Madhya Pradesh High Court
Manoj Pratap Singh Yadav vs Union Of India Thr on 27 August, 2019
Equivalent citations: AIRONLINE 2019 MP 1049
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE G.S. AHLUWALIA
Writ Petition No.4308/2016
.........Petitioner: Manoj Pratap Singh Yadav
Versus
.........Respondents: Union of India and others
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Mr. Manoj Pratap Singh Yadav, petitioner is present in person.
Shri S.S. Bansal, counsel for respondents No.1, 2 and 9.
Shri Nakul Khedkar, Proxy counsel on behalf of Shri Vivek
Khedkar, A.S.G. for respondent No.3.
Shri Himanshu Pandey, counsel for respondent No.6.
Shri Prashant Sharma, counsel for respondent No.8.
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Date of hearing : 14/08/2019
Date of Order : 27/08/2019
Whether approved for reporting : Yes
Law laid down :
Significant paragraphs :
ORDER
(27/08/2019) This petition under Article 226 of the Constitution of India has been filed seeking the following relief(s) :
(i) That, the present petition filed by the petitioner may kindly be allowed;
(ia) That, the orders contained in Annexure - P/1-A and P/6 may kindly be quashed.
(ib) That, the respondent no.3-C.B.I be commanded to take cognizance and register F.I.R. over the fraudulent act of the respondent no.8 who got 2 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others appointment over the regular post of Professor and further at the post of Director in collusion with Respondent No. 6 and 7 as Respondent No. 6-Usha Sharma and Respondent No. 7-
Neela Lad deliberately gave undue advantages to Respondent No. 8 by practicing undue favoritism and relaxing the rules, causing loss to the government exhcequer.
(ic) That, the respondents be further commanded to cease the functioning of the Respondent No. 8 as Director with a further to cease the drawing and disbursing powers and with appropriate direction of recovering the public exchequer money from the Respondent No. 8, in the interest of justice.
(ii) That, the letter dated 18.3.2016 Annexure P/1 issued by the CBI may kindly be directed to be quashed and the respondent-CBI may kindly be directed to register the FIR and to investigate the matter against the respondent no. 8-Sandeep Kulshrestha in accordance with law.
(iii) That, in an alternative the Hon'ble Court may direct the S.H.O. Police Station University Gwalior to register the complaint filed by the petitioner in an FIR against the respondent no. 8-Sandeep Kulshrestha and to investigate the matter to conclude the investigation in a time bound programme and to take action against the respondents no. 6 and 7.
(iv) That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner.
2. Initially, the present petition was filed seeking a relief of quashment of order dated 18-3-2016 by which the CBI had informed the petitioner, that the Bhopal Branch of CBI had registered a complaint against Dr. Sandeep Kulshreshtha, Director, IITTM Gwalior on 9-7- 2014, and after completion of verification, the matter has been referred 3 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others to the CVO, Ministry of Tourism, Govt. of India, with request to enquire into the role of Dr. Sandeep Kulshreshtha and if deems fit, the local police may be approached for taking necessary action against him. Thus, a prayer was made seeking quashment of the above mentioned letter and for direction to the CBI to register the FIR and investigate the matter. Thereafter, by amendment, the present petition was converted into a petition seeking writ of Quo Warranto and relief Clause(s) 7(i-a) to 7(i-
c) were inserted.
Thus, this petition is in two parts i.e.,
(i) seeking direction to the CBI to investigate the matter after registering FIR;
(ii) to issue writ of Quo Warranto against the respondent no.8 Sandeep Kulshreshtha, and also to recover the salary.
3. The facts, which according to the petitioner, are necessary for disposal of the present petition in short are that an advertisement was issued for appointment on the post of Professor (Tourism) in Indian Institute of Tourism and Travel Management ( in short "IITTM") and accordingly, the Respondent No.8 Sandeep Kulshreshtha also applied for appointment on the post of Professor (Tourism). The respondent no.8 also submitted his Curriculum Vitae (in Short "CV") and disclosed his work experience.
4. It is pleaded in the writ petition, that the respondent no.8 Sandeep Kulshreshtha had claimed that he had around six years of experience of teaching MBA, MPA and M.Com. Classes at Madhav College, Gwalior 4 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others affiliated to Jiwaji University, Gwalior during 1991 to 1997. He also claimed that he had taught for another around six years at Post Graduate Level in IITTM during 1997 to 2003. He also claimed that between 1990 to 1991 for a period of around six months, he was working as Guest Faculty and was teaching M.B.A. Classes in Jiwaji University, Gwalior. Thus, he claimed that he has total 12½ years of teaching experience, whereas for appointment to the post of Professor (Tourism), in IITTM,, the requirement was of 10 years post Graduate Teaching experience. It was contented by the petitioner, that during 1991 to 1997, there were no MBA or MPA classes in Madhav College, Gwalior, and thus claim of six years of teaching experience was false. It has been further pleaded that between 1997 to 2002, the IITTM was not running the classes of Post Graduate Level. Thus, it has been claimed that the respondent no.8 Sandeep Kulshreshtha, had submitted a false declaration with regard to his work experience of teaching Post Graduate Classes. It was further pleaded that the selection committee had met twice on 24-2-2003 and the minutes were not signed by their chairperson. It is further pleaded that the constitution of two selection committees on the same day for single purpose in itself is actus reus accompanied by mens rea. Thus, a complaint was made by the petitioner against the respondent no.8 Sandeep Kulshreshtha that he has willfully provided false information. An enquiry was done at the level of Ministry of Tourism, Govt. of India and it was observed as under :
"Dr. Kulshreshtha has not been able to 5 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others substantiate the claim that he has taught MBA/MPA classes in Madhav College. He had provided certificates about teaching these courses in Jiwaji University and that too for short period as guest faculty etc."
5. It is further pleaded that after having come to know that, no FIR was lodged by the Ministry of Tourism, therefore, on 1-9-2014, the petitioner made a complaint before the CBI which was registered and it was claimed that the CBI has found that the allegations/complaint is true. However, the CBI instead of registering the FIR, diverted the matter to CVO, MoT, which should not have been done. Further, it was pleaded that the petitioner had also made complaints to the Superintendent of Police Gwalior, as well as to SHO Police Station, University, Gwalior and the police in its report dated 11-01-2016 maintained that MBA and MPA programmes were not conducted by Madhav College, Gwalior and the respondent no.8 Sandeep Kulshreshtha could not produce documents in support of his 10 years experience of teaching Post Graduate Classes. However, the local police has refused to proceed further on the ground that the CBI is already investigating the matter. It was further pleaded that the petitioner had filed an application under Section 482 of Cr.P.C. which has been disposed of with liberty to undertake the appropriate remedy available to him under the law. It was further pleaded that on 12- 6-2014 the respondent no.8 was thereafter, appointed as Director, IITTM. One of the essential requirement was that the candidate should have vigilance clearance given by Secretary/Vice Chairman of the 6 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Department. However, no such Vigilance Clearance was obtained, although the respondent no.6 was aware of the enquiry which was pending against the petitioner. Later on, the petition was amended and it was pleaded that the initial appointment of the respondent no.8 against the regular post of Professor (Tourism) is based on false information/declaration and these facts were inquired, investigated and were found to be correct by CBI, Ministry of Tourism and the M.P. Police, Gwalior. The respondent no.8 Sandeep Kulshreshtha got the employment in collusion with competent authorities. Such an appointment deserves to be quashed. It was further pleaded that the respondent no.8 further got the appointment to the post of Director, with undue favoritism from the competent authority as well as in violation of the rules of selection process, particularly, the candidature of one Mr. A.R. Subramanian was rejected on similar allegations. Rules should have been fair and square for all, but nepotism and collusion brought the post of Director to respondent no.8. It is also pleaded that in spite of the fact that an inquiry was pending against the respondent no.8 at the time of selection process for the post of Director, IITTM, the candidature of respondent no.8 was taken into consideration. It is claimed that such appointment is de hors the rules and is based on illegal and colourable exercise of powers, which deserves to be quashed.
6. Thereafter, IA No.4752 of 2016 was filed by the petitioner for taking facts and documents on record.
7. I.A. No. 4753 of 2016 was filed for impleading The Chief 7 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Vigilance Officer, Ministry of Tourism, Govt. of India, Transport Bhawan, New Delhi. The application was allowed and C.V.O. was impleaded as Respondent no.9.
8. The respondent no.8, thereafter, filed his return and raised a Preliminary Submission, that the petitioner had earlier filed a M.Cr.C. which was withdrawn with liberty to file writ petition. It was claimed that the respondent no.8 was teaching M.Com classes in Madhav College, Gwalior from 25-02-1991 to 27-01-1997. He has also taught MBA and MPA classes in Jiwaji Univesity as Guest Faculty. He had been teaching as Reader IITTM since, 29-01-1997 to 2003 (upto the date of submission of application for the position of Professor (Tourism)) in post graduate course as course of diploma in Tourism Management is available after graduation and is more than 12 months, therefore, as per AICTE norms, it is Post Graduate Course. It was further claimed that no vigilance enquiry was pending against the respondent no.8. It was further claimed that CVO and CVC have found that no incorrect declaration has been made. It was further prayed that since, the petitioner has filed the petition seeking direction to the CBI to investigate the matter, therefore, the writ petition is not maintainable. It was further claimed that the petitioner had misconstrued and misinterpreted the letter Annexure P/1. The CBI had referred the matter to CVO with a request of enquiry. It was further claimed that the complaint made by the petitioner has no basis. The CVC has already made an enquiry which has not been challenged by the petitioner. So far as the work experience of the 8 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others respondent no. 8 is concerned, it has been duly verified by Jiwaji University as well as Madhav College. The vigilance Clearance was also given. Even Police Station University has also found that no case was pending against the respondent no. 8. It was further pleaded that the CV submitted by the respondent no.8 was clear and unambiguous. The respondent no.8 had claimed that he was teaching MBA and MPA classes in Jiwaji University as guest faculty and certificates have also been duly granted by the Jiwaji University. From 1997 to 2002, the respondent no.8 was teaching Post Graduation Courses as Reader (Business Study) in IITTM. It was further pleaded that the Selection Committee was duly appointed and after due consideration, it has issued the appointment order. The order of appointment has not been put to challenge. The petition is completely silent about the delay and, accordingly, it is liable to be dismissed on the said ground only. It was further pleaded that there is no difference in the proceedings of both the selection committees held on 24-2-2003. It was further pleaded that the respondent no. 8 had never claimed that he had taught MBA and MPA Course in Madhav College, but in fact he was teaching in Jiwaji University. The note sheet (Annexure P/9) is an incomplete note sheet. It was also pleaded that all necessary work experience certificates were produced by the respondent no.8 at the time of appointment on the post of Professor (Tourism). Only after verifying the experience certificates from Jiwaji University, the CBI had referred the matter to CVO. The dismissal of petition under Section 482 of Cr.P.C. has not been disclosed by the petitioner. The respondent 9 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others no.8 has been appointed as Director, IITTM after due procedure of law. Vigilance clearance is also there. It was further mentioned that the petitioner is habitual of making complaints. He was continuously uploading obnoxious material on Facebook against the Institute as well as against the respondent no. 8. The petitioner is a dismissed employee of IITTM.
9. It appears that after the writ petition was amended by order dated 22-10-2018, and a writ of Quo Warranto was prayed, the respondent no.8 did not file any additional return.
10. I.A. No. 1700 of 2017 was filed on 10-03-2017, by respondents through their Counsel Vivek Khedkar. This application was supported by an affidavit of K.P. Gautam, who was in the service of IITTM, Gwalior and had claimed himself to be the OIC of the case. In this application, it was pleaded that the petitioner has no locus standi, because neither he was an employee of IITTM nor had applied for appointment on the post of Professor (Tourism) or Director. Otherwise, the matter was sent by CBI to the CVO and CVO has investigated the matter and vide office memorandum dated 8-02-2017, it has been decided to close the action at the end of CVO. Thus, it was claimed that nothing survives in the petition.
11. Thereafter, the respondent no.3, CBI filed its separate return on 12-7-2017 and admitted that during 1991 to 1997 there were no MBA or MPA Classes in Madhav College, Gwalior. Further, regarding six years teaching experience of respondent no. 8 at Post Graduate Level between 10 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others 1997 to 2002, Shri Sitikantha Mishra, Chairman, All India Board of Hospitality & Tourism Management, AICTE, New Delhi has clarified vide his E-mail dated January 22, 2015 that Diploma in Tourism Management Course, IITTM, in the year 1997 to 2002 was approved by AICTE. In the year 1997, AICTE had not instituted Post Graduate Certificate in Management/Tourism courses with the duration of more than 12 months and less than 24 months. It is further submitted that the complaint was received through E-mail dated 1-9-2014 which was registered in CBI on 1-09-2014 for verification. The verification of complaint revealed that Dr. Sandeep Kulshreshtha had given wrong information in his curriculum-vitae regarding taking classes of MBA and MPA Courses at Madhav Mahavidyalaya, Gwalior and no offence was found made out as under PC Act, 1988. Further, as per notification no. 428 dated 12-10-2012 issued by the Govt. of Madhya Pradesh (Annexure -1), CBI cannot take up cases for investigation which involve only IPC offences. Hence, the result of verification of the complaint was referred to the CVO, Ministry of Tourism, Government of India, New Delhi through Self Contained Note (SCN) with the request to enquire into the role of respondent no. 8 and if deemed fit, the local police may be approached for taking necessary action against him. This return is supported by an affidavit of Shri Bivash Kumar, Dy.S.P./CBI/ACB/Bhopal.
12. I.A. No. 4426/2017 was filed on 12-7-2017 itself by the petitioner for taking certain facts on record. In this application, it was pleaded that 11 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Shri Vivek Khedkar, Advocate is appearing on behalf of the Union of India as well as also on behalf of CBI/respondent no.3. Shri Vivek Khedkar has not filed his Vakalatnama along with I.A. No.1700/2017. As per direction of this Court dated 29-8-2016, Shri Vivek Khedkar has filed I.A. No.1700/2017 on behalf of Union of India, for dismissal of the writ petition, however, he maintained silence on the stand of the CBI/respondent no.3, and certain observations made by CBI in its report dated 07-10-2015 were reproduced.
13. However, since, the CBI in its return which was filed on 12-07- 2017 itself, has accepted its Self Contained Note, therefore, the details of Self Contained Note of CBI shall be considered at later stage. Thus, it is not necessary to mention the contents of I.A. No.4426/2017 in detail. However, a reply was given by IITTM under the RTI, mentioning therein that there is no provision in IITTM Byelaw/Constitution/Recruitment Rules to relax the essential qualification of a candidate applying to the post of the Professor in IITTM.
14. After considering the pleadings of the parties, which were already on record, this Court on 31-7-2017, passed the following detailed order:
"31.7.2017.
Petitioner, Manoj Pratap Singh Yadav, present in person.
Shri Shashank Indapurkar, learned counsel for respondents No.1, 3 and 9.
Shri Nirmal Sharma, learned counsel for
respondent No.8.
12 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others Heard on I.A.No.1476/2017 for pleading his case himself.
As petitioner has discharged his counsel, therefore, he is permitted to address the Court in person. I.A. is allowed.
