourth respondent institution while seeking his response (c) thereafter within further period of 15 days it shall taken a decision strictly in accordance with law as per the mandate contained under the provisions of U.P. Higher Education Service Commission Act, 1980 as well as the law propounded on the said subject including the judgement in the case of Kamlesh Kumar Sharma(Supra).
Passing of the order today may not construed to be an expression that this Court has adjudicated on the merits of the matter as the on basis of the statements made by the rival parties, the writ petition has been disposed off.
Order Date :- 16.8.2023 piyush