Saturday, October 10, 2015

उत्तर प्रदेश माध्यमिक शिक्षा सेवा चयन आयोग के अध्यक्ष अयोग्य घोषित

4:38 PM

Court No. - 10 
Case :- WRIT - A No. - 53013 of 2015 
Petitioner :- Jitendra Kumar Goel 
Respondent :- State Of U.P. & 3 Others 
Counsel for Petitioner :- S.K. Mishra 
Counsel for Respondent :- C.S.C.,A.K. Yadav,Avnis Tripathi
Hon'ble Arun Tandon,J.
Hon'ble Ashwani Kumar Mishra,J. 
1. This petition filed under Article 226 of the Constitution of India seeks issuance of a writ of quo warranto, restraining respondent no.4 Dr. Sanil Kumar from holding the office of Chairman of the U.P. Secondary Education Service Selection Board (hereinafter referred to as 'Board'), constituted under the U.P. Secondary Education (Service Selection Boards) Act, 1982 (hereinafter referred to as 'Act of 1982') on the ground that he lacks essential qualification for appointment to such office. It is also alleged that no fair and transparent procedure in consonance with Article 14 of the Constitution of India has been followed in the matter of such appointment. 
2. While entertaining the writ petition following orders were passed by us on 16.9.2015:-
"Heard learned counsel for the parties and perused the record.
Not only the eligibility of respondent no.2 (U.P.Secondary Education Services Selection Board, Allahabad) is under challenge it is also submitted that absolutely no procedure known to law was followed in the matter of such selection. The counsel refers to the judgment in the case of Gorakpur University affiliated Teachers Association, Writ Petition No.38658 of 2015 dated 7.9.2015 for proposition that there has to be a transparent procedure before any appointment under the Statute can be made.
We are not passing any interim order today as in our opinion, it would not be appropriate that respondents may produce the original records in the matter of consideration of the claim of respondent no. 4 for the post of Chairman of the Selection Board and he have an opportunity to respond to the law as has been explained in the case of Gorkpur University affiliated to Teachers Association (supra).
Put up on 21.9.2015. " 
On 21st of September, 2015 we passed following orders:- 
"On the request of learned Standing Counsel put up this matter day after tomorrow i.e. 23rd September, 2015 along with Writ-A No. 36228 of 2015, in order to enable him to produce the records and to explain to the Court as to whether any transparent procedure had been followed in the matter of appointment on the post of Chairman of U.P. Secondary Education Services Selection Board or not. " 
Again on 29.9.2015, the matter was adjourned on the request made by counsel appearing for respondent Dr. Sanil Kumar, in order to enable him to file a counter affidavit. As per the liberty granted, a counter affidavit has been filed by Dr. Sanil Kumar, which is taken on record. 
3. Pursuant to our orders passed on 21.9.2015, learned Standing Counsel has produced the original records, relating to appointment of respondent no.4 Dr. Sanil Kumar, as Chairman of the Board. The original records produced are in the shape of two separate files, bearing same number. One of the files, which contains note sheets, is paginated whereas the other file has no pagination, documents are kept randomly. 
4. The records have been examined by us in presence of the counsel for the petitioner, Standing Counsel for the U.P. Secondary Education Service Selection Board, Allahabad and State of U.P., and Sri P.N. Saxena, Senior Advocate, assisted by Sri Avnis Tripathi, Advocate, for the respondent no.4 Dr. Sanil Kumar. 
