Court No. - 29 Case :- WRIT - A No. - 31754 of 2009 Petitioner :- Dr. Nisha Singh Respondent :- State Of U.P. Thru' Principal Secy. & Others Petitioner Counsel :- G.K. Singh,V.K. Singh Respondent Counsel :- C.S.C.,Anil Tiwari Hon'ble Sunil Ambwani,J.
Hon’ble Kashi Nath Pandey,J.
Heard Sri G.K.Singh, learned Counsel for the petitioner. Shri
Dharmendra Shukla holding brief of Sri Anil Tiwari appears for
the respondent University.
In Writ Petition No. 3657 of 2009 (Anukul Chand Rai Vs. State of
U.P. & others) was filed in the matter of selection of Lecturer in
Hindi in Mahatma Gandhi Kashi Vidya Peeth Varanasi for which
interviews were held on 10.09.2007, the Court passed following
orders:-
“We have considered the submissions advanced by counsel for the
parties. As regards the policy decision taken by the Chancellor that no
selection be held during the last three months of the tenure of the Vice
Chancellor it is enough to say that this question does not arise in the facts
of the present case inasmuch as the selections were held in September,
2007 which is more than three months away from the date of retirement
of the then Vice Chancellor. What is actually in dispute in the present
case is a factual question as to whether in the meeting dated 24.12.2007 of
the executive council a decision was taken accepting the
recommendations of the selection committee or not. In para 28 of the
counter affidavit filed on behalf of the University as well as in para 28 of
the counter affidavit filed on behalf of the Chancellor the stand taken is
that the executive council resolved to accept the recommendations of the
selection committee without opening the envelops and that the
recommendations of the selection committee were not placed before the
executive council and were kept in sealed envelops. Sri Neeraj Tripathi
counsel for the Chancellor and Sri Anil Tiwari counsel for the University
drew our attention to the resolution dated 24.12.2007 and pointed out
that it does not contain the names of the candidates who had been
selected or in respect of whom the recommendations had been accepted.
It is rather a list of subjects in which the recommendations have been
made. It is thus being disputed by the University as well as on behalf of
the Chancellor that any decision accepting the recommendations of
particular candidates was actually taken by the Executive Council
inasmuch as the same could not have been done without opening the
sealed envelops. It appears that the University had remitted the
proceeding of the selection committee or consideration of the Chancellor
under Section 31(8)(a) of the U.P. State Universities Act and the
Chancellor by his order dated 7.7.2008, copy of which has been annexed
as Annexure 20 to the counter affidavit of the University has remitted the
matter back to the executive council for taking a decision. In the
circumstances a question of fact has arisen as to what transpired before
the executive council in its meeting dated 24.12.2007 and as the executive
council is the competent authority to take a decision regarding
acceptance or refusal of the selection committee recommendations, it
appears to be appropriate that while taking a decision in respect of the
recommendations made by the selection committee the executive council
may consider the aspect also. The decision may be taken preferably
within two months from the date a copy of this order is filed by the
petitioner. The writ petition is accordingly disposed of.”
In its meeting dated 22.5.2009 under the Chairmanship of the Vice
Chancellor, the Executive Council took up the matter at Item
No.25. After referring to the orders of the High Court in the Writ
Petition Nos.21156 of 2008 and 3657 of 2009 the Executive
Committee considered the recommendations of the Selection
Committee dated 09.9.2007 and 10.9.2007. In its decision after
reading the orders of the High Court in the aforesaid writ petition,
the Executive Committee opened the envelops containing the
recommendations of the Selection Committee held in the period of
previous Vice Chancellor on 09.9.2007 and 10.9.2007. The
Executive Committee decided to defer the matter of issuing
appointment letter to the Lecturer in Music-Sitar reserved for
Scheduled Castes in the Department of Drama on the ground that
the Vigilance Enquiry is pending against Dr. Snehlata Prabhakar
recommended by the Selection Committee. In respect of Lecturer
in English in which two posts were reserved for Scheduled Castes
and one for OBC and in respect of Lecturer in Hindi only one post
was unreserved and one for OBC, the Executive Committee
considered the information given by the Chairman of the
Committee that in respect of appointment of Lecturer the presence
of two experts is necessary. If one of the expert does not attend the
meeting, his written consent is required and since the written
consent is not available in case of Lecturer in English, the
recommendation of the Selection Committee was not accepted and
it was decided to readvertise the post.
In respect of post of Lecturer in English with which we are
concerned in this case, the Selection Committee on the information
given by the Chairman of the Executive Committee found that the
Selection Committee was not properly constituted as there was
only one expert. The Executive Committee found that the
composition of the Selection Committee was bad, and thus
rejected the recommendation and decided to readvertise the post.
Learned Counsel for the petitioner states that the Government
Order dated 29th March, 1994 issued in pursuance of the U.P. Act
No. 4 of 1994 is not applicable in terms of para 41 of the Division
Bench decision of this Court in Dr. Ram Niwas Pandey Vs. State
of U.P. in Writ Petition No. 876 (SB) 1994 decided on September
11, 1996 reported in 1996 (3) U.P.L.B.E.C. 1869. Sri G.K.Singh
further submits that under Section 31(8)(a), if the Executive
Council for any reason did not agree with the recommendations
made by the Selection Committee the matter should have been
referred to the Chancellor alongwith the reasons of such
disagreement.
We prima-facie find that the Executive Council did not carry out
the orders of this Court in firstly finding whether it had opened the
envelops in its earlier meeting dated 24.12.2007 to take a decision
on acceptance or refusal of the Selection Committee’s
recommendations and in any case if the Executive Council
disagreed with the recommendations of the Selection Committee,
the matter should have been referred to the Chancellor.
It is submitted by Sri Dharmendra Shukla that disagreement
referred under Section 31(8)(a), does not include the findings on
the defect in the composition and validity of the Selection
Committee. It is submitted that where the Selection Committee
itself is not properly constituted, the disagreement cannot be
referred to the words ‘does not agree’ under Section 31(8)(a) of the
Act.
Sri G.K.Singh submits that Section 66 of the Act takes care of
such an objection and that in the proceeding the Selection
Committee’s recommendations can not be invalidated on such
defect.
We are of the opinion that in case of disagreement with the
Selection Committee, the Executive Council has no powers to
reject the recommendation and to readvertise the post. In all the
events in which the Executive Council does not agree with the
Selection Committee, the matter has to be referred by it to the
Chancellor. The words ‘does not agree’ will cover all the
circumstances including any defect in the composition of the
Selection Committee.
On almost similar grounds and on same legal position, we have
allowed Writ Petition No. 31698 of 2009 Anukul Chand Rai vs.
State of UP and others on 19.3.2010, in which the selection on the
post of Lecturer in Hindi was in issue.
The writ petition is accordingly allowed. The decision of the
Executive Council on the issue of appointment of Lecturer in
English is declared to be invalid and violative of Section 31(8)(a)
of the Act. The Executive Council is directed to refer the matter to
the Hon’ble Chancellor for decision. We hope and trust that since
the matter relates to the selections held in the year 2007, the
Hon’ble Chancellor will consider the matter expeditiously.
Order Date :- 15.7.2010
RKP