Dr. Anju Chaudhary vs State Of U.P. And 5 Others
2022 Latest Caselaw 20817 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. - 29
 
Case :- SPECIAL APPEAL No. - 607 of 2022
 

 
Appellant :- Dr. Anju Chaudhary
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Appellant :- Kauntey Singh,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Arvind Srivastava Iii,Gagan Mehta
 

 
Hon'ble Manoj Misra, J.

Hon'ble Vikas Budhwar, J.

(Delivered by Manoj Misra, J.)

1. This intra-court appeal is against the judgment and order dated 20.06.2022 passed by the learned Single Judge in Writ A No. 2125 of 2022, whereby the writ petition of the appellant (i.e. the petitioner) has been dismissed.

2. Writ A No. 2125 of 2022 was filed by the appellant for quashing the order dated 20.12.2021 passed by the Director of Higher Education, U.P., Prayagraj (for short the Director) rejecting her representation for her placement as Principal of either Gokul Das Hindu Girls' College, Moradabad or Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya, Harsh Nagar, Kanpur.

3. In brief, the facts giving rise to the present appeal are as follows. Pursuant to an advertisement issued by the U.P. Higher Education Service Commission, Prayagraj (for short the Commission), inviting applications for 290 posts of Principal in various graduate and post-graduate colleges in the State of Uttar Pradesh, the petitioner applied for appointment and, after undergoing the selection process, was placed at serial no. 200 in the revised merit / select list dated 05.10.2021. Dr. Charu Mehrotra (respondent no.5), who participated in the same selection process, was placed at serial no. 205, and Dr. Sunita Arya (respondent no. 6), who was placed at serial no 218, were placed in those colleges which were higher in the order of preference of the petitioner than where the petitioner was placed by the Director. The case of the petitioner is that in her preference /option list of colleges for placement, pursuant to her selection, she had given multiple options in the order of preference. In that list, Gokul Das Hindu Girls' College, Moradabad was at serial no. 20 whereas, Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya, Harsh Nagar, Kanpur was at serial no. 34 in the order of preference. However, the petitioner was placed at Mahila Mahavidyalaya, Kidwai Nagar, Kanpur, which was at serial no. 41 in the order of preference given by the petitioner. On the other hand, the respondent no.5 (Dr. Charu Mehrotra), who was placed at serial no. 205 in the merit list, and respondent no.6 (Dr. Sunita Arya), who was placed at serial no. 218 in the merit list, were placed by the Director in Gokul Das Hindu Girls' College, Moradabad and Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya, Harsh Nagar, Kanpur, respectively. According to the petitioner, since she was placed higher in the final / revised merit list than the respondents 5 and 6, she ought to have been preferred over respondent no. 5 for her placement in Gokul Das Hindu Girls' College, if not there, then over respondent no.6 for her placement in Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya. But since the petitioner was not given the due placement, she filed a representation before the Director. When the representation was not addressed, she filed Writ A No. 17108 of 2021, which was disposed off by order dated 09.12.2021 thereby requiring the Director to decide the claim of the petitioner, in accordance with law, by a reasoned order, after giving opportunity of hearing to the respondent no.5 (Dr. Charu Mehrotra). It was also provided therein that till the representation of the petitioner is not decided, the petitioner shall not be forced to join the allotted college, namely, Mahila Mahavidyalaya, Kidwai Nagar, Kanpur. Pursuant to the order dated 09.12.2021, the representation of the petitioner was decided and rejected by the Director by order dated 20.12.2021 impugned in Writ A No. 2125 of 2022 out of which the present appeal arises.