5. A perusal of record produced goes to show that in the note sheet, reference is made to filing of Writ Petition No.36228 of 2015, wherein appointment of respondent nos.4 to 6 of the said writ petition, as members of the Board, had been challenged and an interim order has been passed on 6.7.2015, restraining the concerned respondents from functioning as member of the Board, including Smt. Anita Yadav, respondent no.4 in the said petition, who was officiating as Chairman. Thereafter, there is an hand written note at page 205 dated 15.7.2015, which reads as under:- 
''d`i;k v/;{k in ij fu;fer egkuqHkko dks ukfer djus ij Hkh fopkj djuk pkgsaA'' 
Aforesaid note dated 15.7.2015 has been signed by the concerned Minister of the Department. On the very next page i.e. page no.206, an order of the same date, duly signed by the concerned Minister, Chief Secretary of the State of U.P. and the Chief Minister to the following effect is recorded:- 
"Mk0 lfuy dqekj] izkpk;Z] yksd jk"Vªh; egkfo+|ky;] tljkuk] fQjkstkckn] ftudk vkReo`Rr i=koyh ij jf{kr gS] dks rkRdkfyd izHkko ls nks o"kZ ds fy, m0iz0 ek/;fed f'k{kk lsok p;u cksMZ dk v/;{k ukfer@fu;qDr fd;k tkrk gSA
d`i;k vkSipkfjd vkns'k rRdky fuxZr fd;s tk;sA" 
6. From the records, it is clear that prior to 15th July, 2015, there exists no deliberation mention for nomination of suitable person as a Chairman of the Board. There is also no reference of any application having been received or invited for the purposes. The record is absolutely silent about any initiation of transparent process for appointment to the post of Chairman of the Board. 
7. We find that in the other file produced by the Standing Counsel, a bio-data of Dr. Sanil Kumar is available, but it is surprising to note that neither it bears any date, nor there is any covering letter forwarding the same to the State and it cannot be deciphered as to when this bio-data was received in the office of the State Government, and as to how or through whom, so as to be inducted into the official record. 
8. In bio-data respondent no.4 Dr. Sanil Kumar has described himself, as the Principal of "Lok Rashtriya Mahavidyalaya, Jasrana, Firozabad". 
9. We may record that it is admitted to the respective counsels appearing for the parties, including the counsel for respondent no.4 that on the relevant date, Dr. Sanil Kumar was substantially holding the post of Teacher in the concerned degree college and was officiating as its Principal. There is, thus, a deliberate concealment of fact in the bio-data that Dr. Sanil Kumar was not the regular Principal nor he had been appointed as regular Principal till date. There is a clear misstatement of fact in the bio-data. We are further surprised to note that the second file, which has been produced before us, bears no pagination. We are not able to understand as to how such bio-data could be inducted in this file and at whose instance. In our opinion, the State is expected to act fairly and to ensure that the records are maintained in a proper manner, which reflects transparency. We disapprove the practice of inducting of documents in a government file without pagination and that to without a corresponding order on the note sheet. 
10. We proceed to decide the writ petition on the basis of materials, which have been made available to us. 
11. Board is constituted under the Act of 1982. Section 4 provides for composition of Board. Sub-section (2) of section 4 lays down the qualification for appointment as Chairman. Section 4(1) & (2) which are relevant for the present purposes are reproduced:- 
"4. Composition of the Board:-
(1) The Board shall consist of a Chairman and ten members who shall be appointed by the State Government. 
(2) A person shall not be qualified for appointment as Chairman unless he,-
(a) is or has been a Vice-Chancellor of any University established by law; or
(b) is or has been in the opinion of the State Government an outstanding officer of the Administrative Service not below the rank of Secretary to the State Government or Director of Education, Uttar Pradesh;
(c) is in the opinion of the State Government, an eminent person having made valuable contribution in the field of education." 
12. Sri P.N. Saxena, learned Senior Advocate on behalf of the respondent no.4 Dr. Sanil Kumar, specifically stated before us that respondent no.4 does not fall within the category of section 4(2)(a) & (b) and that his case falls in the category covered vide section 4(2)(c) of the Act. 
13. It has been categorically stated before us by the counsels appearing for all the respondents that there are no other records, pertaining to the selection on the post of Chairman of the Board, except what has already been noticed above, and that no procedure in the matter of such selection is discernible from the records, as are available. 
14. A Division Bench of this Court in Public Interest Litigation No.35375 of 2015 (Gorakhpur University Aff. College Teacher Asso. & Another vs. State of U.P. & Others) had an occasion to interpret an identically worded provision contained in section 4(2)(g) of the U.P. Higher Education Service Selection Board Act, 1980, relating to appointment of Chairman of U.P. Higher Education Service Selection Board. Section 4(2)(g) of the Act of 1980, which fell for consideration of the Division Bench, reads as under:- 
"4. Composition of the Commission.- 
(2) No person shall be qualified for appointment as Chairman unless he-
(g) is in the opinion of the State Government an eminent person having made valuable contribution in the field of education." 