Petitioner submits that though respondents No.1, 3 and 9 have filed a reply and have submitted that CBI has recommended for closure of the case, but they have deliberately not filed detailed note of the CBI on the basis of which such decision was taken to close the case against respondent No.8, despite there being a categorical finding by the Central Bureau of Investigation which too is represented by the same counsel showing that there were glaring irregularities like Ministry of Tourism was not able to explain about non-availability of signatures of the then Secretary (Tourism) on the minutes of the Selection Committee dated 24.2.03 and secondly though respondent No.8 Dr. Sandeep Kulshrestha remained posted as Assistant Professor (Commerce) at Madhav Mahavidyalaya, Gwalior, from 25.2.1991 to 27.1.1997, the course of MBA and MPA were not conducted at Madhav Vidyalaya, Gwalior. In view of the above facts, the role of the then officials of IITTM, Gwalior, and Ministry of Tourism , Govt. of India, were required to be inquired and if some criminality is found against them, the matter may be referred to CBI, Bhopal. It is also submitted that Dr. Sandeep Kulshreshtha had falsely declared in his CV that he has 10 years post graduate teaching experience while applying for the post of Professor (Tourism) at IITTM, Gwalior. His role may be 13 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others inquired into and if it is deemed fit, the local police may be approached for taking necessary legal action against him. He submits that this report of the CBI as has been filed by him along with list of documents dated 10.3.17 was examined by the Under Secretary of Ministry of Tourism, Govt. of India, whereby there are specific findings against the officials of Ministry of Tourism by the CBI and it has directed that enquiry be conducted in that matter. This closure as has been relied on by learned counsel for respondents No.1, 3 and 9 amounts to decision of the case in the matter of Julius Caesar by Caesar's wife.
In view of such matter, learned counsel for respondents No.1, 3 and 9 is required to show that how there is no conflict of interest between respondents No.1, 3 and 9 inasmuch as on the one hand respondent No.3 has castigated respondents No.1, 2, 8 and 9, but same authority whose role has been sought to be inquired has closed the file. He may also file complete copy of the file in which this order dated 8.2.17 passed by the Under Secretary, Ministry of Tourism, Union of India, was dealt with. Let needful be done within two weeks by filing specific affidavit as to the conflict of interest between respondents No.1, 3 and 9, so also the documentations on the basis of which order dated 8.2.2017 was passed.
List after two weeks in the week commencing 21st August, 2017."
and the Counsel for respondent nos. 1, 3 and 9 was directed to show that 14 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others how there is no conflict of interest between respondents no. 1,3 and 9.
15. Thereafter, clarification on behalf of respondents no. 1 (Union of India), respondent no.3 (CBI) and respondent no. 9 (CVO) was filed on 24-8-2017, pleading interalia, that in fact, the respondents no. 1 and 9 have not filed their return so far and therefore, there is no conflict of stand between respondents no. 1, 3 and 9. In a separate return which has been filed by respondent no.3/CBI, it has been specifically mentioned that the "verification of the complaint reveals that Dr. Sandeep Kulshreshtha had given wrong information in his curriculum vitae regarding taking class of MBA and MPA courses from Madhav Mahavidyalaya, Gwalior and no offence was made under the PC Act." In this clarification, much thrust was given to the Self Contained Note of CBI, according to which it was specifically found that Dr. Sandeep Kulshreshtha has given false information in his CV. However, it is further submitted that CVC has closed the matter on 20-10-2015. This clarification is supported by an affidavit of Akhil Saxena, working as Asstt. Director General (Vig) Ministry of Tourism, Government of India, Delhi.
16. Thereafter on 01-09-2017, I.A. No.5508/2017, an application under Section 195 r/w Section 340 of Cr.P.C. was filed pleading interalia, that although the CBI has already filed its return which is duly supported by Dy.S.P., CBI, ACB, Bhopal, but the clarification has been filed on behalf of CBI, which is supported by an affidavit of Asstt. Director General (Vig), Ministry of Tourism, GOI, which cannot be 15 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others done, because Shri Akhil Saxena cannot act as an OIC on behalf of CBI. It is also mentioned that Shri Vivek Khedkar ASG, has breached the promise of abiding by cannons of professional ethics of one of the noblest profession of advocacy. ASG must recall the oath he took as a lawyer and he should not resort to these kinds of undignified acts before the Court. The attempted machination before the Court is disgraceful, and a clear case of a mockery of the administration, rules and regulations of this Court and same must be noted and taken on record. IA No. 1700/2017 for dismissal of writ petition was submitted by Shri Vivek Khedkar, Advocate, who is representing respondents no. 1, 2, 3 and 9. I.A. No. 1700/2017 was filed along with an affidavit of KP. Gautam, aged about 66 years, and is a contractual employee of IITTM. The respondent no. 8 is the Director of IITTM and K.P. Gautam is employed beyond the age of 65 years on the mercy of respondent no.8. In the clarification, it was mentioned that no return has been filed by respondents no. 1 and 9, then it was questioned by the petitioner that, then on whose behalf, IA. No.1700/2017 was filed for dismissal of the writ petition in the name of respondents by Counsel Shri Vivek Khedkar, who is representing respondents no. 1, 2, 3 and 9. It was further pleaded that K.P. Gautam is directly reporting to respondent no. 8, against whom allegations have been made. It was further pleaded that this sinister machination clearly depicts the wrong doing of K.P. Gautam and ASG Shri Vivek Khedkar, as they are plying hide and seek with this Court as a dillydallying tactics. It was further pleaded that in fact it was the 16 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others respondent no. 8 who had got IA No. 1700/2017 filed for dismissal of the writ petition as the whole play has been knitted with malafide and on the directions of respondent no. 8 to safeguard himself by managing to present wrong documents and information, which tantamount to contempt of this Court. It was further pleaded that although the CBI had already come to a conclusion, that respondent no.8 Sandeep Kulshreshtha has submitted wrong information, but still the CVC has closed the case, thus, under these circumstances, it is absolutely unacceptable and unethical on the part of Shri Vivek Khedkar to present the views of the respondents no. 1 and 9 that conflicts with the stand of respondent no.3. Thus, it was pleaded that presenting the different views and measures of respondents by the same Counsel, namely, Shri Vivek Khedkar makes it crystal clear that he is not appearing with clean hands before the Court. Thus, it was pleaded that Shri Vivek Khedkar is playing a substantial role to hamper the delivery of justice to the petitioner. It was further pleaded that IA No. 1700/2017 was filed on behalf of respondents (in IA No. 1700/2017, it has not been clarified that the said application was filed by which respondent and it was merely mentioned that the application is being filed on behalf of respondents, and even the Vakalatnama was not filed). It was further pleaded that K.P. Gautam, aged about 66 years, is working on the mercy of the respondent no.8 and has prejudiced interest in respondent no.8 while the Counsel for respondent nos. 1, 2, 3 and 9 appear to be managing the ploy by arguing on both sides of the contention. ASG Shri Vivek Khedkar has also 17 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others violated his service rules (Law Officer Service Rule 1972). Shri Vivek Khedkhar has also given a legal opinion, by his letter dated 27-11-2016 to Director IITTM, Gwalior ( who is respondent no.8). By referring to office Memorandum dated 24-10-2014, issued by Ministry of Law and Justice, it is pleaded that point 8 puts certain restrictions on the law officer, which reads as under :
A Law Officer shall not,
(e) advice any ministry or department or Government of India or any statutory organization or any public sector undertaking unless the proposal or a reference in this regard is received through Ministry of Law and Justice department of legal affairs.
Point 3. Stated that, "the law officer are requested not to tender opinion/advice to Central Government Ministeries/ departments/PSU's/autonomous bodies or any other Central Government Instrumentries without getting reference from this Ministry."
17. It was further pleaded that K.P. Gautam, by pleading on behalf of respondents no. 1, 2, 3 and 9 have made a mockery of judicial process. This amounts to fraud to defeat the rights of the petitioner by perverting arguments and misguiding on behalf of respondents no. 1, 2, 3 & 9 and such manner of OIC and ASG, itself falls within the purview of criminal conspiracy in the present case. It was further pleaded that the clarification on behalf of respondents no. 1, 3 and 9 is also a fraudulent act of Akhil Saxena ADG (Vig) Ministry of Tourism, as he cannot 18 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others represent CBI, whereas the OIC of CBI is Shri Bivash Kumar Dy.S.P., CBI, ACB, Bhopal who had sworn an affidavit in support of return filed by CBI. CBI is an independent agency and filing of clarification by Akhil Saxena, without any authority from CBI is highly condemnable. Thus, it was prayed that K.P. Gautam, and ASG Shri Vivek Khedkar be prosecuted as per provisions of law and Shri Vivek Khedkar be debarred from presenting this case.
18. It appears that neither K.P. Gautam nor Srhi Vivek Khedkar, ASG have filed any reply to I.A. No. 5508/2017.
19. Thereafter, it appears that on 04-10-2017, Shri S.S. Bansal Advocate, filed his Vakalatnama on behalf of respondents no.1 and 2 (Union of India and Chairman Board of Governors, IITTM, New Delhi), however, the said Vakalatnama was signed by one Saurabh Dixit, Nodal Officer, working in IITTM-Gwalior, on behalf of respondents no.1 and 2. Thereafter, vide document No.7031/2017 filed on 01-12-2017, Shri S.S. Bansal, Advocate, filed authority letter issued by respondent no.1 in favor of Saurabh Dixit to sign Vakalatnama and other legal documents and to represent on behalf of respondents no.1 and 2.
20. It is not out of place to mention that even Saurabh Dixit, Associate Professor, is working in IITTM-Gwalior under the administrative control of respondent no. 8 and the respondents no. 1, 2 and 9 did not appoint any independent OIC to defend the case on their behalf.
21. Thereafter I.A. No.15/2018 was filed on 02-01-2018 by the petitioner that IA No.1700/2017 was filed on behalf of the respondents 19 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others along with the affidavit of K.P. Gautam by mentioning himself to be the Officer-in-charge of the case, however, K.P. Gautam is neither the employee of Union of India nor of CBI, whereas K.P. Gautam is a contract employee of IITTM, Gwalior which is led by respondent no.8 himself. It was further pleaded that RTI reveals that K.P. Gautam was never authorized by Union of India to file I.A. No.1700/2017 dated 10- 03-2017. The letter dated 21-11-2017 given under the Right to Information Act is filed as Annexure 31. It was further pleaded that although K.P. Gautam was aware that he has never been authorized by Union of India to represent, but still IA No. 1700/2017 was filed on behalf of respondents to dismiss the petition. Further, clarification on behalf of respondents no. 1, 3 and 9 was filed with an affidavit of Akhil Saxena, whereas Akhil Saxena was never authorized by CBI. It is also mentioned that Akhil Saxena, himself has replied under the Right to Information Act in its reply dated 19- 12-2017 and has mentioned that he was never appointed as OIC by CBI. However, it appears that the Counsel inadvertently committed a mistake which has been communicated to him. It was further pleaded that it is a sheer case of undignified attempt on part of Mr. Akhil Saxena in collusion with Mr. Vivek Khedkar to damage the petition at large in order to get it dismissed by the Court. Thus, it was prayed that K.P. Gautam and Akhil Saxena be prosecuted for having committed criminal contempt of Court.
22. The respondents no. 1 and 2 filed its reply to the above mentioned 20 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others application and submitted that allegations are being made against those persons, who are not party to the petition. It was further mentioned that the Union of India had directed the Director, IITTM vide its letter dated 11-08-2016 to engage the Counsel for the respondent no.1 and 2 and in compliance of that letter, the Director, IITTM engaged the Counsel as well as authorized K.P. Gautam, to act as an OIC vide its letter dated 11- 08-2016. The query of the petitioner was not proper therefore, the Union of India has given its reply to the query correctly. This reply was filed along with an affidavit of Saurabh Dixit, OIC. Along with this reply, the letter dated 11-8-2016, and order dated 11-08-2016 issued by respondent no.8, have been annexed. Order dated 11-8-2016 issued by respondent no. 8 reads as under :
To whom so ever it may concern Shri Manoj Pratap Singh Yadav, has filed a WP No. 4308/2016 in Hon'ble High Court of M.P., bench at Gwalior, in which Union of India, C hairman, BOG- IITTM, and Dr. Sandeep Kulshreshtha, Director- IITTM, Gwalior have been impleaded as respondent no. 1,2 and 8 respectively. Ministry of Tourism, Govt. of India, vide its office Memorandum no. 67(2)/2016j-IITTM dated 11-08-2016 has advised IITTM to engage a counsel on behalf of Union of India and also the Chairman BOG-IITTM, who also represents Union of India. Therefore, Shri Vivek Khedkar, Assistant Solicitor General, will represent Union of India as well as the Chairman, BOG- IITTM in the instant WP in Hon'ble High Court of MP, bench at Gwalior. As Dr. Sandeep 21 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Kulshreshtha, Director, IITTM, has been impleaded the case as respondent no.8, Shri K.P. Gautam, Consultant (A&f), IITTM, Gwaliior has been authorized to sign all the Vakalatnama, legal documents, and affidavits on behalf of respondent no. 1,2 & 8 for submission in High Court of M.P., Bench at Gwalior.
Signature (Dr. Sandeep Kulshreshtha)
23. On 26-2-2018, vide document No.1778/2018, the petitioner has filed the reply dated 31-1-2018 given by Ministry of Tourism, that no action was initiated by the HRD Divisional regarding authorizing K.P. Gautam, in the matter of writ petition no.4308/2016. A reply dated 31- 01-2018 given by Ministry of Tourism has also been place on record which is to the effect that HRD Division, Ministry of Tourism had not yet initiated any proposal with regard to authorizing Sh. K.P. Gautam, to appear in the Court on 08-01-2018. Along with this list of documents, the petitioner has also placed a letter issued by IITTM, Gwalior titled as "Search for Director" in which apart from other aspects, the Essential Qualifications have also been mentioned for appointment on the post of Director, IITTM-Gwalior.
24. On 1-3-2018, the respondents no. 1 and 2 filed their return along with an affidavit of Dr. Saurabh Dixit, Asstt. Professor, IITTM, Gwalior. In this return also, a preliminary submission was made that the petitioner has no locus standi to file the present petition. It was further pleaded that the petitioner has misconstrued and misinterpreted the letter Annexure 22 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others P/1. It is further mentioned that CVC is the apex vigilance body of Union of India and it has perused a report and has advised closure of matter vide office memorandum dated 20-10-2015. The Ministry of Tourism (Vigilance Division) has also closed the matter after investigation. The closure report has not been put to challenge by the petitioner, and therefore, nothing survives in the petition, and it has become infructuous. The CBI cannot take up cases for investigation involving offences under Penal Code only. The petitioner has an alternative remedy against the non-registration of F.I.R. It was further pleaded that the petitioner has already withdrawn petition under Section 482 of Cr.P.C. It was further admitted that during 1991 to 1997, there was no MBA or MPA classes in Madhav College, Gwalior. So far as 6 years teaching experience of respondent no. 8 at Post Graduate Level between 1997 to 2003 is concerned, it is submitted that Shri Sitikantha Mishra, Chairman, All India Board of Hospitality and Tourism Management, AICTE, New Delhi has clarified by his e-mail dated 22-1- 2015 that teaching in Diploma in Tourism Management Course run by IITTM from the year 1997 to 2002 was approved by AICTE. Therefore, teaching by Faculty Members of IITTM in the said diploma course is a Post Graduate Teaching as the entry qualification for this Course was minimum graduation from a recognized University. Further, it was mentioned that the Board of Governors had waived the requirement of ten years experience of PG teaching. Ministry has taken approval of Secretary (T) for the appointment of respondent no. 8 as Professor 23 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others (Tourism) in the IITTM who was the Chairman, Board of Governors of IITTM. The Selection Committee, in its meeting held on 4-7-2003, had recommended waiver of 10 years PG experience which has been approved by the BOG in its 27 th meeting held on 21-7-2003 and the respondent no. 8 was appointed as Professor (Tourism) w.e.f. 1-10-2003. It was further pleaded that the appointment of the respondent no. 8 has not been put to challenge by the petitioner. There is no difference between Annexure P/7 & P/8. No two committees were constituted. It was denied that the respondent no. 8 has secured appointment by providing false information. It was further pleaded that if the local police has declined to interfere in the matter, then the petitioner has an alternative and efficacious remedy. The petitioner has filed the present petition after withdrawing his petition under Section 482 of Cr.P.C.
