Allahabad High Court
State Of U.P. Thru. Its Addl. Chief Secy. ... vs Prof. Bimal Jaiswal And 2 Others on 10 March, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
In The High Court Of Judicature At Allahabad
Sitting At Lucknow
Neutral Citation No. - 2025:AHC-LKO:14282-DB
A.F.R
Judgment Reserved on :- 04.03.2025
Judgment Delivered on :- 10.03.2025
Court No. - 1
Case :- SPECIAL APPEAL No. - 89 of 2025
Appellant :- State Of U.P. Thru. Its Addl. Chief Secy. Deptt. Of Higher Education,Lko. And Another
Respondent :- Prof. Bimal Jaiswal And 2 Others
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Nilaya Gupta,Anurag Kumar Singh
Hon'ble Attau Rahman Masoodi J.
Hon'ble Subhash Vidyarthi J.
(Per: Subhash Vidyarthi J.)
1. Heard Shri Kuldeep Pati Tripathi, the learned Additional Advocate General assisted by Shri Nishant Shukla, the learned Additional Chief Standing Counsel appearing on behalf of the appellants, Shri Sandeep Dixit Senior Advocate assisted by Shri Nilaya Gupta Advocate, the learned Counsel for the respondent No.1 and Shri Anurag Kumar Singh, the learned Counsel for the University of Lucknow.
2. By means of the instant Intra Court Appeal filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 the appellants - State of U.P. and Special Secretary, Department of Higher Education, have challenged the validity of a judgment and order dated 27.01.2025 passed by a Single Judge Bench of this Court in Writ-A No.913 of 2025.
3. The aforesaid Writ petition was filed by Prof. Bimal Jaiswal - the respondent No.1 in this Special Appeal, challenging the validity of an Office Order dated 08.01.2025 issued by the State Government whereby the State Government has constituted a Committee for conducting an inquiry in relation to the allegations levelled in the complaint dated 03.12.2024 submitted by an Advocate against the appointment of the respondent No.1 made in the year 2005 on the post of Assistant Professor reserved for the candidates belonging to Other Backward Class (Non-Creamy Layer Category), irregularities committed by him in fixation of examination centers, in appointment of teachers, foul play/manipulation in awarding marks and exploitation of research scholars etc. The constitution of Committee is as follows: -
i
Vice chancellor, Lucknow University, Lucknow
Chairman
ii
Shri D.P. Shahi, Joint Secretary, Higher Education Department, Government of U.P.
Member
iii
Registrar, Chaudhary Charan Singh University, Meerut
Member
iv
Regional Higher Education Officer, Lucknow
Member
The Committee has been directed to conduct an inquiry and submit a report to the Government within 15 days.
4. The aforesaid order was challenged before the Writ Court on the ground that the State Government does not have jurisdiction to pass such an order under provisions of the State Universities Act, 1973. The Writ Court referred to Sections 12 (12) and 66-A of the State Universities Act, 1973 and held that none of the aforesaid provisions empower the State Government for conducting an inquiry regarding allegations against appointment and working of a teacher of a State University.
5. The Writ Court allowed the Writ Petition and quashed the Office Order dated 08.01.2025 leaving it open for the competent authority to pass a fresh order, if required, in accordance with law under the relevant Rules.
6. Challenging validity of the aforesaid order, Shri Kuldeep Pati Tripathi, the learned A.A.G. appearing for the appellants, has submitted that the respondent No.1 is the son of Prof. Siya Ram Jaiswal, who was working as a Professor in Lucknow University. The respondent No.1 got appointed to a post reserved for candidates belonging to Other Backward Class (O.B.C.) category. Being son of a Professor, the respondent No.1 was not entitled to claim the benefit of reservation for candidates belonging to O.B.C. category. He obtained appointment by concealing the fact that his father was a Professor in the University and thereby wrongly claimed the benefit of reservation.
7. The learned A.A.G. has submitted that Section 8 (1) of U.P. State Universities Act 1973 authorizes the State Government to institute an inquiry in such circumstances. This provision was not considered by the Writ Court while dismissing the Writ Petition. He has placed reliance on the judgments passed by the Hon'ble Supreme Court in cases of State of U.P. v. Neeraj Awasthi & Ors.: (2006) 1 SCC 667, Nishith Rai v. State of U.P.: (2018) 3 All.L.J. 683, and Anand Kumar Mishra v. State of U.P.: 2022 SCC OnLine All 311.