4. In the writ petition, two counter-affidavits were filed. One was a common counter-affidavit filed on behalf of State-respondents 1, 3 and 4, namely, the State of U.P.; the Director of Higher Education, U.P., Prayagraj and the Joint Director of Higher Education, U.P., Prayagraj. The other was filed on behalf of respondent no.5 (Dr. Charu Mehrotra). In neither of the two counter-affidavits, it was disputed that in the revised merit-list the petitioner was placed higher than Dr. Charu Mehrotra (respondent no.5) and Dr. Sunita Arya (respondent no.6). It was also not disputed in the counter-affidavits that in the list of options (preference list) submitted by the writ petitioner (i.e. the appellant herein), Gokul Das Hindu Girls' College, Moradabad, which was allotted to respondent no.5 (Dr. Charu Mehrotra), was at serial no. 20 and the other college, namely, Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya, Harsh Nagar, Kanpur, which has been allotted to respondent no.6 (Dr. Sunita Arya), was at serial no. 34 whereas, the writ petitioner was allotted Mahila Mahavidyalaya, Kidwai Nagar, Kanpur which was at serial no. 41 in her preference list.

5. In the counter-affidavit submitted by the State-respondents, the allotment of colleges was sought to be justified by stating that it has been made in accordance with the merit and order of preference. In the counter-affidavit filed by the respondent no.5, it is stated that according to the knowledge of the respondent no.5, the petitioner had submitted a wrong preference and therefore she has been allotted Mahila Mahavidyalaya, Kidwai Nagar, Kanpur. In addition to above, another ground was taken that pursuant to the allotment the petitioner had joined on 13.01.2022 therefore, she cannot raise a grievance in respect of the allotment.

6. In the rejoinder-affidavit, the writ petitioner stated that if the petitioner had not joined the allotted college then her candidature would have been cancelled therefore, the petitioner had no option but to join the allotted college. In these circumstances, by joining the college, it can not be said that she waived her right to question the allotment more so, when she had already lodged a protest in respect thereof and had earlier also filed a writ petition questioning the same.

7. Learned Single Judge dismissed the writ petition. The reasons for dismissal can be found in paragraph nos. 7, 8 and 9 of the judgment extracted below:-

"7. After hearing rival contentions, this Court finds that as per Regulation 7(1) of the U.P. Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983, the Commission may recommend three names of the candidates, in order of merit for one post of Principal as per Regulation 7 (2). As per Regulation 7 (3), the post of Principal of degree colleges shall be offered in order of merit with due regard to the options given by the candidates and the post in lower grade shall similarly be offered to candidates standing next in the order of merit. In the present case, admittedly the respondent nos. 5 & 6 are lower in merit than the petitioner and therefore, the petitioner claims to have been offered two institutions in dispute prior to respondent nos. 5 & 6.

8. The preference filled by the petitioner online on 29.07.2021 has been brought on record as Annexure No. 4 to the writ petition which shows that she had given preference to Gokul Das Hindu Girls College, Moradabad (sl.no. 20), Acharya Narendra Dev, Nagar Nigam Mahila Mahavidyalaya, Kanpur Nagar, (sl.no. 34) and third and last preference to Mahila Mahavidyalaya, Kidwainagar, Kanpur Nagar (sl.no. 41). In the counter affidavit filed on behalf of the respondents, the preference given by respondent no. 5 has been brought on record wherein she has given 8th preference to Gokul Das Hindu Girls College, Moradabad (sl.no. 20).

9. It is clear that the 20th preference of the petitioner was Gokul Das Hindu Girls College, Moradabad, while the respondent no. 5 had given 8th preference to the same in her offline option. In her online option, she has also given same preference to Gokul Das Hindu Girls College, Moradabad. Since respondent no. 6 has not appeared nor filed counter affidavit, her preference cannot be examined by this Court but it is clear from the preference of the respondent no. 5 that the petitioner had claimed for appointment in Gokul Das Hindu Girls College, Moradabad by way of 20th preference. In the impugned order passed by the respondent no. 3, Director of Higher Education, it has been mentioned that the placement of the candidates is done by the U.P. Higher Services Selection Commission, Prayagraj. Online appointment is made by the Director of Higher Education. Further considering the fact that the petitioner gave her 20th preference for Gokul Das Hindu Girls College, Moradabad, and the respondent no.5 gave 8th preference to the aforesaid college, the preference of respondent no. 5 was more for Gokul Das Hindu Girls College, Moradabad, vis-a-vis the petitioner who opted for the aforesaid college by giving 20th preference to the same. Even though the petitioner was above in merit list but since she did not opted for the aforesaid college before the preference of respondent no. 5 (8th preference), therefore, the aforesaid college was rightly allotted to the respondent no. 5. Even otherwise, the petitioner has submitted her joining at Mahila Mahavidyalaya Kidwai Nagar, Kanpur Nagar on 15.01.2022 without any protest as clear from Annexure.C.A.5 to the counter affidavit filed on behalf of the State-respondents. She cannot be permitted to maintain her claim against respondent no. 4 anymore. In the rejoinder affidavit filed on behalf of the petitioner, it has only been stated in paragraph no.12 that the petitioner has been compelled to join at Mahila Mahavidyalaya Kidwai Nagar, Kanpur Nagar. Therefore, it is clear that the petitioner has no cause of action left. Even otherwise her preference for Gokul Das Hindu Girls College, Moradabad, was below the respondent no. 5."