25. Thereafter, IA No. 2040/2018 was filed by the petitioner on 25-4- 2018 along with certain documents including answer given by Ministry of Tourism (HRD Division) dated 9-5-2018, which reads as under :
Point No. 3 : No such information is available in the HRD Division with respect to appointment of Sh. Vivek Khedkar, ASGI to represent the case in respect of WP No. 4308/2016 on the behalf of respondent no. 1,2, and 9 Point No. 4 : As per information available in the file, no such information exists regarding sending of draft reply (WP No. 4308/2016) from IITTM to the HRD Division of the Ministry.24 Writ Petition No.4308/2016
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26. Thus, it is clear that replies were being filed on behalf of Union of India, without seeking approval of the draft from the Union of India, and Ministry of Tourism.
27. On 3-7-2018, the respondent no. 6 also filed her return and submitted that the petition is not maintainable and further the petitioner has no locus standi to file the petition and no enquiry was pending against the respondent no. 8.
28. Thereafter, on 11-07-2018, the respondents no. 1 and 2 filed their additional return . It was pleaded that one meeting was held under the Chairpersonship of Mrs. Rathi Vinay Jha who was the Secretary (T) and Chairperson of IITTM. Though Mrs. Rathi Vinay Jha had not signed the minutes of meeting of selection committee held on 24-2-2003, but Secretary (T) and Chairperson of IITTM is the appointing and competent authority for appointment and the appointment of respondent no. 8 was approved in the 27th meeting of BOG held on 21-7-2003 and later on was approved by Secretary (T) being appointing authority. Thus, it was stated that non-signing of minutes of meeting dated 24-2-2003 by Mrs. Rathi Vinay Jha cannot be questioned at all. It was further pleaded that minutes of another meeting dated 24-2-2003 were merely draft therefore, the contention of the petitioner, that two meetings of two selection Committees were held on 24-2-2003 was denied. It was further pleaded that the note of Government of India, Ministry of Tourism (HRD) Division vide its letter dated 22-9-2015 was received from the office of the Minster of State for Tourism (IC) without any signature of anybody, 25 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others and therefore, the case was re-examined and re-submitted to Minister (Tourism) indicating the actual facts and drawing attention to the reply received from the Principal, Madhav College Gwalior, and it was conveyed that Dr. Sandeep Kulshreshtha had taught MBA/MPA classes in Jiwaji University Gwalior as a Guest Faculty, on honorary basis. The PS to HM (T) recorded on the concerned file on 24-7-2015 that "HM(T) has been apprised of the situation. Page 55 of the file is not an official communication and may not be treated so."
29. Thereafter, on 16-07-2018, the respondent no.3, CBI, filed clarification to the effect that, earlier CBI has submitted the "self contained note" to the Chief Vigilance Officer, Ministry of Tourism, Govt. of India. The Central Vigilance Act, 2003 came into existence and the basic aim and object of the aforesaid Act is to inquire or cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act. The CVC is the main authority under which the CBI is working. It was also mentioned that the CBI has been informed that CVO, a Vigilance Division of Tourism Ministry has considered the case and has decided to close the case. It was once again submitted that there was no conflict of interest between the CBI and the CVO.
30. I.A. No. 4283/2018 was filed on 10-8-2018 by respondents no. 1, 2 and 9 for correction in clarification dated 18-8-2017 and it was mentioned that in fact the above clarification was filed by respondents no. 1, 2 & 9, but by mistake, it was mentioned as 1, 3 & 9 and thus, 26 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others prayer was made to correct the typographical error. This application was filed along with an affidavit of Sh. Raja Kar, Under Secretary, Vigilance, Ministry of Tourism.
31. On 10-8-2018, the petitioner by Document No. 6623/2018 placed certain documents on record.
32. Document No.7734/2018 was filed by the petitioner on 14-9-2018 and certain documents were filed. Letter dated 4-7-2016 written by Ministry of Tourism to the Director IITTM, and reply dated 11-8-2016 written by Director-IITTM, Gwalior to Ministry of Tourism reads as under :
"To, The Director, IITTM, Govindpuri, Gwalior.
Subject : WP No. 4308/16 Manoj Pratap Singh Yadav Vs. UOI & Ors Sir, I am directed to forward the above writ petition provided by the Asstt. Solicitor General of India, High Court of India, Madhya Pradesh. Shri Manoj Pratap Singh Yadav has filed the Case and has made the respondents to Secretary Tourism, Govt. of India, Chairman BOG, Director CBI, SP Gwalior and Director, IITTM Gwalior etc. The enclosed writ petition is self Explanatory.
You are requested to kindly prepare the joint reply of the above writ petition and defend the case on behalf of Union of India under intimation to this Minstry.
Kindly acknowledge the receipt of this letter.
Yours faithfully Sudhir Kumar Asstt. Director (HRD)"
Reply dated 11-8-2016 sent by respondent no. 8 reads as under :
"To, Sh. Sagnik Chowdhury, Asstt. Director General (HRD), 27 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others HRD, Division, Ministry of Tourism, Transport Bhavan, New Delhi -110001 Sub: Engaging a counsel to plead on behalf of Union of India, by IITTM in Hon'ble High Court of MP, bench at Gwalior in WP No. 4308/2016 filed by Sh. Manoj Pratap Singh Yadav Vs. UOI & Ors.
Ref: MoT (HRD) Office Memorandum No. 67(2) 2016- IITTM dated 11-8-2016 Sir, I am to invite a reference to MoT (HRD) OM dated 11- 08-2016 on the subject cited above wherein Director-IITTM has been authorized to engage a counsel to plead the case on behalf of Union of India in WP 4308/2016, as well as to protect the interest of Union of India, and to state that as per the telephonic discussion held with you today, and as advised by that we may engage Sh. Vivek Khedkar, Assistant Solicitor General, High Court, Gwalior to represent Union of India, in the instant WP 4308/2016 as the counsel of IITTM cannot represent the Union of India as because I have been made one of the respondents by the petitioner in the WP. Accordingly, as per the decision taken by MoT, I am informing Sh. Vivek Khedkar, ASG to represent the Union of India in WP.
As regards, the signing of Vakalatnama, affidavits, other legal papers and relatied documents, I am further authorizing Sh. Kanti Prasad Gautam, Consultant (A&F), IITTM Gwalior separately to do the needful as I cannot sign any paper/document on behalf of Union of India, as I am impleaded as one of the respondents in the subject WP. This will meet the requirement of MoT as discussed.
This is for your kind information and necessary action please.
(Dr. Sandeep Kulshreshtha) Director "
33. A copy of e-mail dated 30-9-2016 sent by Kanti Prasad Gautam to Sandeep Sagnik has also been annexed in which it was mentioned that Sh. Vivek Khedkar, Assistant Soliciter General is representing UOI as well as the CVO, MoT and CBI.
34. Another e-mail sent by Sagnik Chowdhary to respondent no. 8 Sandeep Kulshreshtha dated 28-2-2017 has been annexed by which the 28 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others copy of the report of the Chief Vigilance Officer, Ministry of Tourism was forwarded to the respondent no. 8.
35. I.A. No. 4853/2018 was filed on 14-9-2018 seeking permission to amend the writ petition.
36. Certain more documents were filed on 18-9-2018 by the petitioner by document No.7940/2018. A copy of note sheet dated 27-11-2017 of MoT has also been placed on record by which it was decided that Sh. S.S. Bansal be appointed as Counsel to represent the case on behalf of respondents no.1, 2 and 9 which was approved.
37. Thereafter, on 22-10-2018, the respondents no.1 and 2 filed their reply to the application for amendment in the writ petition. It was pleaded that the Court had not advised the petitioner to amend the petition, but during the course of hearing, when the petitioner realized that he has no locus standi, therefore, he had prayed for time. The amendment application has been filed to convert the writ of mandamus to the writ of Quo Warranto after passing of more than 2 years, which is malafide and not tenable.
38. By order dated 22-10-2018, the said application was allowed and the petition was allowed to be amended and additional relief(s) were incorporated. Thus, it can be said that by amendment the nature of petition was changed to Quo Warranto.
39. On 26-10-2018, certain more documents were filed along with Document No. 9001/2018.
40. On 6-12-2018, I.A. No.6046/2018 was filed by the respondents 29 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others no. 1 and 2 for recall of order dated 22-10-2018 on the ground that the reply submitted by it was not considered.
41. Additional Return was filed by the respondents no.1 and 2 pleading that the respondent no. 2 is a registered Society and the respondent no. 8 does not come in the ambit of Public Servant. The petitioner has no locus standi. The appointment of the respondent no. 8 was made strictly in accordance with law. The petitioner was not the candidate and by misleading the Court, the petitioner has converted this petition into a petition in the nature of Quo Warranto. Initially, the petitioner had made a complaint before the Central Vigilance Commission and thereafter, the case was closed by CVC. Later on, the complaint was filed with CBI, Bhopal. Without conducting any investigation, the Bhopal office of CBI forwarded the Self Contained Note to CVO, and the CVO has also closed the matter. The allegation of undue favoritism to the respondent no. 8 was also denied. It was further pleaded that one A.R. Subramanian was another candidate for the post of Director, but since, a departmental enquiry was pending therefore, vigilance clearance was not given to Sh. A.R. Subramanian.
42. I.A. No.3782 of 2019 was filed by the petitioner in the light of liberty granted by this Court by order dated 5-8-2019.
43. By document No.7072/2019, the respondent no. 8 has filed his rejoinder to the petition. In the rejoinder, it is mentioned that the respondent no. 8 was appointed on the post of Professor (Tourism) in the year 2003 and the petitioner has challenged the order of regularization 30 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others dated 15-1-2007. The order of appointment has not been challenged by the petitioner. It is further mentioned that the respondent no. 8 was having requisite qualification for the post of Professor (Tourism). The petitioner has not filed the recruitment rules. The CVO and CVC have already considered the allegations and have rejected the same. It was further pleaded that it appears that the present petition is a sponsored petition as the issue regarding non-appointment of Mr. Subramanian has been raised. The method of filing documents along with List of Documents without there being any pleading was also criticized and it was submitted that the document no.1406/2016 deserves to be discarded. The recruitment rules requires 8 years experience of teaching to Graduate/Post Graduate Classes. The petitioner has not quoted the proceedings correctly. The petitioner has not mentioned the fact that 10 years PG Teaching Experience in Tourism was relaxed. Neither under the recruitment rules nor under the advertisement, the PG teaching experience in Tourism was required. Recruitment Rules, require Graduate/Post Graduate teaching of 8 years and in the advertisement, 10 years of experience in Post Graduate Teaching was required, hence, the contention of the petitioner runs contrary to record. Since, none of candidate was available with P.G. Experience in Tourism therefore, the candidate having 10 years PG teaching experience has been selected. It is further submitted that certain allegations have been made against K.P. Gautam, who has not been made a party to the petition. The pleadings are contrary to the record and have nothing to do with the 31 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others subject of the petition and the factum of W.P. No.3854/2012 has been concealed. I.A. No.4752/2016 cannot substitute the pleading and cannot be treated to be so. The replies given under the Right to Information Act have no concern with quo warranto petition. The matter has been closed by CVC. No mandamus can be issued for registration of F.I.R. The contentions of the petitioner are beyond the scope of quo warranto. The power of relaxation is with the BOG under Regulation 64. Document filed as Annexure P/28 cannot substitute the bye-laws and even otherwise, no relaxation in relation to essential qualification was sought. Questions cannot be asked under Right to Information Act. Document No.1406/2016 cannot be taken into consideration as it is not under the prescribed procedure and the documents cannot be filed in the said manner. It is also mentioned that the respondent no. 8 in his CV had clearly mentioned that he has taught classes of M.Com, MBA, MPA in Commerce Department, Madhav Post Graduate College and Jiwaji University. M.Com was taught at Commerce Department of Madhav College, MBA and MPA has been taught at Jiwaji University as Guest Faculty and proof thereof has already been submitted along with the return previously. The petitioner's silence about the experience certificates is required to be taken note of and instead of filing his reply to these documents, he has submitted confusing and misstatement and is trying to take advantage of certain reports which are non explanatory and without consideration of documents. No personal advice has been taken by the respondent no.8 and if the institute has taken any advice 32 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others from the ASG, then it cannot be said to be advice taken by the answering respondent. The allegations made against K.P. Gautam cannot be taken in to consideration as he has not been impleaded as a party. One writ petition No.3854 /2012 was filed by one Harnarayan Yadav seeking relief of setting aside the appointment of respondent no. 8 which was dismissed vide order Annexure C. The address of Harnarayan Yadav and that of petitioner is same and petitioner has concealed this fact, therefore, petitioner may be asked to disclose his relationship with said Harnarayan Yadav. The petitioner had previously filed W.P. No. 1405/2009 which was dismissed and the W.A. was also dismissed and the SLP was also withdrawn. The petitioner had filed one PIL bearing W.P. No.8593/2016 which has been dismissed vide order Annexure E. The petitioner has filed incomplete documents. Certain documents along with list of documents have been filed, which cannot be taken into consideration. No mandamus can be issued for registration of F.I.R. The CVC has already closed the matter.
44. This Court had requisitioned the record of W.P. No. 1405/2009 and found that it was filed by the petitioner in relation to his own service conditions and it has nothing to do with the present subject matter.
45. I.A. No. 3824/2019 has been filed by respondent no. 8 for extension of time to file the reply/rejoinder.
46. The respondents no.1 and 2 have also filed their reply to pending Interlocutory Applications filed by the petitioner and the similar stand has been taken.
33 Writ Petition No.4308/2016
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47. However, when Dr. Saurabh Dixit, OIC of the case was asked as to from where he got the copy of the writ petition No.3854/2012 and other documents filed along with the reply, then he submitted that the same have been made available by the Ministry of Tourism. When he was asked to file the copy of the covering letter, then he kept quite. Further, the copy of the W.P. No. 3854/2012 indicates, that the copy of the said W.P. which was sent to the Director, IITTM, Gwalior has been placed on record. Thus, it is clear that the copy of the petition has not been made available by MoT. It is the allegation of the petitioner, that the OICs are working under the control and administration of the respondent no. 8 and are reporting to the respondent no.8. When the Ministry of Tourism, has not provided the copy of W.P. No. 3854/2012 to the OIC, then it is clear that the OIC of the case has taken the assistance of the respondent no. 8. However, the effect of such an act would be considered at a later stage.
48. Before considering the contentions of the parties, this Court, feel it appropriate to consider the question of maintainability of this petition as well as the scope of Writ of Quo Warranto.
49. The Supreme Court in the case of All India Council for Technical Education v. Surinder Kumar Dhawan, reported in (2009) 11 SCC 726, has held as under :
17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or 34 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others enforced, with reference to or connected with education, the courts will step in. In J.P. Kulshrestha (Dr.) v. Allahabad University this Court observed: (SCC pp. 424 & 426, paras 11 & 17) "11. ... Judges must not rush in where even educationists fear to tread. ...
* * *
17. ... While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies."
18. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth this Court reiterated: (SCC pp. 56-57, para 29) "29. ... the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them."
(emphasis supplied) The Supreme Court in the case of Rajendra Kumar Chandanmal Vs. Govt. of State of M.P. and others reported in AIR 1957 MP 60, the High Court held as under :
16. As regards the first question there is no doubt that the offices of Chancellor, Vice-
Chancellor and other Officers of the University in respect of which the writ is prayed for are important offices of public nature and sought to be held under a Statute. For the issue of a writ of quo-warranto no special kind of interest in the relator is needed nor is it necessary that any of his specific legal right be infringed. It is enough for its issue that the relator is a member of the public and acts bona fide and is not a mere pawn in the game having been set up by others. If the Court is of the view that it is in the interest of the public that the legal position with respect to the alleged usurpation of an important public office should be judicially cleared, it can issue a writ of quo-warranto at the instance of any 35 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others member of the public. The authorities on this point are practically unanimous.
17. Rex v. Speyer, (1916) 1 KB 595 (A), the question related to the appointment of Mr. Speyer to the Privy Council. It was contended by Mr. F.E. Smith who appeared for him that the applicant had no personal interest to question the appointment of the respondent. This contention was negatived on the ground that the application concerned public Government and that there was no ground for impugning the motives of the relator. This case was approved by this Court in G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330 (B), in a case which was heard by a Division Bench.