8. Shri Anurag Kumar Singh, the learned counsel for the Lucknow University has submitted that the State Government has power to institute an inquiry as per Section 8 (1) of the State Universities Act, 1973 and thus he has supported the appellants.
9. Per Contra, Shri Sandeep Dixit Senior Advocate representing the respondent No.1 has submitted that although it is not disputed that father of the respondent No.1 was a Professor and his initial appointment made in the year 2003 on the post of Assistant Professor may be defective, but subsequently the services of the respondent No.1 on the post of Assistant Professor were confirmed and in due course of time, he has been appointed to a post of Professor. No objection regarding his initial appointment was raised either at the time of confirmation of the services of the respondent No.1 or at the time of his appointment to the post of Professor. The action has been initiated almost 12 years after the appointment of the respondent No.1 on the basis of a complaint submitted by an Advocate, who has no concern with the appointment of the respondent No.1 and who appears to be a mere name-lender.
10. Shri Dixit has submitted that Lucknow University is an autonomous body. The Executive Council of the University has authority to take any action on any complaint against a Professor and the State Government has no such authority. Shri Dixit has relied upon the judgments in the cases of Rakesh Ranjan Verma v. State of Bihar: 1992 Suppl. 2 SCC 343 and Smt. Rekha Yadav v. State of U.P.: 2012 LCD 1017.
11. A candidate belonging to O.B.C. category is entitled to reservation as per the provisions contained in Section 3(1)(c) of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes & Other Backward Classes) Act, 1994, which provides as follows:-
"3. Reservation in favour of Scheduled Castes, Scheduled Tribe and other Backward Classes.--(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentages of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and other backward classes of citizens,--
(a) in the case of Scheduled Castes
twenty one per cent;
(b) in the case of Scheduled Tribes
two per cent;
(c) in the case of other backward classes of citizens
twenty seven per cent:
Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Schedule II.
* * *
12. Schedule II appended to the aforesaid Act is as follows:-
1. Son or daughter of--
(a) a member of Indian Administrative Services Indian Foreign Service, Indian Police Service, Indian Forest Service or other Central Service whether directly recruited or promoted from any State Service; or
(b) a member of Uttar Pradesh Civil Service (Executive Branch), Uttar Pradesh Police Service or other State Service, who has been directly recruited to such Service; or
(c) such Group A/Class I officer of any Department or Ministry of Government of India or educational, research or other institutions under such Department or Ministry, who is not included in sub-category (a); or
(d) such Group A/Class I officer or any Department or institution of the State Government, who is not included in sub-category (b); or
(e) an officer of the defence forces or para military forces who is not below the rank of a Colonel or equivalent rank:
Provided that the income from salary of such member or service or officer is Rupees ten thousand or more per mensum, his spouse is at least a graduate and he or his spouse owns a house in an urban area.
2. Son or daughter of a person engaged in profession as a doctor, surgeon, engineer, lawyer, architect, Chartered Accountant, media and information professional, management and other consultant, film artist and other film professional, running educational institution or coaching institute or ensued in the business as share or stock broker or in entertainment business;
Provided that his average income from all sources for, three consecutive financial years is not less than rupees ten lakh per annum, his spouse is atleast a graduate and his family owns immovable property worth atleast rupees twenty lakh.
3. Son or daughter of a business man whose average income for three consecutive financial years is not less than rupees ten lakh per annum, his spouse is atleast a graduate and his family owns immovable property worth atleast rupees twenty lakh.
4. Son or daughter of an industrialist whose level of investment in running units is over rupees ten crore and such units are engaged in commercial production for atleast five years and his spouse is atleast a graduate.
5. Son or daughter of a person who has holding within the limit fixed under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, has an income of rupees lakh in a financial year from sources other than agriculture such as salary, business or industry and the like and his spouse is atleast a graduate.
6. Son or daughter of a person, not included in any of the aforementioned categories whose average income from all sources for three consecutive financial years is not less than rupees ten lakh per annum, his spouse is atleast a graduate and his family owns movable property worth at least rupees twenty lakh."
13. A copy of the Writ petition has been annexed with the Special Appeal, a perusal whereof shows that in para-12 (i) of the Writ petition, it has been pleaded that the respondent No.1 belongs to 'Kalwar' (Jaiswal caste) which is recognized as Other Backward Class (O.B.C.). However, the respondent No.1 has not pleaded anything about the status of his father at the time of his appointment and he has not pleaded that he does not fall in any of the categories mentioned in Schedule II appended to the Reservation Act, 1994.