8. We have heard Sri Ashok Khare, learned senior counsel, assisted by Sri Kauntey Singh, for the petitioner; learned Standing Counsel for the respondents 1, 3 and 4; Sri Arvind Srivastava-III for the respondent no.5; and Sri Manoj Kumar Singh for the respondent no.2 (the Commission).

9. Sri Khare appearing for the appellant submitted that placement of selected teachers in the colleges is to be made as per the procedure provided in the U.P. Higher Education Services Commission Act, 1980 (for short 1980 Act). Sub-section (4) of section 12 of the 1980 Act reads as under:-

"The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulations :

Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3):

Provided further that the candidates shall be required to indicate their order of preference for the various colleges vacancies wherein have been advertised."

10. Section 13 of the 1980 Act provides as follows:-

"[13. Recommendation of Commission. - (1) The Commission shall, as soon as possible, after the notification of vacancies to it under sub-section (3) of Section 12, hold written examination and interview of the candidates and send to the Director a list recommending such number of names of candidates found most suitable in each subject as may be, so far practicable, twenty five per cent more than the number of vacancies in that subject. Such names shall be arranged in order of merit shown in the interview, or in the examination and interview if an examination is held.

(2) The list sent by the Commission shall be valid till the receipt of a new list from the Commission.

(3) The Director shall having due regard in the prescribed manner, to the order of preference if any indicated by the candidates under the second proviso to sub-section (4) of Section 12, intimate to the management the name of a candidate from the list referred to in sub-section (1) for being appointed in the vacancy intimated under sub-section (2) of Section 12.

(4) Where a vacancy occurs due to death, resignation or otherwise during the period of validity of the list referred to in sub-section (2) and such vacancy has not been notified to the Commission under sub-section (3) of Section 12, the Director may intimate to the management the name of a candidate from such list for appointment in such vacancy.

(5) Notwithstanding anything in the preceding provisions, whereto abolition of any post of teacher in any college, services of the person substantively appointed to such post is terminated the State Government may make suitable order for his appointment in a suitable vacancy, whether notified under sub-section (3) of Section 12 or not in any other college, and thereupon the Director shall intimate to the management accordingly.

(6) The Director shall send a copy of the intimation made under subsection (3) or sub-section (4) or sub-section (5) to the candidate concerned."

11. Under Section 31 of the 1980 Act, the Commission may, with the previous approval of the State Government, make regulations. In exercise of that power, the Commission has made the Uttar Pradesh Higher Education Services Commission (Procedure for Selection of Teachers) Regulations, 1983 (for short 1983 Regulations). Regulation 7 of 1983 Regulations provides as follows:-

"7. Recommendation for appointment. - (1) The Commission may recommend the names of up to three candidates, in order of merit, for each post.

(2) The post of Principal shall-

(a) in the case of women's colleges, be offered to the candidates in the list of women candidates, and

(b) in the other colleges, be offered to the candidates in the general list after striking out the names of the women candidates who have been offered posts under clause (a).

(3) The posts of the Principal of degree colleges in the higher grade shall be offered in order of merit with due regard to the preference given by the candidates and the posts in the lower grade shall similarly be offered to the candidates standing next in order of merit.