18. Similar view is taken in V.D. Deshpande v.
Hyderabad State, (S) AIR 1955 Hyd 36 (C) by Misra, C.J., who observed as follows :
"The rule that no person may invoke the Court's aid in respect of a wrongful act of a public nature not affecting prejudicially the real and special interest or a specific legal right of the relator is true only so far as the issue of writs mandamus and certiorari etc., are concerned. In respect of writ quo-warranto there is no such restriction and a member of the public may challenge a public act of the State Provided he does so bona fide and is not a 'man of straw' R. v. Briggs, (1864) 11 LT 372 (D), set up by others as a mere pawn in the game and provided it is in the interest of the public that the legal position should be judicially declared once for all"
19. It therefore follows that the petition cannot be thrown out merely on the ground that the petitioner has no special interest in the matter nor on the ground that none of his special legal right is in jeopardy. The offices to which the petition relates are of public nature and are statutory and the petitioner as a member of public can move this Court to examine the validity of the claim of respondents Nos. 3, 4, 6 and 7 to the same.
The Supreme Court in the case of R.K. Jain Vs. Union of India reported in (1993) 4 SCC 119 has held as under :
74. Shri Harish Chander, admittedly was the Senior Vice-President at the relevant time. The contention of Shri Thakur of the need to evaluate the comparative merits of Mr Harish Chander and 36 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Mr Kalyansundaram a seniormost member for appointment as President would not be gone into in a public interest litigation. Only in a proceedings initiated by an aggrieved person it may be open to be considered. This writ petition is also not a writ of quo warranto. In service jurisprudence it is settled law that it is for the aggrieved person i.e. non-
appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public-spirited person.
The Supreme Court in the case of State of Punjab Vs. Salil Sabhlok and others reported in (2013) 5 SCC 1 has held as under :
Findings of the Court
25. The first question that I have to decide is whether the High Court was right in entertaining the writ petition as a public interest litigation at the instance of Respondent 1.
26. I have perused the writ petition CWP No. 11846 of 2011, which was filed before the High Court by Respondent 1, and I find that in the first paragraph of the writ petition Respondent 1 has stated that he was a public-spirited person and that he had filed the writ petition for espousing the public interest and for the betterment of citizens of the State of Punjab. In the writ petition, Respondent 1 has relied on the provisions of Articles 315, 316, 317, 318, 319 and 320 of the Constitution relating to Public Service Commissions to contend that the functions of the Public Service Commission are sensitive and important and it is very essential that a person, who is appointed as the Chairman of the Public Service Commission, must possess outstanding and high degree educational qualifications and a great amount of experience in the field of selection, administration and recruitment and he must also be a man of integrity and impartiality. Respondent 1 has alleged in the writ petition that the State Government has not laid down any qualification for appointment to the post of Chairman of the Punjab Public Service Commission and is continuing to appoint persons to the post of Chairman of the Public Service Commission on the basis of political affiliation.37 Writ Petition No.4308/2016
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27. In the writ petition, Respondent 1 has also given the example of Mr Ravi Pal Singh Sidhu, who was appointed as the Chairman, Punjab Public Service Commission on the basis of political affiliation and the result was that during his period as the Chairman of the Punjab Public Service Commission, several cases of undeserving candidates being selected and appointed to the Public Service Commission in the State of Punjab came to light and investigations were carried out leading to filing of various criminal cases against the officials of the Public Service Commission as well Mr Sidhu.
28. Respondent 1 has further stated in the writ petition that he has filed the writ petition after he read a news report titled "MLA Dhanda to be new PPSC Chairperson". He has stated in the writ petition that Mr Harish Dhanda was an advocate at Ludhiana before he ventured into politics and had unsuccessfully contested the Vidhan Sabha election before he was elected as MLA on the Shiromani Akali Dal ticket and that he had close political affiliation and affinity with high-ups of the ruling party and that the ruling party in the State of Punjab has cleared his name for appointment as the Chairman of the Punjab Public Service Commission shortly. Respondent 1 has also alleged in the writ petition various irregularities and illegalities committed by Mr Harish Dhanda. He has further stated in the writ petition that his colleague has even sent a representation to the Governor of Punjab and the Chief Minister of Punjab against the proposed appointment of Mr Harish Dhanda. He has accordingly prayed in the writ petition for a mandamus to the State of Punjab to frame regulations governing the conditions of service and appointment of the Chairman and Members of the Punjab Public Service Commission and for an order restraining the State of Punjab from appointing Mr Harish Dhanda as Chairman of the Punjab Public Service Commission.
29. On a reading of the entire writ petition filed by Respondent 1 before the High Court, I have no doubt that Respondent 1 has filed this writ petition for espousing the cause of the general public of the State of Punjab with a view to ensure that a person appointed as the Chairman of the Punjab Public Service Commission is a man of ability and 38 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others integrity so that recruitment to public services in the State of Punjab are from the best available talents and are fair and is not influenced by politics and extraneous considerations. Considering the averments in the writ petition, I cannot hold that the writ petition is just a service matter in which only the aggrieved party has the locus to initiate a legal action in the court of law. The writ petition is a matter affecting interest of the general public in the State of Punjab and any member of the public could espouse the cause of the general public so long as his bona fides are not in doubt. Therefore, I do not accept the submission of Mr P.P. Rao, learned Senior Counsel appearing for the State of Punjab, that the writ petition was a service matter and the High Court was not right in entertaining the writ petition as a public interest litigation at the instance of Respondent 1. The decisions cited by Mr Rao were in cases where this Court found that the nature of the matter before the Court was essentially a service matter and this Court accordingly held that in such service matters, the aggrieved party, and not any third party, can only initiate a legal action.
* * * *
86. About twenty years ago, in a case relating to the appointment of the President of a statutory tribunal, this Court held in R.K. Jain v. Union of India that an aggrieved person--a "non-
appointee"--would alone have the locus standi to challenge the offending action. A third party could seek a remedy only through a public law declaration. This is what was held: (SCC p. 174, para 74) "74. ... In service jurisprudence it is settled law that it is for the aggrieved person i.e. non- appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public- spirited person."
This view was reiterated in B. Srinivasa Reddy. Therefore, assuming the appointment of the Chairperson of a Public Service Commission is a "service matter", a third party and a complete stranger such as the writ petitioner cannot approach an Administrative Tribunal to challenge the 39 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others appointment of Mr Dhanda as Chairperson of the Punjab Public Service Commission.
87. However, as an aggrieved person he or she does have a public law remedy. But in a service matter the only available remedy is to ask for a writ of quo warranto. This is the opinion expressed by this Court in several cases. One of the more recent decisions in this context is Hari Bansh Lal wherein it was held that: (SCC p. 661, para 15) "15. ... except for a writ of quo warranto, public interest litigation is not maintainable in service matters."
This view was referred to (and not disagreed with) in Girjesh Shrivastava v. State of M.P. after referring to and relying on Duryodhan Sahu v. Jitendra Kumar Mishra, B. Srinivasa Reddy, Dattaraj Nathuji Thaware v. State of Maharashtra, Ashok Kumar Pandey v. State of W.B. and Hari Bansh Lal.
88. The significance of these decisions is that they prohibit a PIL in a service matter, except for the purposes of a writ of quo warranto.....................
89. However, in a unique situation like the present, where a writ of quo warranto may not be issued, it becomes necessary to mould the relief so that an aggrieved person is not left without any remedy, in the public interest. This Court has, therefore, fashioned a writ of declaration to deal with such cases. Way back, in T.C. Basappa v. T. Nagappa it was said: (AIR p. 443, para 6) "6. The language used in Articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions of our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges."
90. More recently, such a writ was issued by this Court in Kumar Padma Prasad v. Union of India 40 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others when this Court declared that Mr K.N. Srivastava was not qualified to be appointed as a Judge of the Gauhati High Court even after a warrant for his appointment was issued by the President under his hand and seal. This Court, therefore, directed: (SCC p. 457, para 41) "41. As a consequence, we quash his appointment as a Judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India to K.N. Srivastava. We further restrain K.N. Srivastava from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of the High Court."
91. Similarly, in N. Kannadasan v. Ajoy Khose, this Court held that Justice N. Kannadasan (retired) was ineligible to hold the post of the President of the State Consumer Redressal Forum. It was then concluded: (SCC p. 68, para 163) "163. ... (ii) The superior courts may not only issue a writ of quo warranto but also a writ in the nature of quo warranto. It is also entitled to issue a writ of declaration which would achieve the same purpose."
92. Finally and even more recently, in Centre for PIL v. Union of India, the recommendation of a High-Powered Committee recommending the appointment of Mr P.J. Thomas as the Central Vigilance Commissioner under the proviso to Section 4(1) of the Central Vigilance Commission Act, 2003 was held to be non est in law and his appointment as the Central Vigilance Commissioner was quashed. This Court opined: (SCC p. 25, para
53) "53. At the outset it may be stated that in the main writ petition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper in the facts and circumstances of this case. Thus, nothing prevents this Court, if so satisfied, from issuing a writ of declaration."
The Supreme Court in the case of B. Srinivasa Reddy Vs. 41 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Karnataka Urban Water Supply & Drainage Board Employee's Association reported in (2006) 11 SCC 731 has held as under :
49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.
* * * *
51. It is settled law by a catena of decisions that the court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered. It was also held that in service jurisprudence it is settled law that it is for the aggrieved person, that is, the non-appointee to assail the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that public law declaration would only be made at the behest of a public-spirited person coming before the court as a petitioner. Having regard to the fact that neither Respondents 1 and 2 were or could have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of quo warranto so very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings brought before the Court by an aggrieved party who was a candidate for the post.
The Supreme Court in the case of The University of Mysore and another Vs. C.D. Govinda Rao and another reported in (1964) 4 SCR 575 has held as under :
42 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others
6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings.
As Halsbury has observed:
"An information in the nature of a quo warranto took the place of the obsolate writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined."
Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons, not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
43 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others The Supreme Court in the case of Central Electricity Supply Utility of Odisha Vs. Dhobei Sahoo and others reported in (2014) 1 SCC 161 has held as under :
21. From the aforesaid exposition of law it is clear as noonday that the jurisdiction of the High Court while issuing a writ of quo warranto is a limited one and can only be issued when the person holding the public office lacks the eligibility criteria or when the appointment is contrary to the statutory rules. That apart, the concept of locus standi which is strictly applicable to service jurisprudence for the purpose of canvassing the legality or correctness of the action should not be allowed to have any entry, for such allowance is likely to exceed the limits of quo warranto which is impermissible. The basic purpose of a writ of quo warranto is to confer jurisdiction on the constitutional courts to see that a public office is not held by usurper without any legal authority.
22. While dealing with the writ of quo warranto another aspect has to be kept in view. Sometimes a contention is raised pertaining to doctrine of delay and laches in filing a writ of quo warranto. There is a difference pertaining to personal interest or individual interest on the one hand and an interest by a citizen as a relator to the Court on the other.
The principle of doctrine of delay and laches should not be allowed any play because the person holds the public office as a usurper and such continuance is to be prevented by the Court. The Court is required to see that the larger public interest and the basic concept pertaining to good governance are not thrown to the winds.
The Supreme Court in the case of Rajesh Awasthi Vs. Nandlal Jaiswal and others reported in (2013) 1 SCC 501 has held as under :
19. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop.
Transport Society Ltd. v. Govt. of Haryana held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy, this Court has reiterated the 44 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bansh Lal wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy itself that the appointment is contrary to the statutory rules.
* * * *
29. In B.R. Kapur v. State of T.N., in the concurring opinion Brijesh Kumar, J., while dealing with the concept of writ of quo warranto, has referred to a passage from Words and Phrases, Permanent Edn., Vol. 35, at p. 647, which is reproduced below: (SCC p. 316, para 80) "80. ... 'The writ of "quo warranto" is not a substitute for mandamus or injunction nor for an appeal or writ of error, and is not to be used to prevent an improper exercise of power lawfully possessed, and its purpose is solely to prevent an officer or corporation or persons purporting to act as such from usurping a power which they do not have. State ex inf McKittrick v. Murphy, SW 2d pp. 529-30.
Information in the nature of "quo warranto"
does not command performance of official functions by any officer to whom it may run, since it is not directed to officer as such, but to person holding office or exercising franchise, and not for purpose of dictating or prescribing official duties, but only to ascertain whether he is rightfully entitled to exercise functions claimed. State ex Inf Walsh v. Thatcher, SW 2d p. 938.'"
(emphasis in original)
30. In University of Mysore v. C.D. Govinda Rao, while dealing with the nature of the writ of quo warranto, Gajendragadkar, J. has stated thus: (AIR p. 494, para 7) "7. ... Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has 45 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."
31. From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Kashinath G. Jalmi v. Speaker.
32. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat it has been laid down by this Court that a writ of quo warranto can be issued when there is violation of statutory provisions/rules. The said principle has been reiterated in Retd. Armed Forces Medical Assn. v. Union of India.
33. In Centre for PIL v. Union of India a three-
Judge Bench, after referring to the decision in R.K. Jain v. Union of India, has opined thus: (Centre for 46 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others PIL case, SCC p. 29, para 64) "64. Even in R.K. Jain case, this Court observed vide para 73 that judicial review is concerned with whether the incumbent possessed qualifications for the appointment and the manner in which the appointment came to be made or whether the procedure adopted was fair, just and reasonable. We reiterate that the Government is not accountable to the courts for the choice made but the Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction.
(emphasis in original) It is also worth noting that in the said case a view has been expressed that the judicial determination can be confined to the integrity of the decision- making process in terms of the statutory provisions. The Supreme Court in the case of High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, reported in (2003) 4 SCC 712 has held as under :
22. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one.
While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 74.)
23. A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Financial Commr. & Secy. to Govt. of Haryana.) The Supreme Court in the case of Centre for PIL v. Union of India, reported in (2011) 4 SCC 1 has held as under : 47 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others
51. The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions. Before a citizen can claim a writ of quo warranto he must satisfy the court inter alia that the office in question is a public office and it is held by a person without legal authority and that leads to the inquiry as to whether the appointment of the said person has been in accordance with law or not. A writ of quo warranto is issued to prevent a continued exercise of unlawful authority.
The Supreme Court in the case of Mahesh Chandra Gupta v. Union of India, reported in (2009) 8 SCC 273, has held as under :
39. At this stage, we may state that, there is a basic difference between "eligibility" and "suitability".
The process of judging the fitness of a person to be appointed as a High Court Judge falls in the realm of suitability. Similarly, the process of consultation falls in the realm of suitability. On the other hand, eligibility at the threshold stage comes under Article 217(2)(b). This dichotomy between suitability and eligibility finds place in Article 217(1) in juxtaposition to Article 217(2). The word "consultation" finds place in Article 217(1) whereas the word "qualify" finds place in Article 217(2).
40. This dichotomy is succinctly brought out in Constitutional Law of India by H.M. Seervai, 4th Edn., at p. 2729, which is quoted hereinbelow:
"From Article 217(1) as enacted in 1950 the following things are clear. First, Article 217(1) provided for the appointment of only permanent High Court Judges. They were permanent in the sense that they continued to hold their office till they attained the age of 60 years. They were not 'permanent' as opposed to Additional Judges who held office for a period not exceeding 2 years, because in 1950 our Constitution did not provide for Additional Judges. Secondly, Article 217(2) prescribed the qualifications which a person must possess before he could be appointed a High Court Judge. Thirdly, Article 217(1) provided the procedure to be followed before a person was 48 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others appointed a High Court Judge. That procedure was designed to test the fitness of a person to be appointed a High Court Judge: his character, his integrity, and his competence in various branches of the law, and the like. In recruiting a person from the Bar, his experience in different kinds of litigation would also be taken into account. The thing to note is that Article 217(1) provides for a once for all test* of a person's fitness to be a High Court Judge. A person who has passed that test is subject to no other test of fitness but will continue to hold his office till he attains the age of retirement which had been fixed at 60 years till 1963. But once appointed, his performance on the Bench may be good, bad or indifferent. His judgments and orders may be subject to appeal in the High Court, and are certainly subject to appeal to the Supreme Court under Article 136, if not under other articles of Chapter IV of Part VI."