14. A bare perusal of the Office Order dated 08.01.2015 challenged in the Writ Petition indicates that besides a complaint regarding appointment of the respondent No.1 against a post reserved for O.B.C. (non-creamy layer), there are also complaints against him regarding certain irregularities committed in fixation of examination centers, appointment of teachers, foul play/manipulation in awarding marks and exploitation of research scholars etc.
15. Chapter-III of the State Universities Act, 1973 deals with "Inspection and Inquiry". Section 8 of the State Universities Act, 1973 falling in Chapter - III provides as follows: -
"(1) The State Government shall have the right to cause an inspection to be made by such person or persons as it may direct, of the University or any constituent college or any Institute maintained by the University, including its buildings, libraries, laboratories, workshops and equipment and also of the examinations, teaching and other work conducted or done by the University or such colleges or Institute or to cause an inquiry to be made in the like manner in respect of any matter connected with the administration and finances of the University or such college or such Institute.
(2) Where the State Government decides to cause an inspection or inquiry to be made under sub-section (1), it shall inform the University of the same through the Registrar, and any person nominated by the Executive Council may be present at such inspection or inquiry as representative of the University and he shall have the right to be heard as such:
Provided that no legal practitioner shall appear, plead or act on behalf of the University at such inspection or inquiry.
(3) The person or persons appointed to inspect or inquire under sub-section (1) shall have all the powers of a Civil Court, while trying a suit under the Code of Civil Procedure, 1908, for the purpose of taking evidence on oath and enforcing the attendance of witnesses and compelling production of documents and material objects, and shall be deemed to be a Civil Court within the meaning of Sections 345 and 346 of the Code of Criminal Procedure, 1973, and any proceeding before him or them shall be deemed to be judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code.
(4)The State Government shall address the Vice-Chancellor with reference to the result of such inspection or inquiry, and the Vice-Chancellor shall communicate to the Executive Council the views of the State Government with such advice as the State Government may offer upon the action to be taken thereon.
(5) The Vice-Chancellor shall then within such time as the State Government may fix, submit to it a report of the action taken or proposed to be taken by the Executive Council.
(6) If the University authorities do not within a reasonable time, take action to the satisfaction of the State Government, the Government may, after considering any explanation which the University authorities may furnish, issue such directions as it may think fit, and the University authorities shall be bound to comply with such directions.
(7) The State Government shall send to the Chancellor a copy of every report of an inspection or inquiry caused to be made under sub-section (1) and of every communication received from the Vice-Chancellor under sub-section (5) and of every direction issued under sub-section (6) and also of every report or information received in respect of compliance or non-compliance with such direction
(8) Without prejudice to the provisions of sub-section (6) if the Chancellor on consideration of any document or material referred to in sub-section (7) of this section including any report of an inquiry held before the commencement of this Act, is of opinion that the Executive Council has failed to carry out its functions or has abused its powers, he may, after giving it an opportunity of submitting a Written explanation, order that in supersession, of the said Executive Council, an ad hoc Execution Council, consisting of the Vice-Chancellor and such other persons not exceeding ten in number as the Chancellor may appoint in that behalf including any member of the superseded Executive Council, shall for such period not exceeding two years as the Chancellor may from time to time specify, and subject to the provisions of sub-section (11), exercise and perform all the powers and functions of the Executive Council under this Act.
(9) Nothing in Section 20 shall apply to the composition of the ad hoc Executive Council that may be constituted under sub-section (8).
(10) Upon an order being made under sub-section (8), the term of office of all members of the Executive Council superseded thereby, including ex officio members, shall cease and all such members shall vacate their offices as such.
(11) During the period of operation of an order under sub-section (8), the provisions of this Act, shall have effect subject to the following modifications, namely -
(a) in Section 20, after sub-section (5), the following sub-section shall be deemed inserted :
(6)'A meeting of the Executive Council shall be held at least once every two months';
(b)in Section 21, in sub-section (1), after the words 'subject to the provisions of this Act', the words 'and subject also to the control of the Chancellor' shall be deemed inserted;
(c)in Section 24, in sub-section (2), the words 'and shall upon a requisition in Writing signed by not less than one-fourth of the total membership of the Court' shall be deemed omitted
(12) A fresh Executive Council shall be constituted in accordance with the provisions of Section 20 with effect from the expiration of the period of operation of an order under sub-section (8).