(4) The procedure mentioned in sub-regulations (2) and (3) shall, mutatis mutandis, be followed in respect of the posts of teachers, other than Principal."

12. As to how the provisions of 1980 Act and the Regulations framed therein were to be applied was discussed extensively by a Division Bench of this Court in paragraph 9 of its judgment in the case of Km. Alka Rani Gupta v. Director of Education (Higher) and another; 2003 (2) ESC 944 which was affirmed by a Full Bench of this Court in the case of Dr. Vinay Kumar v. The Director of Education (Higher) and Ors.: (2006) 1 UPLBEC 334 equivalent to 2006 (62) ALR 808.

13. It has been urged that in Dr. Vinay Kumar's case (supra), the view taken by Division Bench in Km. Alka Rani Gupta's case (supra), in paragraph 9 of the judgment, has been specifically affirmed in paragraph 42 of the judgment of the Full Bench in Dr. Vinay Kumar's case (supra) and the Full Bench observed, in paragraphs 36 and 37 of its judgment, that the Director at the time of making intimations is required to take into account only two things, in regard to every candidate, namely, the candidate's merit position as determined under section 13(1), and the preferential list of colleges or institutions given by the candidate himself. In paragraph 37, in Dr. Vinay Kumar's case (supra), the Full Bench further observed that the Director has to allot the candidates to different colleges on the basis of these two parameters only.

14. In paragraph 9 of Alka Rani's case (supra), it has been held as follows:-

"9. Thus, the legal position which emerges from the above provisions in the Act and Regulations is as follows :

(1) Where a large number of candidates are selected for various institutions by the Commission, the Commission has to prepare a select list in accordance with the merit determined by the Commission.

(2) The candidate who is on the top of the select list will be given his first preference ;

(3) Then the candidate who is at serial position No. 2 in the select list will be considered by the Director. If his first choice has already been filled by the candidate at the top of the select list, then this candidate will be given his second choice, otherwise he will get his first choice.

(4) Then we come to the candidate who is on the third position in the select list. If the choice of his first preference has not been already allotted to a candidate higher than him in the select list, he will be given that institution, otherwise he will be given his second choice, unless that too has been allotted to the candidate above him, in which case he will be allotted the institution of his third choice. In this way, the Director will do the placement."

15. By relying on the aforesaid judgment, the learned counsel for the petitioner submits that the reasoning recorded by the learned Single Judge fails to take into account the law laid down by Division Bench of this Court in Alka Rani's case (supra), which has been affirmed by the Full Bench in Dr. Vinay Kumar's case (supra) and therefore, the judgment and order of the learned Single Judge as well as the order impugned in the writ petition i.e. of the Director rejecting the representation of the petitioner is liable to be set aside and the Director must therefore accord fresh consideration to the representation submitted by the petitioner in light of the law laid down by this Court in Alka Rani's case (supra), affirmed in Dr. Vinay Kumar's case (supra).

16. Per contra, the learned counsel for the respondent no.5 submitted that if the matter of allotment is to be reopened afresh, several candidates placement would be affected therefore, in absence of they being party to the writ proceeding, relief sought cannot be granted to the petitioner. It has also been urged that the petitioner had joined the allotted institution therefore she has waived her right to challenge her placement. For this reason alone, the writ petition of the petitioner is liable to be dismissed and has rightly been dismissed.

17. Learned Standing Counsel has tried to justify the order passed by the Director and has supported the submissions made by Sri Arvind Srivastava-III, who appeared for the respondent no.5.

18. We have considered the rival submissions and have perused the record.

19. It is not in dispute, inter se parties, that in the order of merit, the writ petitioner (Dr. Anju Chaudhary) was placed at serial no. 200; the respondent no.5 (Dr. Charu Mehrotra) was placed at serial no. 205; and the respondent no.6 (Dr. Sunita Arya) was placed at serial no. 218. It is also not in dispute that in the order of preference submitted by the petitioner Mahila Mahavidyalaya, Kidwai Nagar, Kanpur, the college which has been allotted to the petitioner by the Director, was at serial no. 41 whereas, Gokul Das Hindu Girls' College, Moradabad, which has been allotted to respondent no.5, was at serial no. 20 and Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya, Harsh Nagar, Kanpur, which has been allotted to respondent no.6, was at serial no. 34.