The Supreme Court in the case of Renu and others Vs. district and Sessions Judge, Tis Hazari Courts, Delhi and another reported in (2014) 14 SCC 50 has held as under :
15. Where any such appointments are made, they can be challenged in the court of law. The quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office who might be allowed to continue either with the connivance of the executive or by reason of its apathy. It will, thus, be seen that 49 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others before a person can effectively claim a writ of quo warranto, he has to satisfy the court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statutory rules and the person holding the post has no right to hold it.
(Vide University of Mysore v. C.D. Govinda Rao, Kumar Padma Prasad v. Union of India, B.R. Kapur v. State of T.N., Mor Modern Coop.
Transport Society Ltd. v. State of Haryana, Arun Singh v. State of Bihar, Hari Bansh Lal v. Sahodar Prasad Mahto and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo.)
16. Another important requirement of public appointment is that of transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.
50. Thus, it is clear that in educational matters, the Court should not step in the educational policies and should interfere only when any provision of law is to be interpreted. Further, while considering the writ of Quo Warranto, this Court can consider the "Eligibility" of a Candidate, but cannot consider the "Suitability" of the Candidate. However, the public appointment should be transparent and the advertisement must specify the number of posts available, eligibility criteria and schedule of recruitment process be also published. Further 50 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others the writ of Quo Warranto cannot be dismissed on the ground of delay and laches. To maintain the writ of Quo Warranto, it is not required, that the petitioner should be one of the candidate to the recruitment process. A writ of Quo Warranto can be issued, if the public appointment is contrary to statutory provisions. Sometimes, the malafides may encroach upon the question of "Suitability". Therefore, the manner in which the appointment was made and the procedure which was adopted, can also be considered while considering the Writ of Quo Warranto.
51. Thus, the preliminary objections raised by the respondents shall be taken into consideration before proceedings further with the matter.
Whether the respondent no. 8 is a Public-Servant being the employee of IITTM-Gwalior, which according to the respondents is a registered Society?
52. Although no document has been filed to show that IITTM is a registered Society. Even if it is accepted, then it is clear that it is under the control of the Ministry of Tourism. The Supreme Court in the case of Govt. of A.P. Vs. P. Venku Reddy reported in (2002) 7 SCC 631 has held as under :
4. The High Court by the impugned order quashed the criminal case pending against Respondent 1 under the 1988 Act on the sole ground that the accused is not a "public servant" as defined in sub-
clause (ix) of clause (c) of Section 2 of the 1988 Act. In the opinion of the High Court, the definition contained in sub-clause (ix) of clause (c) of Section 2 of the 1988 Act covers only President, Secretary and other office-bearers of a registered cooperative society engaged amongst other businesses in banking. Section 2 of the 1988 Act with the relevant clause (c) and sub-clauses (iii) and (ix) read as 51 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others under:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(a)-(b) * * *
(c) 'public servant' means--
(i)-(ii)* * *
(iii) any person in the service or pay of a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);
(iv)-(viii)* * *
(ix) any person who is the president, secretary or other office-bearer of a registered cooperative society engaged in agriculture, industry, trade or banking, receiving or having received any financial aid from the Central Government or a State Government or from any corporation established by or under a Central, Provincial or State Act, or any authority or body owned or controlled or aided by the Government or a government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956);"
(emphasis supplied)
5. The learned counsel appearing for the State and the District Cooperative Central Bank Limited, Nellore submit that the definition of "public servant" in clause (c) of Section 2 of the 1988 Act is very wide and the respondent-accused who is employed as Supervisor in the District Cooperative Central Bank Limited which is "an authority or a body owned or controlled or aided by the Government" in terms of sub-clause (iii) of clause
(c) of Section 2 of the 1988 Act, clearly falls within the definition of "public servant".
6. On the other hand, learned counsel appearing for the respondent-accused, who supports the impugned judgment of the High Court by placing reliance on the decisions of the Supreme Court in the cases of State of Gujarat v. Patel Ramjibhai Danabhai1 and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth2 contends that on comparative reading of sub- clauses (iii) and (ix) of clause (c) of Section 2 of the 1988 Act, the principle of interpretation generalia 52 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others specialibus non derogant would apply. There being a special provision in sub-clause (ix) which covers only certain holders of offices of the specified cooperative societies, and does not include other employees of such societies, the general provision contained in sub-clause (iii) of clause (c) of Section 2 of the 1988 Act shall have no application. It is argued that the special provision in sub-clause (ix) shall exclude the general provision in sub-clause
(iii).
7. After hearing the learned counsel appearing for the parties, our conclusion is that the High Court is clearly in error in relying on sub-clause (ix) and overlooking sub-clause (iii) of clause (c) of Section 2 of the 1988 Act for quashing the proceedings on the ground that the respondent-accused is not covered by the definition of "public servant".
8. From the abovequoted sub-clause (ix) of clause
(c) of Section 2 of the 1988 Act, it is evident that in the expansive definition of "public servant", elected office-bearers with the President and Secretary of a registered cooperative society which is engaged in trade amongst others in "banking" and "receiving or having received any financial aid" from the Central or State Government, are included although such elected office-bearers are not servants in employment of the cooperative societies. But employees or servants of a cooperative society which is controlled or aided by the Government, are covered by sub-clause (iii) of clause (c) of Section 2 of the 1988 Act. Merely because such employees of cooperative societies are not covered by sub-clause
(ix) along with holders of elective offices, the High Court ought not to have overlooked that the respondent, who is admittedly an employee of a cooperative bank which is controlled and aided by the Government, is covered within the comprehensive definition of "public servant" as contained in sub-clause (iii) of clause (c) of Section 2 of the 1988 Act. It is not disputed that the respondent-accused is in service of a cooperative Central bank which is an "authority or body"
controlled and aided by the Government.
Thus, it is clear that although the respondent no. 8 might be an employee of a registered society, but since, the IITTM-Gwalior is under 53 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others the control of the Central Govt., therefore, he is certainly a Public Servant. Furthermore, the CBI had raised eyebrows against other officers of Central Govt. Therefore, it is held that since, the respondent no. 8 and other employees of the Central Govt., who may be involved in the present case are public Servants, therefore, the CBI had jurisdiction to investigate the case.
Locus Standi of the petitioner
53. As already observed, a Writ of Quo Warranto can be maintained by any citizen of the Country, therefore, the concept of Locus Standi has no application to the writ of Quo Warranto. Thus, the objection raised by the respondents, that since, the petitioner was not the candidate for the post of Professor (Tourism), therefore, he has no locus standi to file this petition, is hereby rejected.
Delay in filing this petition
54. It is submitted by the Counsel for the respondents that there is an inordinate delay in filing this petition. The Supreme Court in the case of Rajesh Awasthi (Supra) has held that delay and laches do not constitute any impediment to consider the lis. Therefore, the objection with regard to delay and laches is also rejected.
Order of appointment of the respondent no. 8 to the post of Professor (Tourism) has not been challenged
55. It is submitted by the Counsel for the respondents 1, 2, 8 and 9 that since, the petitioner has not challenged the order of appointment of the respondent no. 8 to the post of Professor (Tourism), therefore, this 54 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others petition is not maintainable. The petitioner has challenged the order of Regularization dated 15th January 2007 to the post of Professor (Tourism) (Annexure P/6). Neither, the respondents no. 1, 2 and 9 nor the respondent no. 8 has filed the order of appointment of the respondent no. 8 on the post of Professor (Tourism). Thus, when the respondents no. 1, 2, 8 and 9 who could have placed the order of appointment on record, have failed to do so, then it is clear that if the petitioner could not place the order of appointment of the respondent no. 8 on record, would not make much difference.
56. Further, the documents which have been provided by the Counsel for the respondents no. 1 and 2 contain the appointment order of the respondent no. 8, dated September 30, 2003, which reads as under :
"Sub: Offer of appointment for the post of Professor in Tourism Dear Sir, With reference to your application and the subsequent interview held on 4 th July 2003, for the post of Professor in Tourism at IITTM-Gwalior, Institute is happy to offer you appointment as Professor in Tourism in the pay scale of Rs. 16400- 450-20900-500-26400. Your initial basic pay will be Rs. 16400/-. Besides this, you will be entitled for other allowances admissible under rules of the Institute from time to time.
2. The above appointment will be subject to the following terms and conditions :-
(a) The appointment is purely on temporary basis and will not confer any title to permanent employment.
(b) You will be on probation for two years. The appointment may be terminated at any time by a month's notice given by either side or by paying one month's salary in lieu thereof. The appointing 55 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others authority, however, reserves the right of terminating your services at any time without assigning any reason during the period of probation.
(c)..........
(d).............
(e) You will be given written confirmation on satisfactory completion of your probation period.
However, it should be clearly understood that you will be deemed to have been confirmed in teh post only when your are so intiated in writing.
(f)..............
(g)............
(h).............
(i)...............
(j)...........
(k) If there is any concealment of any information or if any information furnished by you at the time of appointment proves to be false, your services shall be liable for termination, without notice and Institute may take any such other action as deemed fit.
(I)............
3. Your appointment will be further subject to the following :-
a)........
b).......
c)Production of following original certificates/attested copies of certificates at the time of your reporting for duty.
i).........
ii)........
iii).......
iv).......
v)........
4. ........
5. ........
6. ........
7. ........"
57. Thus, it is clear from the order of appointment on the post of Professor (Tourism), that the initial appointment of the respondent no. 8 was purely on temporary basis and unless and until, the order of confirmation is issued, the respondent no. 8 was to continue to remain on probation period. It is the case of the parties, that the respondent no. 8 56 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others was regularized on the post of Professor (Tourism) by order dated 15 th January 2007 and the order dated 15 th January 2007, has been challenged. It can be safely said that the order of initial appointment of the respondent no. 8 on the post of Professor (Tourism), had merged in the order of regularization on the post of Professor (Tourism). Since, the order dated 15th January 2007, by which the respondent no. 8 was regularized on the post of Professor (Tourism) has been challenged, therefore, this petition cannot be thrown overboard only on the technical ground that the initial order of appointment of the respondent no. 8 has not been challenged. Further, in a writ of quo warranto, the challenge is to the appointment of a respondent to the public post on the ground of eligibility. Therefore, the question of eligibility of the respondent no. 8 to hold the post of Professor (Tourism) is important. Thus, this objection is rejected.
Two Selection Committees were constituted on 24-2-2003 and what are the reasons for the same
58. It is the contention of the Petitioner, that two Selection Committees were constituted on 24-2-2003, whereas it is the stand of the respondents no. 1 and 2, that the Selection Committee constituted under the chairpersonship of Ms. Rathi Vinay Jha, Secretary (T) was the only Selection Committee and the minutes which have been placed as Annexure P/7 are only draft. However, it is the stand of the CBI that the respondents could not explain the reasons for constituting two Selection Committees on one day i.e., 24-2-2003.
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59. Considered the submissions made by the Counsel for the parties.
60. Annexure P/7 and P/8 are the minutes of two Selection Committees dated 24-2-2003.
Minutes of the Selection Committee Meeting Dated 24-2-2003 (Annexure P/7) reads as under :
"Selection Committee met on 24-2-2003, under the chairmanship of Mrs. Rashmi Verma ADG, Dept. Of Tourism at conference Hall, New Delhi for interviewing candidates for one post of Professor in Tourism. The following were present :
1. Prof. Kapil Kumar, Subject Expert
2. Dr. Ravi Bhoothalilngam, Subject Expert
3. Mr. D. Singhal, Director, IITTM Committee interviewed 5 candidates for the post of Professor and also considered request of two candidates being considered inabsentia.
Based on their academic record, earlier background, experience and performance, the selection committee unanimously recommeded that the qualification of 10 years post graduate experience may be waived since none of the applicants has 10 years PG experience in Tourism. Committee didnot find any of the candidates interviewed suitable for the post. The Committee decided that the applicants wh o had requested for consideration inabsentia, may be called for an interview on a subsequent date in continuation of today's interview.
Not signed Singed Signed
Signed
(Rashmi Verma)(D. Singhai) (Kapil Kumar) (Ravi Bhoothalilngam)"
Minutes of Selection Committee dated 24-2-2003, filed as Annexure P/8 reads as under :
"INDIAN INSTITUTE OF TOURISM AND TRAVEL MANAGEMENT, GWALIOR 58 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Minutes of the Selection Committee meeting dated 24-2-2003 Selection Committee met on 24 th february 2003 under the chairmanship of Mrs. Rathi Vinay Jha, Secretary (Tourism) at Conference Hall, New Delhi for interviewing candidates for 1 post of Professor in Tourism. The following were present :
1. Mrs. Rashmi Verma, ADG, Deptt. Of Tourism, Nominee
2. Prof. Kapil Kumar, Subject Expert
3. Dr. Ravi Bhoothalilngam, Subject Expert
4. Mr. D. Singhal, Director, IITTM Committee interviewed five candidates for the post of Professor and also considered the request of two candidates being considered inabsentia.
Based on their academic record, earlier background, experience and performance, the Selection Committee unanimously recommended that the qualification of 10 year post graduate, experience may be waived since none of the applicants has 10 years PG experience in tourism. Committee didnot find any of hte candidate nterviewed suitable for the post. The Committee decided that the applicants who had requested for consideration in absentia, may be called for an interview on a subsequent date in contnuation of today's interview.
Not signed Signed Signed
Rathi Vinay Jha Rashmi Verma D.Singhai
Secretary (T)&Chairperson Addl. DG(T) Director (IITTM)
Signed Signed
Prof. Kapil Kumar Dr. R. Bhoothalilngam
Subject Expert Subject Expert"
61. It is the contention of the respondents no. 1 and 2 that the minutes of Selection Committee dated 24-2-2003 (Annexure P/7) are nothing but a draft of minutes of Selection Committee dated 24-2-2003 (Annexure P/8). The contention of the respondents no. 1 and 2 is considered. What was the need of preparing a draft of minutes of meeting has not been explained. The minutes of the meeting are always drawn after the 59 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others meeting is over. If the contention of the respondents no.1 and 2 is accepted that minutes of meeting dated 24-2-2003, filed as Annexure P/7 are the draft, then it is clear that the meeting of Selection Committee which have been filed as Annexure P/8 is nothing but a farce because everything was already pre-decided. Further, the minutes of meeting dated 24-2-2003 clearly mentions that 5 candidates were interviewed and they were not found suitable. Further, it also mentions that the qualification of 10 years of teaching PG classes be also waived. Thus, according to the respondents no.1 and 2, everything was already pre-
decided before holding of meeting of Selection Committee dated 24-2- 2003 (Annexure P/8) including the rejection of the candidature of 5 candidates as well as to waive the qualification. Further, it is not the case of any of the respondents that the Selection Committee had any authority to waive the PG teaching experience. However, both the Selection Committees while waiving the 10 years PG experience, also rejected the candidature of 5 candidates. If the Selection Committees were of the view that the requirement of 10 years PG experience should be waived, then instead of proceeding further with the interview, it should have taken further instructions from the BoG. However, that was not done, and without any authority, the Selection Committees in its meetings dated 24-2-2003, not only waived the requirement of 10 years PG experience but also rejected the candidature of 5 candidates.
Therefore, the decision taken by the Selection Committee dated 24-2- 2003, which have been filed as Annexure P/8 are liable to be quashed on 60 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others the basis of stand taken by the respondents no. 1 and 2 only.