15. Challenge had been made to the appointment of Chairman of the U.P. Higher Education Services Selection Board on the ground that the incumbent lacked qualification for the office and no procedure known to law had been followed. The Bench on the question of fairness of the procedure to be followed for making appointment observed as follows:- 
"Admittedly, the State Government has not issued any notification furnishing an intimation that there are vacancies in the Commission or that it intends to fill up one or most posts of member in the Commission. Any application which is received by the State Government for appointment is examined by the Higher Education Department from among the aspirants. This indicates that only persons, who are in knowledge of the fact that there is a vacancy in the office of the Commission, can apply and it is these applications alone which are considered by the State Government. Under Section 4 (1) the Commission is to have a Chairperson and not less than two and not more than six members. There is no intimation or information of how many persons the State Government intends to appoint as members. No effort whatsoever is made to follow a transparent or objective process by which due publicity is given to the fact that the State Government is in the process of filling up vacancies in the Commission. The procedure, which has been followed by the State, does not inspire public confidence and is liable to result in a situation where nepotism and patronage have precedence over academic standing and credentials in making appointments to the Commission. Evidently, persons who are in knowledge of the fact that there is a vacancy in the Commission, are the only persons who apply. Such information would not be available to those in the teaching community or even otherwise to the community from whom the eligible are drawn. Persons who fulfil the norms of eligibility under clauses (a), (b) and (c) and teachers fulfilling them under clauses (d), (e) and (f) would have no knowledge of the existence of a vacancy which is not notified, or of the existence of which information is not widely disseminated. The legislature in its wisdom has contemplated eligibility for membership of the Commission of persons from diverse backgrounds. Clause (a) brings in experience in the law, at a senior level of a District Judge, clause (b) of the experience of administration as a Secretary level IAS officer, clause (c) as a Vice Chancellor and clauses (d), (e) and (f) cover Professors and Principals of Post Graduate and Degree Colleges with a certain experience. Unless the likelihood or existence of a vacancy is notified, eligible persons would not have the opportunity to apply for appointment. Instead, the process is shrouded in secrecy and appointments are made from among those who know of a vacancy and of the fact that the State Government would be filling up the vacancy. This aspect must, in our view, be of primary emphasis because the Supreme Court has repeatedly, in recent decisions, emphasised the need to maintain institutional integrity in filling up important public posts under the control of the State Government. Statutory Commissions, such as the one in the present case, are conceived in public interest and discharge public functions. Their membership cannot be regarded as an instrument of conferring largesse on a chosen few.
The Commission, in the present case, has been set up with a statutory objective of ensuring transparency in the process of making appointments of teachers to constituent and affiliated colleges. No appointment of a teacher in any constituent or affiliated college can be made, save and except through the auspices of the Commission. The Commission has a vital role to play in ensuring that right persons are selected for appointment as teachers in colleges. These teachers ultimately will guide the destiny of a generation which has to receive education in diverse colleges across the State. If the persons, who have to make these appointments of teachers in constituent and affiliated colleges, are chosen through a process which is not transparent, objective and fair, the Commission cannot be expected to perform its function with objectivity and fairness. Such back door appointments of persons, who have access to the State Government; without a proper evaluation of credentials of competent persons drawn from diverse sources prescribed in Section 4 (2-a); in the absence of a transparent and objective procedure for notification of vacancies, short listing and consideration of prospective candidates results in a negation of the very object for which the Commission was set up." (Emphasis supplied by us) 
16. The Bench also examined the import of terms "an eminent person having made valuable contribution in the field of education", precisely the term which occurs in the present case. It has been held as under:-