20. In Dr. Vinay Kumar's case (supra), the Full Bench examined the legislative scheme of the 1980 Act to find out as to what legislative intent is spelled out from the amended provisions of sections 12 and 13 thereof. The Full Bench on the use of phrase "due regard" in sub-section (3) of Section 13 of the 1980 Act, in Dr. Vinay Kumar's case (supra), observed, in paragraph 23 of the judgment, as follows:-

"23.  From the definition of word "due regard" as noted above given in Black's Law Dictionary and the observations of the apex Court as quoted above it is clear that "due regard" means regard to a factor which is due according to the statutory scheme. It is also to be noted that Section 13(3) refers to " due regard" in the prescribed manner. Thus "due regard" used in Section 13(3) cannot be interpreted as only regard as sought to be canvassed by the counsel for the petitioner. In case the interpretation suggested by the counsel for the petitioner is accepted the placement of the candidate shall only depend on preference indicated by a candidate that will give a go by to the entire merit scheme. The above interpretation cannot be accepted which can be explained by giving a simple illustration. In merit list ten candidates have given their first preference of a particular college. For recommending the name of the candidate for the particular vacancy in a college, the preference of the candidate higher in merit has to be accepted. The amendment made in Sections 12 and 13 does not indicate that merit base scheme of recommendation of names against the particular vacancy has been given a go by. The merit is pivotal factor and the preference of the candidate has to be given effect to as far as possible. In the event for a particular college no one has given preference person lower in merit may get placement in that college when his chance comes for consideration. The interpretation sought to be canvassed by the counsel for the petitioner does not fall along with the legislative scheme as indicated by amended provision of Sections 12 and 13 of the Act and the Regulations. It is true that those provisions of the regulation which can not stand along with the amended provisions of Sections 12 and 13 has to be treated as not operative but those part of the regulation which is not in conflict with any provisions of the Act, has still to be followed. This view of ours is re-enforced with express provisions of Sections 12 (4) of the amended provision which still refers to and relies the regulation for the manner of selection of persons for appointment."

21. Thereafter, in paragraph 24 of the judgment in Dr. Vinay Kumar's case (supra), the decision in Alka Rani's case (supra) was noticed. Paragraph 24 of the judgment in Dr. Vinay Kumar's case (supra) is extracted below:

" 24. In the case of Alka Rani Gupa (supra), a Division Bench of this Court said as follows in paragraph 9, which is set out below:-

9. Thus the legal position which emerges from the above provisions in the Act and Regulations is as follows :

(i) Where a large number of candidates are selected for various institutions by the Commission, the Commission has to prepare a select list in accordance with the merit determined by the Commission.

(ii) The candidate who is on the top of the select list will be given his first preference.

(iii) Then the candidate who is at serial position No. 2 in the select list will be considered by the Director. If his first choice has already been filled by the candidate at the top of the select list then this candidate will be given his second choice, otherwise he will get his first choice.

(iv) Then we come to the candidate who is on the third position in the select list. If the choice of his first preference has not been already allotted to a candidate higher than him in the select list he will be given that institution, otherwise he will be given his second choice, unless that too has been allotted to the candidate above him, in which case he will be allotted the institution of his third choice. In this way the Director will do the placement."

22. In paragraphs 36, 37, 38 and 39 of the judgment of Dr. Vinay Kumar's case (supra), it was held as follows:-

"36. In our opinion, the Director at the time of making intimation is to take into account only two things, in regard to every candidate, namely, the candidate's merit position as determined under section 13(1), and the preferential list of colleges or institutions given by the candidate himself.

37. How the Director is to allot the candidates to the different colleges on the basis of these two items and these two items only are, with respect, correctly laid down by the Division Bench in paragraph 9 in Alka Rani's case (supra) and we agree with that paragraph in toto.