62. Further, this stand is nothing but an afterthought. In the "Self Contained Note" of CBI, a finding has been recorded by the CBI that in fact two Selection Committee met on the same day i.e., 24-2-2003-one under the Chairmanship of Secretary (T) and another under the Chairmanship of the then ADG(T). Since, the respondents no. 1 and 2 have failed to explain as to why two Selection Committees were constituted for the same purpose on the same day i.e., 24-2-2003, therefore, it appears that in fact the minutes of both the Selection Committees dated 24-2-2003 have been fraudulently prepared.
Surprisingly, the chairperson of both the Selection Committees held on 24-2-2003 have not signed the minutes. Not only that, it appears from the minutes of both the Selection Committees dated 24-2-2003, in fact the chairpersons were also not present. It appears from the minutes of selection committee dated 24-2-2003 which has been filed as Annexure P/7, only the Subject Experts and Director of IITTM were present and the Chairperson Smt. Rashmi Verma was not present. Then why it was mentioned in the minutes of the said Selection Committee, that the meeting was held under the Chairpersonship of Mrs. Rashmi Verma and how the Subject Experts and Director of IITTM on their own, can waive the requirement of 10 years PG experience and can reject the candidature of 5 candidates. When the Selection Committee was not competent to waive any qualification, then why the interviews of 5 candidates was taken and on what basis, all the 5 candidates were declared unfit?61 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others Similarly, the Second meeting of the Selection Committee dated 24-2- 2003 was held under the Chairpersonship of Mrs. Rathi Vinay Jha, but she was not present, then why it was mentioned that the meeting of the Selection Committee was held under the chairmanship of Mrs. Rathi Vinay Jha? Further, why the interview of 5 candidates was taken by both the Selection Committees? Why, the minutes of both the Selection Committees dated 24-2-2003 are verbatim the same? It has also not been clarified by the respondents no.1 and 2 that why the request for consideration in absentia made by two persons, including the respondent no. 8 was accepted? Once, the candidates were directed to appear before the Selection Committee, then why special treatment was given to the respondent no.8 by accepting his request for his consideration in absentia? Further, the CBI in its self contained note had specifically mentioned as under :
" It may be mentioned here that there were two sets of Minutes of Selection Committee Meeting dated 24-2-2003 for the selection of Professor, IITTM. One Selection Committee met under the Chairmanship of Mrs. Rashmi Verma, the then ADG (T) on 24-2-2003 at Conference Hall, Deptt. Of Tourism, New Delhi and another Selection Committee met on the same date and venue under the Chairmanship of Mrs. Rathi Vinay Jha, Secretary (Tourism). However, signatures of Mrs. Verma are not available on the first Minutes and similarly signatures of Mrs. Rathi Vinay Jha are not available on the second Minutes. The Ministry of Tourism is unable to explain about non-availability of signatures of the then Secretary (Tourism) on the Minutes of the Selection Committee dated 24-2-2003."
63. Thus, it is clear that the respondents have failed to explain as to 62 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others why two Selection Committees were held on 24-2-2003 and why the minutes of both the Selection Committees were not signed by the Chairperson, and when the Chairperson was not present, then how it can be mentioned in the minutes that the meeting of the Selection Committee(s) dated 24-2-2003 were held under the Chairpersonship of Mrs. Rashmi Verma and Mrs. Vinay Rathi Jha, respectively. Further, these Committees had rejected all the five candidates who had appeared for interview and the request for participation in absentia was accepted. Further, a recommendation was made to waive the requirement of 10 years experience of teaching Post Graduate Classes. Further, so far as the stand of the respondents that since, the Secretary (Tourism) had approved the appointment of the respondent no. 8, therefore, the non- signing the minutes of Selection Committee held on 24-2-2003 loses its effect is concerned, it is suffice to mention that according to the respondents, the name of the respondent no. 8 was recommended by the Selection Committee held on 4-7-2003. Thus, it cannot be said that by approving the appointment of the respondent no. 8, the Secretary (Tourism) had validated the minutes of meeting dated 24-2-2003 in which the candidature of 5 candidates were rejected and not only a decision was taken to waive the requirement of 10 years PG experience, but even the candidates were interviewed after waiving the requirement of 10 years PG experience.
64. As per the interview call letters issued to the candidates, the interview was to be held on 24-2-2003 at 3:30 P.M.. It is beyond 63 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others conciliation that why two selection committees were constituted and why both the selection committees had interviewed the candidates? At what time the interviews were held is also not explained.
65. Further, the CVC by its communique dated 10-2-2014 had informed the MoT, that "the Commission advises CVO, Ministry of Tourism to examine the information given by Shri Kulshreshtha in his curriculum-vitae and take action as deemed fit, subject to above the Commission allows the matter rest." From note sheets forming part of documents supplied in sealed cover, it appears that the comparative chart was prepared indicating points raised in the letter, comments of IITTM and Ministry's views on the point. For Point No.3 which was in relation to the query raised by the Prime Ministers Office with regard to the qualification of respondent no. 8, the following was the Ministry's view :
"All the paper provided by Dr. Kulshreshtha has been scrutinized. It reveals that he did not teach MBA/MPA Classes in Madhav College and the contention of Shri Yadav is correct. He had taken some classes of MBA/MPA in Jiwaji Univesity and that too as guest faculty for some specific periods and not from 1991-1997 as claimed by him in his application for the post of Professor. The Certificates provided by him would not stand legal scrutiny in Court of Law, if challenged, as it doesnot substantiate his claim of teaching MBA/M PA Classes in Madhav College."
The Ministry's view to the letter dated 25-6-2014 written by the Petitioner is as under :
"As explained above, the contention of Dr. Kulshreshtha would not stand judicial scrutiny. RTI information with Shri Yadav that MBA/MPA classes have not been conducted in Madhav College till date."64 Writ Petition No.4308/2016
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66. Therefore, the entire selection process is prima facie vitiated, however, the effect of holding meetings by two different Selection Committees on the same date i.e., 24-2-2003 and making a note that the candidates were interviewed and the stand taken by the respondents no. 1 and 2 that the minutes of Selection Committee dated 24-2-2003 filed as Annexure P/7 are merely draft and the effect of such a stand, would be considered at a later stage cumulatively along with other circumstances.
Whether the Board of Governors had waived the minimum qualification of 10 years Post Graduate Experience?
67. The Counsel for the respondents no. 1 and 2, in his reply to the query raised by the Court, has submitted that under the Recruitment Rules, the Board of Governor has no power to waive the minimum qualification and Regulation 64 of Indian Institute of Tourism and Travel Management (Services) Bye-laws does not apply.
68. However, it is submitted by the Counsel for the respondents no. 1 and 2 that the Board of Governors, in its meeting dated 21-7-2003 had waived the minimum qualification of 10 years post-graduate experience.
69. The submission made by the Counsel for the respondents no.1 and 2 is misconceived and contrary to record.
70. It is not out of place to mention here that according to the respondents, the candidature of the respondent no. 8 was considered by the Selection Committee which was held on 4-7-2003 and had recommended that the respondent no. 8 may be appointed on the post of Professor (Tourism). However, the copy of the minutes of Selection 65 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Committee held on 4-7-2003 have not been placed on record. When a specific question was put to Shri S.S. Bansal, Counsel for respondents no.1 and 2 as to why the minutes of Selection Committee held on 4-7- 2003 have not been placed on record, then he fairly conceded that the said minutes are not on record. However, he submitted that since, certain documents have been filed in a sealed cover, therefore, the minutes of Selection Committee held on 4-7-2003 might be in the sealed cover. The sealed cover was in a torn condition which was repaired by putting tape. However, on opening, it is found that the minutes of Selection Committee dated 4-7-2003 are not there. Thus, it is clear that the minutes of the Selection Committee dated 4-7-2003 are not on record and therefore, either it has been deliberately suppressed by the respondents no. 1, 2 and 9 or the minutes of meeting of Selection Committee held on 4th July 2003 are not in existence all.
71. However, in order to substantiate that the condition of qualification of 10 years post graduate experience was waived by the Board of Governors, the Counsel for the respondents no. 1 and 2 have relied upon the Suppl. Agenda Item No. 3 which reads as under :
"Appointment of Professor in Tourism at IITTM, Gwalior One post of Professor in Tourism at Gwalior fall vacant consequent upon the reversion of Prof. G. Krishna Ranga Rao on 30 th September 2001. As per the decision taken in the 25 th meeting of the Board of Governors, appointment of Dr. Amitabh Upadhyaya for the post of Professor was not approved and it was decided to re-advertise the post. Accordingly, the post of Professor in Tourism was re-advertised. Selection Committtee interviewed 5 candidates for the post of Professor on 24 th February 2003 and also considered request of 2 candidates 66 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others being considered inabsentia. Based on their academic record, earlier background and other considerations, selection committee unanimously recommended that the qualifcation of 10 y ears post- graduate experince may be waived since none of the applicants has 10 years PG experience in tourism. Committee also didnot fine any of the applicants interviewed suitable for the post.
Committee further decided that the applicants who had requested for consideration inabsentia may be called for interview on a subsequent date in contiuation of this interview. In accordance with this decision, the selection committee met again on 4th July 2003 and recommended that Dr. S. Kulshreshtha be appointed on the post of Professor in Tourism. Since, the post has been advertised three times and work at the Institute has been suffering in the absence of the Professor, appointment of Professor is essential at the earliest. Hence, it is propsoed that Dr. S. Kulshreshtha, who is already working as Reader in the Institute may be appointed on the post of Professor in Tourism in the scale of Rs. 16400-22400.
BOG may kindly consider and approve."
The relevant minutes of 27 th meeting of BOG dated 25 th Nov. 2003 reads as under :
"Supp. Agenda Item No. 3 : Appointment of Professor in Tourism at IITTM, Gwalior Board considered the matter and authorized the Chairperson of the BOG to approve the appointment of Professor."
72. From the plain reading of the minutes of the 27 th meeting of BOG dated 25th November 2003, it is clear that the qualification of 10 years post-graduate experience was never waived.
73. The petitioner by document no. 6623/2018 has placed the copy of minutes of meeting of BOG dated 25-2-2003. Although the respondent no. 8 has objected that the documents cannot be filed along with List of 67 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Documents only and therefore, any document filed in such manner may be ignored, but the minutes of 25 th meeting of BOG held on 25-2-2003 is in the file provided by the respondents no. 1 and 2 in a sealed cover. Thus, the minutes of 25th meeting of BOG dated 25-2-2003 are taken up for consideration which reads as under :
"Supplementary Agenda Item No. 2 : Appointment of Professor in Tourism It was informed that none of the 5 candidates interviewed for the post of Professor in Tourism on 24-2-2003 was found suitable. The request made by two candidates for consideration in absentia was considered and it was decied that their candidature would be considered only after their interview at a future date in extention of the interviews conducted on 24th Feb. 2003."
74. It is clear from the above mentioned minutes of the 25 th meeting of BOG dated 25-2-2003, that the minimum qualification of 10 years post- graduate experience was neither considered nor waived. Further, the petitioner has filed a copy of the Verification of Complaint No. CO0082013A0021 of CBI, ACB, Bhopal dated May 22, 2015, which was sent to S.P., CBI, Bhopal as Annexure P/25. It has been mentioned in this communication, that since, the requirement of 10 years post- graduate experience was waived by Selection Committee dated 24-2- 2003, therefore, presumably the same relaxation must have been applied in the case of the two candidates who were interviewed on July 04, 2003. Thus, it is clear that when the BOG had never taken a decision on the question of waiver of minimum qualification of 10 years Post-graduate experience, then the same could not have been applied to the case of any candidate, including the respondent no. 8.
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75. Further, in note sheet dated 18-2-2015, which is a part of the documents provided to the Court in a sealed cover by the respondents no. 1 and 2, it is clear that even the Ministry was of the view that the Board of Governors have not waived the minimum qualification of 10 years post-graduate experience. The relevant part of the note sheet dated 18-02-2015 written by Sh. A.K. Bose Consultant (HRD) reads as under :
"2. The Selection Committee in its meeting held on 24-2-2003 had observed that (page- 143/c) the 10 years PG experience in Tourism may be waived as none of the candidates shortlisted possessed the requisite experience. The reply of former Director in this regard may please be seen at Pages 161- 162/c. The BOG, however, in its meeting on 4-7- 2003 didnot consider to waive of the 10 years experience crieteria as th is experience qualification was neither mentioned in the advertisement for direct recruitment to the post of Professor in Tourism in IITTM nor in the Recuritment rules of this post. The BOG only ratified and authorised the Chairman of the BOG to approve the appointment of Dr. Sandeep Kulshreshtha. The para-wise comments in response to the PIL filed by Shri Harnarayan Yadav may please be seen at page 214/c.
3. The Public Interest Litigation filed by Shri Harnarayan Yadav in Hon. High Court of Madhya Pradesh is pending and might come up for hearing in near future. The court would examine the records submitted by the litigant and IITTM's reply. In case the documents obtained by Shri MPS Yadav is also presented before the Hon. Court, then it would be difficult to prove that Dr. Kulshreshtha had taught MBA/MPA Classes in Madhav College and Court may take a serious view in the matter. However, for the present, we have to wait and watch about the case as and when it comes up for hearing."
76. Although in this note sheet it is mentioned that the experience qualification was not mentioned in the advertisement, but it is factually incorrect.
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77. Thus, it is clear that according to Vigilance Division, the respondent no. 8 Dr. Sandeep Kulshreshtha was not having 10 years post-graduate experience and therefore, relaxation was given.
78. The petitioner has also filed the note sheet dated 20-3-2015 (Annexure P/26). The reply to Point No. 5 reads as under :
"In the Supplementary agenda for the 27 th meeting of the BOG, the question of waiving off the 10 years PG teaching experience was placed before the BOG and also about the meeting of the selection committee on 04-07-2003 which met to consider the candidates inabsentia. The selection committee which met on 04-07-2003 recommeded appointment of Dr. Sandeep Kulshreshtha as Professor in the IITTM. It is presumed that when the Selection Committee made recommendations for appointment of Dr. Kulshreshtha, it might have kept the relaxation of 10 years PG teaching in view though the records donot reflect anything towards this."
79. Thus, it is clear that there is nothing specific on record and every thing was being presumed, which is not permissible under the law.
Thus, it is clear that the minimum qualification of 10 years post- graduate experience was never waived by the BOG in its 25 th meeting dated 25-2-2003 and also in its 27 th meeting dated 25-11-2003. However, it is clear from the minutes of meeting of Selection Committees that in fact the minimum qualification of 10 years PG experience was waived by the Selection Committee, whereas the Selection Committees had no right to waive the minimum qualification of 10 years PG experience.
Whether the Selection Committee held its meeting on 4 th July 2003?
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80. Although, it is the case of the respondents that the Selection Committee in its meeting dated 4 th July 2003, had recommended the name of Dr. Sandeep Kulshreshtha for his appointment on the post of Professor (Tourism), however, the minutes of the said meeting are not on record. Even the names of the members are also not known. It is also not known that whether Mrs. Rathi Vinay Jha, Secretary (Tourism) had chaired the said meeting or not? It is not out of place to mention here that Mrs. Rathi Vinay Jha, was the chairperson of the Board of Governors also. If she was the member of Selection Committee, then the Board of Governors, should not have authorized her to approve the appointment. Thus, in absence of minutes of meeting dated 4 th July 2003, it is difficult to hold that whether the meeting of Selection Committee dated 4th July 2003 was held validly or not? However, since, the respondents have withheld the minutes of meeting of the Selection Committee dated 4th July 2003, therefore, an adverse inference is drawn against the respondents.