"Now, it is in this background that it would be necessary to interpret clause (g) of sub-section (2-a) of Section 4. Clause (g) postulates the fulfilment of two conditions for the formation of opinion by the Government. The first condition is that a candidate must, in the opinion of the State, be an eminent person. The second requirement is that the candidate must have made a valuable contribution in the field of education. The first criterion is a criterion of eminence. The expression 'eminence' has not been defined by the state legislature and must, therefore, bear its ordinary connotation and meaning. The expression 'eminence' has been defined in the Shorter Oxford English Dictionary to mean "distinguished in character or attainments". The Random House Dictionary of the English language defines the expression 'eminent' to mean "high in station, rank, or repute; distinguished". Webster's New Twentieth Century Dictionary of the English language defines the expression 'eminent' to mean "standing high by comparison with others; renowned; exalted; distinguished". The meaning which is ascribed to the expression 'eminent' in these dictionaries bears a common sense understanding of the expression. The second requirement which is equally significant is that the person should have made a valuable contribution, not just a contribution, and that it should be in the field of education. The formation of the opinion by the State Government must be on the basis of objective material. Clause (g) of sub-section (2-a) cannot, in other words, be utilized as a catch-all remedy to bring in persons who are not otherwise eligible under clauses (d), (e) and (f). We do notice that it may well be that a person who does not fall in one of the categories spelt out in clauses (a) to (f), may, nonetheless, be in the opinion of the State Government an eminent person with a valuable contribution in the field of education. Such an opinion must be founded on material and will not rest upon a subjective view unsubstantiated by demonstrable credentials. The point to note is that in the guise of making an appointment under clause (g), the State Government cannot obviate observance of the eligibility requirements which are specified in clauses (d), (e) and (f). Otherwise, it would be a very negation of the object and purpose of the statute. As the tabulated statement placed before the Court indicates, since 1 January 2012, appointments as members have been predominantly made by taking recourse to the provisions of clause (g). Persons who are not Professors or Principals fulfilling the requirement of clauses (d), (e) or (f) are sought to be appointed by taking recourse to the provisions of clause (g)."
17. After noticing the respective qualifications held by the respondents in the aforesaid writ petition, this Court observed that the qualification of doctorate and teaching experience per se would not qualify to confer distinction of "an eminent person having made a valuable contribution in the field of education". Following observations appear at page 26 of the judgment in the case of Gorakhpur University (supra):-
"The third, fourth and fifth respondents hold Doctoral degrees. The issue is whether ex facie the bio-datas of the candidates, which are relied upon by the State, indicate that they are, in the opinion of the State, eminent persons having made a valuable contribution in the field of education. The third respondent held the post of an Associate Professor in a Post Graduate College between 29 September 2007 to 13 December 2013. As an Associate Professor, the third respondent does not meet the eligibility condition under clause (d) of sub-section (2-a) of Section 4, which is of being a Professor. The only credentials which are specified in the bio-data, which is annexed to the counter affidavit, are that the third respondent has been a Proctor, Centre Superintendent, Convenor of the Admission's Committee, Incharge of Adult Education, Games Superintendent, Member of Board of Studies and Examiner for Ph.D. dissertations. Ex facie, these are not indicia of a person who can be referred to as an eminent person having made a valuable contribution in the field of education. The third respondent may have experience as a teacher, but the requirement under clause (g) is not of appointing an experienced teacher as a member of the Commission, but of appointing an eminent person who has made a valuable contribution in the field of education. The appointment is ultra vires the statutory provision. "
Following conclusions have been arrived at in view of the principles laid above:-
"The basic infirmity in the modalities which have been adopted by the State is of not having followed any transparent or objective procedure in making appointments to the Commission. In Ram Tawakya Singh v. State of Bihar8, the Supreme Court, while considering the provisions of the Patna University Act, emphasised that Article 14 of the Constitution which mandates that every action of the State must be fair and transparent has to be read in the language of those provisions in which event, the Chancellor has to follow some mechanism whereby he can prepare a panel by considering persons of eminence in the field of education, integrity, high moral standard and character. In the present case, the State Government has not published or notified vacancies in the Commission. Nor has it notified at any stage that it was in the process of filling up vacancies in the office of members of the Commission. As a result, persons who are otherwise eligible and fulfil the requirements of eligibility under clauses (a) to (g), had no opportunity to be considered for appointment to the Commission. Secondly, the State Government did not prepare a panel of short listed candidates from which the ultimate selection could be made. Instead, what has been done, is that applications and bio-datas from aspirants which were received were scrutinized and after having them vetted in the Higher Education Department, were approved at the "highest competent level". The norms on the basis of which the applications were scrutinized have not been specified. There has been no competitive evaluation of the merits of various candidates. As they came and applied, so were they inducted as members. The modalities which the State has adopted are arbitrary and violative of Article 14 of the Constitution. 