(13) Any Statute, Ordinance, Regulation or other rules made during the period of operation of order under sub-section (8), in accordance with the provisions of this Act, as deemed modified by virtue of the provisions of sub-section (11) shall, notwithstanding the expiration of such period, continue in force until amended, repealed or rescinded in accordance with the provisions of this Act."
16. A bare perusal of the aforesaid statutory provision indicates that the State Government has the right to cause an inquiry to be made in respect of any matter connected with the administration and finances of a State University. Any illegality committed in appointment of a teacher and any illegality / irregularity committed by a teacher in his working, are matters connected with the administration of the Universities. Payment of salary to a teacher who has been appointed in an illegal manner, is a matter connected with the finances of the Universities. Therefore, the State Government has power under Section 8 (1) of the State Universities Act to get an inquiry conducted in respect of allegations regarding illegal appointment of a teacher as also regarding irregularities committed by him in performance of his duties.
17. Before the Writ Court, it was submitted on behalf of the petitioner that the State Government has no power to order such an enquiry under Section 66-A and 12(2) of the State Universities Act and case-laws were submitted in support of that submission. This submission was rightly accepted by the Writ Court as the aforesaid Statutory provisions are not attracted to such a situation. However, the provisions of Section 8 of the State Universities Act were not placed before the Writ Court and, therefore, the same escaped attention of the Writ Court. Since the effect and scope of the provision contained in Section 8 of the State Universities Act is purely a legal question, the same can be raised and entertained for the first time in this Intra Court appeal. The learned Counsel for the respondent no. 1 rightly did not raise any objection against this point being raised for the first time in this Special Appeal.
18. In the case of Anand Kumar Mishra v. State of U.P., 2022 SCC OnLine All 311, the issue involved was regarding the scope of powers of the State Government under Section 13 of the U.P. King George's Medical University Act, 2002, which reads as under:-
"13 (1) The State Government shall have the right to cause an inspection to be made by such person or persons. as it may direct, of the University including its buildings, libraries, laboratories, workshops and equipment and also of the examinations teaching and all other works conducted or done by the University or, to cause an inquiry to be made in the like manner in respect of any matter connected with the administration and finances of the University.
(2) Where the State Government decides to cause an inspection or inquiry to be made under sub-section (1), it shall inform the University of the same through the Registrar, and any person nominated by the Executive Council may be present at such inspection or inquiry as representative of the University and he shall have the right to be heard as such: Provided that no person shall appear, plead or act as legal practitioner on behalf of the University at such inspection or inquiry.
(3) The person or persons appointed to inspect or inquire under sub-section (1) shall have all the powers of a civil court, while trying a suit under the Civil Procedure Code, 1908, for the purposes of taking evidence on oath and of enforcing the attendance of witnesses and compelling production of documents and material objects, and shall be deemed to be a civil court within the meaning of sections 345 and 346 of the Criminal Procedure Code, 1973, and the proceedings before him or them shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Penal Code, 1860.
(4) The State Government shall address the Vice Chancellor with reference to the result of such inspection or inquiry, and the Vice-Chancellor shall communicate to the Executive Council the views of the State Government with such advice as the State Government may offer upon the action to be taken thereon.
(5) The Vice-Chancellor shall then, within such time as the State Government may fix, submit to it a report of the action taken or proposed to be taken by the Executive Council.
(6) If the University authorities do not, within a reasonable time, take action to the satisfaction of the State Government, the State Government may, after considering any explanation which the University authorities may furnish, issue such directions, as it may think fit, and the University authorities shall be bound to comply with such directions.
(7) The State Government shall send to the Chancellor a copy of every report of an inspection or inquiry caused to be made under sub-section (1) and of every communication received from the Vice-Chancellor under sub-section (5), and of every direction issued under sub-section (6), and also of every report or information received in respect of compliance or non compliance with such directions."