Qualification of Dr. Sandeep Kulshreshtha
81. The relevant portion of the CV of Dr. Sandeep Kulshreshtha is reproduced as under :
S.No Post Held & Year Classes Department
. Pay Scale Taught
1 Reader 26-02-98 PGDB Indian Institute of Tourism &
(12000- to till M Travel Management, Govt. of
18300) date DTM India, Govindpuri, Gwalior
MDP
EDP
2 Reader 29-01-97 DTM Business Studies IITTM, ETC,
(3700-5700) to 25-02- MDP Bhubaneswar, Orissa
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Manoj Pratap Singh Yadav Vs. Union of India and others 97 EDP 3 Sr. Assistant 25-02-96 M.Com Commerce Department, Madhav Professor to 27-01- . Post Graduate College, Jiwaji (3000-5000) 97 MBA University, Gwalior MPA 4 Asstt.Profes 25-02-91 M.Com Commerce Department, Madhav sor to 24-02- . Post Graduate College, Jiwaji (2200-4000) 96 MBA University, Gwalior MPA 5 Lecturer 25-08-90 M.Phil School of Commerce and (2200-4000) to 24-02- MBA Management Studies, Jiwaji 91 University, Gwalior 6 Lecturer 20-03-90 M.Com School of Commerce and to 22-08- Management Studies, Jiwaji 90 University, Gwalior
82. From the plain reading of CV, it is clear that at Sr. No. 3, the respondent no. 8 had disclosed that in the capacity of Sr. Assistant Professor he had taught M.Com., MBA and MPA Classes in Commerce Department, Madhav Post Graduate College, Jiwaji University, Gwalior and at Sr. No. 4, the respondent no. 8 had disclosed that in the capacity of Asstt. Professor, he had taught M.Com., MBA and MPA classes in Commerce Department, Madhav Post Graduate College, Jiwaji University, Gwalior.
83. It is submitted by the Counsel for the respondent no. 8 that no misleading information was given in CV. In the CV, the respondent no. 8 has disclosed that he had taught M.Com. Classes in Commerce Department, Madhav Post Graduate College, and MBA and MPA Classes in Jiwaji University, Gwalior. The explanation given by the respondent no. 8 cannot be accepted. The respondent no. 8 has filed the experience certificates issued by Jiwaji University, Gwalior and it is clear from those 72 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others certificates, that the respondent no. 8 had taught few classes of MBA and MPA in the capacity of Guest Faculty. If the intention of the respondent no. 8 was to declare that he had taught MBA and MPA classes in Jiwaji University, Gwalior as Guest Faculty, then he should not have clubbed the said information in Sr. No. 3 and 4, and should have disclosed separately that as a Guest Faculty, he has taken few classes of MBA and MPA Classes in Jiwaji University, Gwalior. But instead of disclosing that he had taken the classes as a Guest Faculty, it was disclosed by Dr. Kulshreshtha that he had taken the MBA and MPA classes as Sr. Asstt. Professor or Asstt. Professor. Further, Commerce Department, Madhav Post Graduate College, is affiliated to Jiwaji University, Gwalior. Thus, the explanation given by respondent no. 8 cannot be accepted and in fact, it was disclosed by respondent no. 8 that he had taught M.Com, MBA and MPA classes in Commerce Department, Madhav Post Graduate College, Jiwaji University, Gwalior in the capacity of Sr. Asstt. Professor, and Asstt. Professor, whereas the admitted position is that there were no MBA or MPA classes in Commerce Department, Madhav Post Graduate College, Jiwaji University, Gwalior. Thus, it is held that the respondent no. 8 had given wrong information in his CV about his 10 years experience of post graduate classes.
84. It is next contended by the Counsel for the respondent no. 8 that even if the experience of teaching MBA and MPA classes is excluded, still then the respondent no. 8 had 10 years of Post-graduate experience. To substantiate his submissions, the Counsel for the respondent no. 8 has 73 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others submitted that the respondent no. 8 had taught post-graduate classes in the capacity of Reader, IITTM, Gwalior, which is mentioned at Sr. No. 1 and 2 of CV.
85. Considered the submissions made by the Counsel for the respondent no. 8.
86. Since, the minutes of meeting of the Selection Committee dated 4 th July 2003, which had recommended the appointment of respondent no. 8 is not on record, therefore, in view of the note sheet dated 20-3-2015 written by A.K. Bose, Consultant (HRD) (Annexure P/26), it is clear that the Selection Committee was not of the view that the respondent no. 8 is having 10 years post-graduate experience. The respondents no. 1 and 2 have relied upon a communique dated Jan 22, 2015 written by Dr. Sitikantha Mishra, Chairman, All India Board of Hospitality and Tourism Management, ACITE, New Delhi. It is not out of place, that the respondents no. 1 and 2 have not placed any document of the year 1998 on record to suggest that AICTE was treating Diploma in Tourism Management Courses run by IITTM as post graduate course. Along with this communique, the approval process handbook of the year 2015-2016 has been annexed and the respondent no. 8 has also relied upon the same handbook. However, no document has been filed to show that what were the norms for PGDM Programmes in the year 1998 onwards. Further, it is submitted by the Counsel for the respondent no. 8 that as per Service Bye-laws dated 18th January 1983, the minimum qualification for recruitment to the post of Professor was at least 8 years experience of 74 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others teaching to graduate/post graduate Class. However, according to the Counsel for the respondents no. 1 and 2, the qualification is as per UGC Norms i.e., 10 years post-graduate experience.
87. For recruitment to the post of Professor (Tourism), the minimum qualifications as mentioned in the advertisement are as under :
"Max. Age : 50 years Educational Qualifications :
An eminent scholar with published work of high quality, actively engated in research in which 10 years of experience in post graduate teaching and/or research at the university/national level institutions including experience of guiding research at doctoral level OR an outstanding scholar with established reputation who has made sinificant contribution to knowledge."
88. It is submitted by the Counsel for the respondent no. 8 that although the respondent no. 8 has no 10 years post-graduate experience in Tourism, but in the advertisement, it was nowhere mentioned that the 10 years post-graduate experience is required in "Tourism", but it was merely mentioned that 10 years post-graduate experience is required. The contention of the Counsel for the respondent no. 8 cannot be accepted. The advertisement start with the following words :
"Applications are invited for the post of Professor in Tourism at IITTM, Gwalior. No. Of post : One. Pay Scale 16400-450-20900-500-22400."
89. Therefore, the requirement of 10 years post-graduate experience has to be read as 10 years post-graduate experience in Tourism. Therefore, the Selection Committee met on 24-2-2003 had held that none of the candidates are having 10 years post-graduate experience in Tourism.
75 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others
90. As per note sheet dated 16-7-2015, which is a part of the documents provided under the sealed cover, the Vigilance Division had remarked that "In fact 10 years teaching experience at Post Graduate Level was the requirement as per the advertisement. Hence, numbers of years of teaching experience is not relevant. As none of the candidate, including Shri Sandeep Kulshreshtha had the requisite teaching experience, the relaxation was given."
91. Thus, according to the Vigilance Division, the respondent no. 8 Sandeep Kulshreshtha was not having 10 years post-graduate experience.
92. Furthermore, if the advertisement was vague, then the respondent no. 8 cannot take advantage of the same, and the respondents were under obligation to re-advertise the post. Further, it is the case of the respondents, that the requirement of 10 years post-graduate experience was waived.
93. It is well established principle of law that the qualifications cannot be changed in the mid of the recruitment process. If the respondents were of the view that the condition of 10 years post-graduate experience is liable to be waived, then a fresh advertisement should have been issued, so that other desirous candidates could have applied for the post of Professor (Tourism).
94. The Supreme Court in the case of A.P. Public Service Commission v. B. Swapna, reported in (2005) 4 SCC 154 has held as under 76 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others "14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka and Gopal Krushna Rath v. M.A.A. Baig.)
15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.
(Underline applied)"
The Supreme Court in the case of Mohd. Sohrab Khan v.
Aligarh Muslim University, reported in (2009) 4 SCC 555 has held as 77 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others under :
"25. We are not disputing the fact that in the matter of selection of candidates, opinion of the Selection Committee should be final, but at the same time, the Selection Committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process during its midstream. Merajuddin Ahmad did not possess a degree in Pure Chemistry and therefore, it was rightly held by the High Court that he did not possess the minimum qualification required for filling up the post of Lecturer in Chemistry, for Pure Chemistry and Industrial Chemistry are two different subjects.
26. The advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Master's degree-holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post."
The Supreme Court in the case of K. Manjusree v. State of A.P reported in (2008) 3 SCC 512 has held as under :
"27.............. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them -- P.K. Ramachandra Iyer v. Union of India, Umesh Chandra Shukla v. Union of India and Durgacharan Misra v. State of Orissa."
The Supreme Court in the case of Maharashtra SRTC v. 78 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others Rajendra Bhimrao Mandve reported in (2001) 10 SCC 51 has held as under :
"5..........It has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced............... "
95. Thus, it is clear that since, the minimum qualification of 10 years post-graduate experience was waived in the mid way, therefore, the entire selection process gets vitiated.
96. Accordingly, it is held that not only, the respondent no. 8 did not have minimum qualification for holding the post of Professor (Tourism), but in view of the waiver of the minimum qualification of 10 years post-graduate experience, and that too without approval by the Board of Governors, the entire selection process for the post of Professor (Tourism) stood vitiated.
Whether the Selection Committee met on 24-2-2003 was right in permitting two candidates to participate inabsentia?
97. Although, none of the parties have filed the copy of the interview call letter issued to the candidates, but some of them are available in the bundle of documents which were provided in a sealed cover. The interview call letter issued to one of the candidate namely Dr. P. Rajendra reads as under :
February 10,2003 Dr. P. Rajendran 6/56, M. Reddiapatty P.O. Distt. Virudhu Nagar Tamilnadu 626118 79 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Dear Sir, With reference to your application for the post of Professor in Tourism at IITTM-Gwalior, in response to our advertisement, I am happy to invite you for interview on Monday, the 24 th Feb 2003 at 3.30 p.m. in the Conference Hall, First Floor, Transport Bhawan , Parliament Street, New Delhi.
In the event of failure to report on the above date and time for interview, no representation/claim will be entertained. No TA/DA will be payable for attending the interview. Since, we will have to check the documents enclosed along with your application before the interview, you are requested to reach by 3:00 p.m. along with all original documents.
This invitation in anyway doesnot mean that you have the minimum requisite qualifications for regular appointment to the post of Professor. Kindly acknowledge the receipt and send your confirmation for participation at the interview in the enclosed proforma by return fax.
98. The interview call letter issued to the respondent no. 8 for interview on 24-2-2003 is not on record, but it can be safely presumed that similar call letter, as mentioned above, must have been issued to respondent no. 8 also.
99. Thus, it was already decided that in case of failure to participate on 24-2-2003 under no circumstance, any representation or claim would be entertained, then why the request made by the respondent no. 3 for consideration of candidature in absentia was accepted is not clear. Thus, it is clear that the Selection Committee had departed from the norms in the mid of the recruitment process.
Whether there was any post of Professor (Tourism) in IITTM Gwalior?
100. A new fact has emerged from the documents which were supplied 80 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others in a sealed cover, that an information dated 10-4-2012 was given by Shri S.K. Chakraborti, Dy. Secretary, Union of India, to the effect that there is no post of Professor (Tourism) in IITTM. The relevant portion of the information dated 10-4-2012 reads as under :
2- vkids mijksDr vkosnu es visf{kr lwpuk vkpk;Z (i;ZVu) vkbZ vkbZ Vh Vh ,e ls lacaf/kr gSA ;g lwfpr fd;k tkrk gS fd vkbZ vkbZ Vh Vh ,e es vkpk;Z (i;ZVu) dk dksbZ in ugh gSA
101. Further, a table was prepared indicating the point raised in the letter, comments of IITTM and Ministry's view on the point. As per this table dated 18-2-2015 (which is a part of the documents provided in a sealed cover), in response to the Letter dated 30-5-2012 it has been mentioned as under :
Comments of IITTM Ministry's View It has been clarified in one Dr. Sandeep Kulshreshtha was of the recruited against the post of Ministry's reply sent Professor, Tourism in the IITTM. If under the there is no post, as initiated to S hri Signature of Shri S.K. Yadav by the Ministry, then against Chakraborti,that there is no which post of Professor, he has been post of Professor (Tourism) in appointed. the IITTM. (page 129/cof file No. 67(21)/2011/IITTM
102. Thus, it appears, that without there being any post of Professor in Tourism, the respondent no. 8 was given appointment on the post of Professor in Tourism.
Appointment of Respondent no. 8 on the Post of Director, IITTM-Gwalior.
103. It is the contention of the petitioner, that an enquiry was pending 81 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others against the respondent no. 8, therefore, he could not have been subsequently appointed on the post of Director, IITTM-Gwalior. To buttress his contentions, the petitioner has relied upon the information given by MoT under the Right to Information Act, by its reply dated 23- 6-2015 which reads as under :
Kindly, refer to your RTI Registration No. MTOUR/R/2015/60118 dated 21-05-2015. This is regarding the allegations raised by Shri Manoj Pratap Singh Yadav against Shri Sandip Kulshreshtha, Director, Indian Institute of Tourism & Travel Management regarding irregularities in the conduct of guide training programme. The information requested by you is as below.
Q.No. Information Sought Reply of the Ministry 1.1 The Ministry may say yes, No, the inquiry process in the if the inquiry process was aforesaid case was not completed completed on 12th June as on 12th June 2014. 2014?
1.2 If the inquiry process was Yes, the inquiry process was not completed by 12th June pending as on 12th June 2014.
2014, the Ministry may clearly state thata the said inquiry process was pending as on 12th June 2014?
104. Thus, according to MoT, an enquiry was pending against the respondent no. 8 on 12th June 2014, therefore, vigilance clearance for appointment on the post of Director, IITTM-Gwalior should not have been given. Whereas, it is the stand of the respondents no. 1 and 2 that no enquiry was pending against the respondent no. 8. The Counsel for the respondent no. 8, has submitted that the role of the respondent no. 8 was not under scrutiny in the enquiry regarding irregularities in guide training programme.
105. As per the Recruitment Rules for the post of Director in the 82 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others IITTM, the minimum qualification is that the person holding posts in the scale of Rs. 16,000-22400 (pre-revised) or equivalent having 3 years regular service in the grade. The post of Professor is in the scale of Rs. 16000-22400 (Pre-revised), therefore, 3 years regular service in the said grade is the minimum requirement for recruitment to the post of Director. Since, this Court has already held that the respondent no. 8 was not eligible to hold the post of Professor (Tourism), therefore, it is held that since, the respondent no. 8 was not having minimum qualification for his appointment to the post of Director-IITTM-Gwalior, therefore, his appointment is bad. However, the question of pendency of enquiry on 12th June 2014 is kept open.
Whether the CBI was right in returning the matter to CVO, Ministry of Tourism, even after having come to conclusion that the respondent no. 8 Sandeep Kulshreshtha had furnished false information.
106. It is the stand of the CBI, that it has no authority to investigate the matters involving offence under Penal Code and since, no case for offence under Prevention of Corruption Act was made out, therefore, the matter was sent back to the CVO of Ministry of Tourism.
The self contained note prepared by the CBI mentions as under :
"In view of the above facts, the role of the then officials of IITTM, Gwalior and Ministry of Tourism, Govt. of India is required to be enquired. If some criminality is found against them, the matter may be referred to CBI, Bhopal.
Dr. Sandeep Kulshreshtha had falsely declared in his CV that he had 10 years Post Graduate teaching experience while applying for the post of Professor 83 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others (Tourism) at IITTM Gwalor. His Role may be enquired into and if deemed fit, the local police may be approached for taking necessary legal action him."
107. Section 13 of Prevention of Corruption Act, 1988, as it was in force in the year 2003 reads as under :
13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,--
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources 84 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others or property disproportionate to his known sources of income.
Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.