We are conscious of the fact that when an appointment has to be made of an eminent person with a valuable contribution in the field of education, a person who truly fulfils the requirement may not apply for such a position. A truly eminent person will not deign to be a supplicant for favours. In order to consider the appointment of a person who genuinely fulfils the description of clause (g) of sub-section (2-a) of Section 4, the least that can be expected is that the State Government should constitute a Search Committee consisting of persons with an objective track record, which would scrutinize the credentials, standing and integrity of candidates under consideration. In the entire process which has been followed by the State Government, one factor which is absent is any consideration of the integrity of the candidate. The Commission plays an important role in the appointment of teachers. Candidates who are appointed as members of the Commission must possess impeccable credentials and a proven record of integrity. In the absence of any application of mind to these aspects, the process has been entirely flawed. The Advocate General urged that Vice Chancellors and Professors may not be willing to come forth and serve as members. The point is that there is no fair way that such an assumption can be made a priori, when the Government did not set in motion a process that would consider the merits of prospective candidates. 
The procedures which the State adopts in making appointments to posts of members in a statutory commission like the Higher Education Service Commission must be consistent with the standards and norms of fairness, which animate Article 14. Structural fairness in the decision making process leading up to the ultimate appointment of a member of the Commission is a requirement of the guarantee of equality and equal opportunity. These norms must be observed so that institutional processes meet the need for fair, transparent, objective and accountable governance. Basically, fair procedure in making appointments to the position of a member in the Commission must involve four stages:
(I) Formulation;
(ii) Opportunity;
(iii) Decision making; and
The stage of formulation involves agenda setting and laying down procedures antecedent to decision making. This has to be laid down in a manner which is consistent with the governing statutory provision. The stage of formulation would among other things cover the manner in which vacancies would be notified so as to be brought to the knowledge of the field of eligible candidates under the statute. It must involve the constitution of a Committee or team - consistent with the statute - for processing the nominations or applications received. The stage of formulation may involve the constitution of a Search Committee which can tap the best candidates. The stage of formulation also involves setting down procedures which will be followed and time - lines. The second stage involving opportunity enables interested and eligible persons to respond to the notification so that candidatures across a broad spectrum of sources indicated in the statute are considered. If a Search Committee has been constituted, the Committee will facilitate the process of identifying prospective candidates. Personnel forming part of the Search Committee must possess knowledge, administrative experience and domain expertise. Members of the selection panel or Search Committee must be subject to rules of exclusion on the ground of bias and conflict of interest. The third stage of decision making involves the assessment of candidatures on the basis of applicable statutory norms. Where appropriate, a procedure of short listing may be envisaged where the number of candidates is large. The final stage is the stage of selection. Decision making must be based on eligibility and suitability as defined by the statute. There must be documentation of the process at each stage. The material on the basis of which the decision is arrived at must show an application of mind to the credentials, competence and integrity of candidates. We have indicated the broad parameters and guidelines. The underlying principle is that institutional processes must be well defined, publicised and fair. That will at least in some measure ensure a movement to a system where competence and merit prevail over patronage, transparency prevails over secrecy and the prevailing culture of cynism is replaced by accountable and responsive governance which promotes public confidence in our institutions. 
The learned Advocate General has submitted that the Court can issue a writ of quo warranto where there has been a breach of any statutory rules and if a possible view has been taken, the High Court should not exercise its jurisdiction under Article 226 of the Constitution. As we have indicated earlier, there has been a clear breach of the statutory requirements. This is not a case where two views would have been possible. Moreover, the answer to this submission can best be summarised in the principle of law which has been formulated in the judgment of the Supreme Court in State of Punjab v Salil Sabhlok9, which we respectfully follow. The Supreme Court held as follows: 
"50. ...besides express restrictions in a statute or the Constitution, there can be implied restrictions in a statute and the Constitution and the statutory or the constitutional authority cannot in breach of such implied restrictions exercise its discretionary power. Moreover, Article 226 of the Constitution vests in the High Court the power to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. The power of the High Court under Article 226 of the Constitution is, thus, not confined to only writ of quo warranto but to other directions, orders or writs." 
As we have held, the appointments, which have been made by the State Government in the present case of the third, fourth and fifth respondents, are flawed both for the absence of any fair and transparent procedure as well as on the ground that they failed to fulfil the requirement of clause (g) of sub-section (2-a) of Section 4. 
