Court No. - 58
Case :- WRIT - A No. - 25121 of 2018 Petitioner :- C/M Bundelkhand Mahavidyalaya, Jhansi, And Another Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Rajkaran Tripathi,Sanjeev Singh Counsel for Respondent :- C.S.C.,Bhupendra Nath Singh,Siddharth Yadav
Hon'ble Ashwani Kumar Mishra,J.
1. This writ petition is directed against an order passed by the Director of Higher Education dated 5.11.2018, whereby representation made by the petitioner Committee against appointment of respondent nos.6 and 7 has been rejected. The order records that allegation of misrepresentation on part of the contesting private respondents in obtaining appointment is not verified due to weeding out of relevant records, and that the benefit of OBC reservation was extended not only to them but all others, notwithstanding the fact that they were not resident of State of Uttar Pradesh.
2. Brief facts giving rise to the controversy would require a mention at the outset. It appears that advertisement no.20 was published by the U.P. Higher Education Service Commission for selecting teachers to various aided degree/postgraduate colleges. Respondent nos.6 and 7 appear to have applied and they were consequently selected. Appointment orders were issued to them in the year 1996. Their appointment was never challenged by anyone at such stage. It appears that after 12 years these respondents were transferred to the petitioner institution and even at that stage no grievance was raised regarding validity of their appointment. It is only in the year 2015 that the Committee of Management raised an issue with regard to legality of appointment of respondent nos.6 and 7 by filing Writ Petition No.36428 of 2015, which came to be disposed of vide following order passed on 6.7.2015:-
"The petitioner contends that the respondent no.6 and 7 had obtained appointment in the year 1996 on the basis of fraud.
We are conscious of the fact that 20 years have lapsed, but at the same time, law is settled that fraud vitiates all, and therefore, if the allegation made by the petitioner that the respondent no.6 and 7 have obtained appointment by fraud in the year 1996, then this Court will not hesitate in asking the concerned authorities to investigate the matter and to satisfy itself as to whether the allegation made is correct or not?
In view of the aforesaid, we dispose of the present writ petition, requiring the respondent no.2 Director of Higher Education, Allahabad to summon the records with regard to selection and appointment of the respondent no.6 and 7 and to satisfy himself as to whether the appointment offered to the respondent no.6 and 7 is vitiated on account of fraud, if any, or not. Such decision must be taken by the respondent no.2, after affording opportunity of hearing to the respondent no.6 and 7, by passing a reasoned speaking order within a period of eight weeks from the date of receipt of a certified copy of this order. All issues are left open to be considered by the respondent no.2."
3. It is pursuant to this direction that the issue has been examined and the matter stands determined under the order impugned. It may also be relevant to notice that in between an order was passed by the Director, Higher Education on 10th July, 2017 against the contesting respondents, which came to be challenged before this Court by filing Writ Petition No.31149 of 2017, and the writ petition was allowed with following observations on 26.7.2017:-
"We have gone through the impugned order dated 10.7.2017 passed by the Director of Higher Education, Uttar Pradesh Allahabad, we find that the Director of Higher Education has not addressed himself on the point as to whether the petitioners have played any fraud in order to obtain their selection. Hence, we find that the order impugned is vitiated for non- consideration of the direction of this Court, therefore the impugned order dated 10.7.2017 cannot be allowed to remain in force. It is hereby quashed.
The writ petition succeeds and is allowed. The matter is remitted back before the respondent no. 3 for passing a fresh order in accordance with law after giving proper notice looking into the letters and spirit of the orders of this Court dated 6.7.2015 passed in Writ-A No. 36428 of 2015 (C/M Bundelkhand Mahavidyalaya Vs. State of U.P. and others) and order dated 20.12.2016 passed in Writ-A No.50988 of 2016 (C/M Bundelkhand Mahavidyalaya Jhansi and another Vs. State of U.P. and others) and after giving full opportunity of hearing to the petitioners. The petitioners are directed to cooperate with the inquiry. While passing the final order, version of the Higher Education Service Commission be also obtained and considered by the Director of Higher Education."
4. The Director, Higher Education, has observed that the benefit of reservation has been granted to respondent nos.6 and 7 alongwith other persons notwithstanding the fact that they were not the residents of the State of Uttar Pradesh. The order further records that original applications have since been weeded out and the records are no longer available, therefore, it could not be verified as to whether any misrepresentation was made by petitioner in the matter.
5. The order is assailed on the ground that the respondent nos.6 and 7 admitted in para 32 of the earlier writ petition no.31149 of 2017 that they had applied under the General Category and had not claimed benefit of reservation.
6. Learned counsel for the petitioner vehemently urged that misrepresentation is apparent on record, inasmuch as the contesting respondents have clearly admitted that they have not submitted any caste certificated or claimed reservation, yet they have been appointed in the reserved category. It is also stated that records are very much available and the copies have been given under RTI Act, and therefore, the assertion in the order that records have been weeded out is factually incorrect. It is also submitted that the order of Director suffers from non- application of mind with regard to the facts on record, and that earlier findings returned in the order have not been taken note of or reversed.
7. Submission advanced at bar on behalf of the petitioner is opposed by the respondents. It is stated that in the absence of any material or finding to demonstrate that respondent nos.6 and 7 had played any fraud in securing appointment, the authorities were justified in rejecting petitioner's representation.
8. I have heard learned counsel for the parties, and have perused the materials brought on record.
9. It is not in issue that respondent nos.6 and 7 possess requisite eligibility for appointment to the post in question, and they had been appointed after facing open competition in the recruitment exercise undertaken by the Commission. The Court cannot be oblivious of the fact that they have been continuing for the last more than 22 years, without there being any complaint regarding their working. The only ground on which an earlier petition was entertained that misrepresentation and fraud was practised by respondent nos.6 and 7. A finding is returned in the order itself that allegation of fraud or misrepresentation is not substantiated. The averments made in para 32 of the earlier writ petition also would not lead to an inference or a conclusion that respondents had practised fraud. Original records are stated to have been weeded out. Merely because some RTI reply has been given prior in point of time would not be sufficient to interfere with finding that original application of Advertisement No.20 are not available. Even otherwise, the illegality attributed in the appointment is that respondents could not have been allowed benefit of OBC reservation when they were not the residents of State of U.P., in view of the law settled that only a resident of State could be granted the benefit of reservation. Notwithstanding in settled law, the issue itself ought not to be allowed to be raised after inordinate long period of time, when allegation of fraud is not substantiated. In the absence of materials or finding to sustain the allegation that any fraud was practised by the respondent nos.6 and 7, this Court is not inclined to interfere with the matter. So far as the ground urged with regard to non- application of mind is concerned, this Court finds that facts in its entirety have been taken note of and it cannot be said that there is any non-application of mind on part of the authority concerned. So far as the averment that earlier findings have not been dealt with or reversed is concerned, it is to be noticed that there is no specific finding returned against the respondents in the earlier round of litigation, which have been ignored. Even otherwise, the earlier order passed by the Director has already been set aside by this Court, and therefore, the findings returned therein do not survive, which may require any reversal by the Director, at this stage.
10. Writ petition, accordingly, is dismissed.
Order Date :- 29.11.2018 Anil