108. Thus, as per Section 13(1)(d)(ii) and (iii) of Prevention of Corruption Act, 1988, even if any public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest or any public servant by abusing his position, obtains either for himself or for any other person any valuable thing or pecuniary advantage, then it can be said that the said Public Servant had committed an offence punishable under Section 13(1)(d)(ii) or (iii) of Prevention of Corruption Act. Thus, when the CBI had already come to a conclusion that the respondent no. 8 had obtained appointment to the post of Professor (Tourism) by furnishing false information, and was also of the view that the role of the then officials of IITTM, Gwalior and Ministry of Tourism, Govt. of India is required to be enquired, then it should not have delegated its statutory powers to the Chief Vigilance Officer, Ministry of Tourism. If the then officials of IITTM Gwalior or of Ministry of Tourism had misused their office, for giving appointment to the respondent no. 8 in an illegal manner, then certainly an offence under Section 13(1)(d)(ii) and (iii) read with Section 13(2) of Prevention of 85 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Corruption Act would be made out. Thus, the opinion of the CBI that no offence under Prevention of Corruption Act was made is contrary to their own Self Contained Note.
109. It is submitted by the Counsel for the respondents no. 1, 2, 9 and 8 that if the police fails to register a F.I.R., then the writ petition is not maintainable and the only remedy available to the complainant is to file the criminal complaint under Section 200 of Cr.P.C. To buttress their contentions, the Counsel for the respondents no. 1, 2, 9 and 8 have relied upon the judgment of the Supreme Court passed in the case of Sakiri Vasu vs. State of U.P., reported in (2008) 2 SCC 409 and Aleque Padamsee and others Vs. Union of India & Ors., reported in (2007) 6 SCC 171.
110. Considered the submissions made by the Counsel for the respondents. It is well established principle of law that if the police fails to register the F.I.R. in a cognizable offence, then the remedy available to the aggrieved person is to file a criminal complaint under Section 200 of Cr.P.C.
111. The Supreme Court in the case of Divine Retreat Centre Vs. State of Kerala and others reported in (2008) 3 SCC 542 has held as under:-
"41. It is altogether a different matter that the High Court in exercise of its power under Article 226 of the Constitution of India can always issue appropriate directions at the instance of an aggrieved person if the High Court is convinced that the power of investigation has been exercised by an investigating officer mala fide. That power is to be exercised in the rarest of the rare case where a clear 86 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others case of abuse of power and non-compliance with the provisions falling under Chapter XII of the Code is clearly made out requiring the interference of the High Court. But even in such cases, the High Court cannot direct the police as to how the investigation is to be conducted but can always insist for the observance of process as provided for in the Code.
112. Thus, where the investigating agency, on incorrect ground, refuses to continue with investigation and decides to transfer the investigation to some other agency, with a request to find out that whether there is any criminal intention on the part of the Public Servants or not, in the considered opinion of this Court, such an act of CBI was not in accordance with law. When the CBI had already started investigation and had also prepared a self contained note with a finding that the respondent no. 8 has obtained the appointment to the post of Professor (Tourism) by furnishing false information, then it was their duty to find out that whether the other public servants had committed any offence under Section 13(1)(d)(ii) and (iii) of Prevention of Corruption Act or not? The CBI should not have delegated its power to CVO, MoT. The CBI derives its power of investigation under the provisions of Cr.P.C. The same cannot be delegated to an agency which is not a Police Station.
Section 2(s) of Cr.P.C. reads as under :
(s) "police station" means any post or place declared generally or specially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf;
Section 4 of Cr.P.C. reads as under :
4. Trial of offences under the Indian Penal Code and other laws.-- (1) All offences under the Indian 87 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Sections 156, 157 and 160 of Cr.P.C. read as under :
156. Police officer's power to investigate cognizable case.-- (1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.
157. Procedure for investigation.--(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender:
Provided that--
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person 88 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others or depute a subordinate officer to make an investigation on the spot,
(b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case:
Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.
(2) In each of the cases mentioned in clauses (a) and
(b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements of that sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.
160. Police officer's power to require attendance of witnesses.-- (1) Any police officer making an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person 1[under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person] shall be required to attend at any place other than the place in which such male person or woman resides. (2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.
113. The Supreme Court in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 has held as under :
120. In view of the aforesaid discussion, we hold:89 Writ Petition No.4308/2016
Manoj Pratap Singh Yadav Vs. Union of India and others 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. 120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay 90 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others and the causes of it must be reflected in the General Diary entry.
120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
114. Thus, it is clear that in a given case, the investigating officer, may conduct a preliminary enquiry, and in the present case, the CBI itself had prepared a Self Contained Note after conducting the preliminary enquiry and had also come to a conclusion that the respondent no. 8 had falsely declared in his CV that he had 10 years Post Graduate teaching experience. This Court has also come to a conclusion that incorrect declarations were made by the respondent no. 8 in his CV. Thus, after conducting a preliminary enquiry, the CBI cannot transfer its powers to CVO of MoT. Thus, in the considered opinion of this Court, the principle laid down by the Supreme Court in the case of Aleque Padamse (Supra), Sakiri Vasu (Supra) would not apply, and this Court can direct the CBI to proceed further with the investigation, from the stage, where it was left by it.
115. However, it is contended by the Counsel for the respondents no. 1 and 2 that the CVC by its letter dated 20-10-2015 (Annexure R-1/1) has also accepted the report submitted by MoT and had advised the closure of the matter. Thus, the CBI cannot reopen the matter. It is further submitted that the MoT by its letter dated 8-2-2017 (Annexure R-1/2) addressed to Deputy Secretary (HRD) has informed that the Competent 91 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others Authority has decided that the above complaint may be closed.
116. Although the note-sheets have not been filed by the Counsel for the respondents no. 1 and 2, but the documents provided in a sealed cover contains note sheets from 3-10-2016 onwards, and once again comments from the respondent no. 8 were called. Thus, it is clear that the MoT was again looking into the allegations made against the respondent no. 8. Further, the CBI has been constituted under the provisions of Delhi Police Establishment Act, whereas CVC has been constituted under Central Vigilance Comission Act, 2003. The CBI is a police station and the CVC is required to give report to the President, and there is nothing on record to suggest that any report, in respect of the present case, was ever submitted to the President. Although CVC exercises powers of superintendence, but the CBI can be directed to start the investigation from the stage where it had left the investigation. Role of Sh. Vivek Khedkar, Assistant Solicitor General
117. Certain personal allegations have been made by the Petitioner against Sh. Vivek Khedkar, Asstt. Solicitor General. This Court is of the considered opinion that it has no jurisdiction to consider that whether an Advocate has committed a Professional misconduct or not? The Supreme Court by judgment dated 28.01.2019 passed in the case of R. Muthukrishnan vs. The Registrar General of the High Court of Judicature at Madras (WRIT PETITION [C] NO.612 OF 2016) has held as under:-
''71. Thus, after the coming into force of the Advocates Act, 1961 with effect from 19-05-1961, matters 92 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others connected with the enrolment of advocates as also their punishment for professional misconduct is governed by the provisions of that Act only. Since, the jurisdiction to grant license to a law graduate to practice as an advocate vest exclusively in the Bar Councils of the State concerned, the jurisdiction to suspend his licence for a specified term or to revoke it also vests in the same body.
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79. An Advocate who is found guilty of contempt of Court may also, as already noticed, be guilty of professional misconduct in a given case but it is for the Bar Council of the State or Bar Council of India to punish that Advocate by either debarring him from practice or suspending his licence, as may be warranted, in the facts and circumstances of each case.....................''
118. Thus, it is clear that the question of professional misconduct by an Advocate is within the exclusive domain of the State Bar Council and this Court cannot consider this aspect. However, Shri Vivek Khedkar, ASG, should not have blindly taken instructions from KP Gautam, who was never authorized by the Union of India as well as the Ministry of Tourism, to act as an OIC. Shri Vivek Khedkar, ASG should have acted, only after receiving instructions from Union of India, and Ministry of Tourism.
Defective Vakalatnama of Shri S.S. Bansal, Counsel for respondents no. 1 and 2
119. It is fairly conceded by the petitioner that any defect in the Vakalatnama is curable and Shri S.S. Bansal had subsequently filed his properly executed Vakalatnama on behalf of the respondents no. 1 and 2.
Whether it was appropriate on the part of the Union of India (MoT) to appoint the OIC working under the respondent no. 8 or in order to maintain transparency the respondents no. 1 and 2 should 93 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others have appointed a person as OIC who was not under the control of the respondent no.8
120. As already mentioned above, the respondents no.1 and 2 should not have asked the respondent no. 8 to defend on their behalf also. When serious allegations were made against respondent no. 8, then in all fairness, the respondents no. 1, 2 and 9 should have appointed a person as OIC who was not working under the control of the respondent no. 8 and the respondents no. 1, 2 and 9 should have filed their returns/application independently. It is also not known that whether the OIC.s who were working under the control of respondent no. 8 had filed the return or applications on the instruction of the respondents no.1, 2 and 9 or they were filed under the instructions of the respondent no.8? The respondent no. 8 has filed I.A. No.7072/2019 along with certain documents including the photocopy of the petition filed by one Harnarayan Yadav. Similarly, respondents no. 1 and 2 also filed I.A. No. 7066 of 2019 and the same copy of the writ petition filed by one Harnarayan Yadav was also filed. Both the I.A.s were filed on 13-8- 2019. When Sh. Saurabh Dixit, the OIC of the case, who is working on the post of Associate Professor and Nodal Officer, IITTM-Gwalior, who was present in the Court was asked about the source of copy of the writ petition filed by Harayana Yadav, then it was replied by him, that the said document was made available by MoT. When Shri Saurabh Dixit was asked to file the covering letter written by MoT, then he kept silence and did not answer. On repeated queries, he submitted that the entire file has 94 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others already been submitted in sealed cover. The photocopy of the WP filed by Harnarayan Yadav is not available in the documents which were submitted in sealed cover. Further, it is clear from the photocopy of the writ petition filed by respondents no. 1 and 2, that it is the copy of notice which was received by the Director, IITTM- Gwalior. Thus, it is clear that the copy of the writ petition filed by Harnarayan Yadav was not made available by MoT, but still the same was filed. Thus, this Court is of the considered opinion, that the respondents No. 1, 2 and 9 have not contested the case in an independent and fair manner, and possibly the return and other applications on behalf of respondents no. 1, 2 and 9 were filed on the instructions of respondent no. 8.
IA No. 5508/2017, an Application under Section 195 and 340 of Cr.P.C.
121. None has filed reply to this application.
122. The Supreme Court in the case of Amarsang Nathaji v. Hardik Harshadbhai Patel, reported in (2017) 1 SCC 113 has held as under :
5. There are two preconditions for initiating proceedings under Section 340 CrPC:
(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 CrPC, and
(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.
6. The mere fact that a person has made a contradictory statement in a judicial proceeding is 95 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as "IPC"); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v.
Union of India). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.
7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not 96 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra.)
123. The High Court of Delhi in the case of Prem Prakash Dabral Vs. State and others (CRL. M.A. 17199/2017 in TEST CAS. 40/2012) decided on 15-5-2019 has held as under :
4..........It must be resorted to only in rare cases where it is absolutely necessary in the interest of justice (Santokh Singh v. Izhar Hussain, AIR 1973 SC 2190 and Patel Laljibhai Somabhai v. State of Gujarat, AIR 1971 SC 1935).....
124. Certain lapses have been committed by respondents no. 1, 2 and 9 in contesting this petition, and whether it was the respondent no. 8 who was responding through the OIC is a complicated question of fact, therefore, this Court is of the view that at this stage, no action is required against any person under Section 195 and 340 of Cr.P.C. The Supreme Court in the case of Iqbal Singh Marwah Vs. Meenakshi Marwah reported in (2005) 4 SCC 370 has held as under :
33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.
125. Thus, the CBI is also given liberty to look into the conduct of all 97 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others the OIC's, because none of the document was manipulated while they were in custodia legis and thus, the CBI can investigate the conduct of the OICs.
126. Accordingly, I.A. No. 5508/2017, which is an application under Section 195,340 of Cr.P.C. is disposed of accordingly. Effect of Dismissal of Writ Petition filed by Harnarayan Yadav
127. It is submitted by the Counsel for the respondents no . 1, 2, 9 and 8 that one Harnarayan Yadav, had filed a similar petition before this Court, which was registered as W.P. No.3854 of 2012 and the said writ petition was dismissed for want of prosecution by order dated 17-6- 2016. It is submitted that the address of Harnarayan Yadav and the present petitioner is the same, therefore, it appears that the petition filed by Harnarayan Yadav was a sponsored petition. When a specific question was put to the Counsel for the respondents no. 1, 2, 9 and 8 that whether the dismissal of writ petition No. 3854/2012 in default would have any effect on the present case or not, then it was submitted by them, that the dismissal of W.P. No. 3854/2012 filed by Harnarayan Yadav would not have any adverse effect on the present petition. In view of the said submission made by the Counsel for the respondents no. 1, 2 ,9 and 8, this Court does not think it appropriate to deal with this issue any more.
128. So far as the objection of the Counsel for the respondent no. 8 that the petitioner should not have filed the documents along with the list of document is concerned, since the authenticity of any document filed by 98 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others the petitioner has not been challenged, therefore, at this stage, the objection raised by the respondent no. 8 with regard to manner of filing document is ignored. Further, the respondent no. 8 should not have appointed Sh. K.P. Gautam, as Officer-in-charge of the case.
129. All the I.A.s, except IA. No. 6046 of 2018, which were pending are also disposed of. I.A. No. 6046 of 2018, which was for recall of order dated 22-10-2018 is hereby rejected.
Whether any direction can be given against the OIC.s?
130. The respondents have raised an objection that since, none of the OIC has been made a party to this petition, therefore, no allegation made against them can be looked into. The submission made by the respondents is misconceived. The OIC.s have filed their affidavits along with return or applications and the allegations have been made that in fact either they have filed the application(s) without any authority or they were working under the instructions of respondent no. 8. No allegation has been made. Therefore, they are very much party to this litigation. Therefore, their personal conduct in the capacity of OIC can be judged. Thus, the objection raised by the respondents in this regard is hereby rejected.
Conclusion
131. In view of the above discussion, the appointment of the respondent no. 8 to the post of Professor (Tourism) by order dated 30-9- 2003 and regularization by order dated 15 th June 2007 (Annexure P/6) are hereby quashed with immediate effect. Similarly, the order dated 99 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others June 25th, 2014 (Annexure P1/A) by which the respondent no. 8 was appointed to the post of Director IITTM-Gwalior is also hereby quashed with immediate effect. The respondent no. 8 shall cease to hold the office of Director, IITTM-Gwalior with immediate effect.
(ii) This Court has come to a conclusion that the respondent no. 8 had secured appointment to the post of Professor (Tourism) by furnishing incorrect information, and he was not eligible for his appointment to the post of Professor (Tourism). At the time of appointment to the post of Professor (Tourism), the respondent no. 8 was working on the post of Reader, therefore, he shall continue to work on the post of Reader. Consequently, the respondent no. 8 is directed to refund the difference of salary between the pay of Reader and Professor (Tourism)/ Director IITTM-Gwalior, within a period of 3 months from today, failing which the delayed refund would carry the interest at the rate of 6% per annum.
(iii) The CBI is directed to start the investigation from the stage, where it was left by it. The CBI is also directed to investigate that whether all the OIC's, who have filed their affidavits, had actually acted on the instructions of the MoT or not and whether the documents filed along with the return or any other applications were provided by MoT or not and whether the OIC's before filing the return or applications had taken approval from the respondents no. 1, 2 and 9 in writing or not? The CBI is further directed to enquire that whether any enquiry was pending against the respondent no. 8 on 14 th June 2014 or not? The CBI is further directed to investigate into the acts of Govt. officials who had 100 Writ Petition No.4308/2016 Manoj Pratap Singh Yadav Vs. Union of India and others facilitated the respondent no. 8 in securing appointment to the post of Professor (Tourism) and Director IITTM-Gwalior. The CBI is further directed to investigate that whether there was any post of Professor in Tourism in IITTM or not?
With aforesaid directions, this petition is Allowed with a cost of Rs. 20,000/- payable by the respondent no. 8 to the petitioner. The cost be paid within a period of 3 months from today.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2019.08.28 10:05:08 +05'30'