Before concluding, we may note that in the counter affidavit filed by the State, the locus of the President of the Gorakhpur Affiliated College Teachers' Association (the second petitioner in PIL No.35375 of 2015) has been questioned. However, at the hearing, this objection has not been advanced by the Advocate General. Moreover, no objection to the locus of the petitioner in the second writ petition (PIL No.38658 of 2015) has been urged during the course of submissions. 
For these reasons, we have come to the conclusion that the petitions would have to be allowed. We, accordingly, allow the petitions by issuing a writ of quo warranto, holding that the appointments of the third, fourth and fifth respondents as members of the Uttar Pradesh Higher Education Services Commission are illegal. The appointments are, accordingly, quashed. However, we clarify that this judgment will not of itself invalidate recommendations made by the Commission prior to the date of this judgment. The legality of recommendations and appointments made in the meantime, on any independent ground will be adjudicated upon in the event of a substantive challenge made in appropriate proceedings. In consequence, we direct the State Government to complete the process of reconstituting the Commission consequent upon the setting aside of the appointments of the third, fourth and fifth respondents, after laying down appropriate norms consistent with the statute and by following a process which is objective, fair and reasonable, in accordance with the mandate of Article 14 of the Constitution. "
18. The judgment aforesaid has been followed in a subsequent Public Interest Litigation No.47935 of 2015 (Rural and Urban Development and Research Association vs. State of U.P. and others). At page 24 of the judgment it has been held as under:-
"For these reasons, we are of the view that the writ petition has to succeed on both counts namely (i) the appointment of the third respondent was without following any norm or procedure consistent with Article 14 of the Constitution; and (ii) the third respondent did not fulfil the statutory requirements of eligibility to hold the post of a Chairperson of the U.P. Higher Education Services Commission. The petition is, accordingly, allowed by the issuance of a writ of quo warranto, as prayed, and by setting aside the appointment of the third respondent. "
19. We are in complete agreement with the principles laid down by the Division Bench, in the aforesaid two judgments, which we intent to follow in the present case as well.
20. In view of the aforesaid, we are of the considered opinion that the present writ petition must also succeed on both the counts urged by the petitioner before us, namely that the appointment of respondent no.4 Dr. Sanil Kumar was made, without following the norms consistent with Article 14 & 16 of the Constitution of India and that there has been a complete non-application of mind at the instance of the authorities of the State on the aspect relating to respondent no.4 being an eminent person having made valuable contribution in the field of education.
21. We have already recorded that the only material available on record of the State to consider the question was the bio-data of Dr. Sanil Kumar which contained specific misstatement of fact with regard to the nature of his appointment qua the post of principal held by him in the institution concerned.
22. In our view, such false disclosure in the bio-data by respondent no.4 itself is a sufficient ground to non-suit Dr. Sanil Kumar from the office of Chairman of the Board which has the statutory duty of selecting teachers and principals to the secondary schools situated throughout the State of U.P.
23. The importance of the task to be performed by the Commission and the overwhelming public interest involved in due observance of the cause can hardly be overemphasized. We are pained to observe the casual manner in which such important public offices are being filled by the State. We further record that there was no material before the State Government to form an opinion, that the respondent no.4 satisfies the requirement of section 4(2)(c) of the Act of 1982, as explained by the Division Bench of this Court in the case of Gorakhpur University (supra) and Rural & Urban Development and Research Association (supra).
24. The records further show that in fact no satisfaction has been recorded in the records of the State that Dr. Sanil Kumar is an eminent person having made valuable contribution in the field of education, so as to consider him for the office in question. Even otherwise, we are satisfied that on record no material exists, on the basis of which any prudent person could come to a conclusion that respondent no.4 is an eminent person who had made valuable contribution in the field of education.
25. The writ petition, therefore, is allowed by issuing a writ of quo-warranto holding that the appointment of Dr. Sanil Kumar as Chairman of the Board is illegal and the same is, therefore, quashed.
26. There shall be no order as to costs.
Order Date :- 5.10.2015
Ashok Kr.
(Ashwani Kumar Mishra, J.) (Arun Tandon, J.) 

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