38. In our opinion the Director does not use a discretionary power in making intimations under sub-section (3) of section 13. Instead of the Director, any other person with an equally logical mind as the Director will also be able to perform the same act but the Director has been given the authority, so as to carry conviction and to make it safe for the colleges to follow the recommendations and intimations coming under his signature.

39. The working of sub-section (3) of section 13 shows that Director's action is compulsorily prescribed by the said sub-section. Although the said sub-section does not refer to the merit list at all yet as laid down in paragraph 9 of Dr. Alka Rani's case (supra) the merit list must be considered by the Director and in this regard the Director cannot disregard sub-section (1) of section 13 and the exercise performed under that sub-section. The exercise by the Director is performed thereafter and must be performed thereon. "

23. From the decision of the Full Bench, it is clear that the Director has to accord due weightage to the merit list before making allotment of colleges. Thus, if we apply the ratio laid down in Alka Rani's case, affirmed in Dr. Vinay Kumar's case, the position that would emerge is that the candidate placed higher in the order of merit would have a first right to be appointed in the college opted than the person/candidate who is lower in the order of merit irrespective of that college being lower in the order of preference than in the preference list of the candidate lower in the order of merit. But, if the person higher in the order of merit is placed in a college which was higher in his order of preference, then his/her claim to the college allotted to the other candidate, lower in the order of merit, would not sustain.

24. As it is clear from the discussion above that the petitioner had placed Gokul Das Hindu Girls' College, Moradabad in the order of preference at serial no. 20 but was placed in a college which was at Serial No. 41 in the order of preference, whereas respondent no.5, though placed lower in the order of merit, was allotted the said college, in our view, the allotment/placement made by the Director was in the teeth of the law laid down by this Court in Alka Rani's case (supra), which has been affirmed by the Full Bench in Dr. Vinay Kumar's case (supra).

25. As the learned Single Judge has failed to take notice of the binding decisions of this Court in Alka Rani's case (supra) and in Dr. Vinay Kumar's case (supra), the view taken by the learned Single Judge cannot be sustained.

26. At this stage, we may deal with the other submission of the learned counsel for the respondent, which is, that since the petitioner had already joined the allotted college before filing this petition, she waived her right to challenge the placement made by the Director.

27. The aforesaid submission does not appeal to us because here the petitioner had earlier filed a writ petition, namely, Writ A No. 17108 of 2021, in which she had specifically challenged her placement. That writ petition was disposed off by giving her liberty to represent her cause to the Director who, in turn, was required to pass a speaking order after hearing the concerned respondent (Dr. Charu Mehrotra). It was specifically directed in the order dated 09.12.2021 that till the decision on the representation, the petitioner shall not be forced to join Mahila Mahavidyalaya, Kidwai Nagar, Kanpur. It is only after the representation was decided that she had joined the college, without specifically giving up her right to challenge the order, because if she had not joined, her candidature would have been cancelled. In these circumstances, where the petitioner had been litigating for her cause, it cannot be said that she had waived her right to challenge the placement.

28. We also do not accept the submission of the learned counsel for the respondent no.5 that all the candidates were required to be impleaded in the writ proceedings. The reason is that the writ petitioner was seeking placement in the college where the respondent no.5 had been appointed though being lower in the order of merit than the petitioner. She was not seeking relief against any other person. In such circumstances, it was not required of her to implead all the selected candidates. Otherwise also, once the allocation/placement is questioned and adjudicated upon, it is for the Director to adjust the allocation of colleges as per law.

29. For all the reasons recorded above, we are unable to agree with the view taken by the learned Single Judge. The judgment and order of the learned Single Judge dated 20.06.2022 is hereby set aside. The writ petition of the petitioner is allowed. The order of the Director dated 20.12.2021 is set aside and a direction is issued to the Director to pass a fresh order in respect of placement of the petitioner, as represented by her vide representation dated 16.12.2021, in accordance with the law, preferably, within a period of four weeks from the date a copy of this order is placed in his office.

30. The appeal is allowed as above.

Order Date :- 13.12.2022

Sunil Kr Tiwari