19. Section 13 (1) of the U.P. King George's Medical University Act, 2002 is worded in the same manner as Section 8 (1) of the State Universities Act. While interpreting the aforesaid provision, this Court held that:-
"23. As far as Section 13 is concerned, there is no doubt that the State Government has a right to cause an inspection to be made by such person or persons, as it may direct, of the University including its buildings, libraries, laboratories, workshops and equipment and also of the examinations teaching and all other works conducted or done by the University or, to cause an inquiry to be made in the like manner in respect of any matter connected with the administration and finances of the University. The provision is quite wide in its scope as to the subject matter of such inquiry considering the use of the words "and all other works conducted or done by the University" and "to cause an inquiry to be made in the like manner in respect of any matter connected with the administration and finances of the University". The term ''administration' used therein has a wide import/meaning so as to include any illegal appointment(s) in the University, but then, as is borne out from the provision such inspection or inquiry as envisaged therein is to be conducted by a person other than one involved in the functioning of the University. If any action is to be taken under Section 13, then entire procedure is provided in the said Section itself. There is nothing on record including the counter affidavit filed by the State Government to show that any such procedure was adopted. For example sub Section (2) of Section 13 says where the State Government decides to cause an inspection or inquiry to be made under sub-section (1), it shall inform the University of the same through the Registrar, and any person nominated by the Executive Council may be present at such inspection or inquiry as representative of the University and he shall have the right to be heard as such. Sub-Section (4) requires addressing of report of such inspection or inquiry to the Vice Chancellor who in turn shall place it before the Executive Council with such advice as the State Government may offer upon the action to be taken thereon. A report of the action taken is to be submitted by the Vice Chancellor to the State Government under sub-Section (5). This procedure has not been followed. Nevertheless, the State Government does have wide powers to get an inspection or inquiry conducted under Section 13 of the 2002 Act and also to issue direction to the University under sub-Section (6) if the University fails to take action and the University authorities are bound to comply with such directions and in this case it had sought a report from the University before issuing the order dated 02.06.2020."
(Emphasis added)
20. We are in agreement with the aforesaid view taken by the Single Judge Bench of this Court in Anand Kumar Mishra (Supra), including the view that the inquiry as envisaged in Section 8(1) of the State Universities Act, is to be conducted by a person other than one involved in functioning of the university.
21. The State Government has appointed an Inquiry Committee headed by the Vice-Chancellor of Lucknow University. Section 31 of the State Universities Act provides that the teachers of the University shall be appointed by the Executive Council of the University. As per Section 30 (2) of the State Universities Act, the Vice-Chancellor is the Chairman of the Executive Council.
22. In these circumstances, the Vice-Chancellor ought not to have been made the Chairperson or even a Member of the Inquiry Committee. Therefore, while holding that the State Government has power to institute an inquiry in respect of allegations levelled against the respondent No.1, we are of the view that the Constitution of the Inquiry Committee in so far as it is headed by the Vice-Chancellor of the Lucknow University, is not correct and the State Government should constitute a fresh Committee in which no person involved in the functioning of the Lucknow University shall be a Member as per the law laid down in Anand Kumar Mishra (Supra). Further, the State Government shall follow the procedure laid down in Section 8 of the State Universities Act.
23. The other two judgments cited by the learned A.A.G., namely State of U.P. v. Neeraj Awasthi & Ors. and Nishith Rai v. State of U.P., (supra) do not deal with the provisions of the State Universities Act or any other statutory provision similar thereto and, therefore, those judgments are not relevant for decision of the present appeal.
24. The judgments in the cases of Rakesh Ranjan Verma v. State of Bihar and Smt. Rekha Yadav v. State of U.P. (supra) cited by the learned Counsel for the respondent no. 1 also do not deal with the provisions of the State Universities Act or any other statutory provision similar thereto and, therefore, those judgments are also not relevant for decision of the present appeal.
25. Accordingly, the Special Appeal is hereby allowed in part. The judgment and order dated 10.05.2022 passed by the Writ Court in Writ-A No.9049 of 2020 is set-aside to the extent it holds that the State Government has no authority to get an enquiry conducted in respect of the allegations levelled against the respondent no. 1. However, the Office Memorandum dated 08.01.2025 constituting the Enquiry Committee is set aside for the reason that the Vice-Chancellor of the University cannot be the Chairman/Member of the Enquiry Committee. The State Government shall be at liberty to constitute a fresh Inquiry Committee consisting of persons not involved in the functioning of the University and to proceed afresh keeping in view the provisions contained in Section 8 of the State Universities Act.
26. Parties to bear their own costs of litigation.
(Subhash Vidyarthi J.) (A. R. Masoodi J.)
Order Date: 10.03.2025
-Amit K-
