JUDGMENT Dev Kant Trivedi, J.
1. By means of this writ petition, the petitioner Dr. Ram Roop Shukla has prayer for quashing of the order dated 2.11.1997 passed by the Director of Higher Education an the basis of which the Manager respondent No. 5 issued an order appointing the respondent No. 6 Dr. Ramacharya Misra as the Principal of Nagrik Degree College, Janghai (hereinafter referred to as the College).
2. The case of the petitioner is that on a permanent post of Principal in the College, the petitioner was appointed on ad hoc basis for the period till any regularly selected candidate is selected by the Higher Education Service Commission and joins the post. The petitioner claimed benefit of regularisation of service in terms of the Clause 31 (C) of Higher Education Service Commission and has also filed a writ petition No. 33441 of 1992 which was decided on 24.10.1997 wherein it was held that the benefits of regularisation as the Principal was not available. The respondent No. 4, Higher Education Service, issued an advertisement and declared resolution 15.5.1993. No selection, however, could take place against the post of Principal of the College on account of an interim order dated 16.9.1992 passed in writ petition No. 33441 of 1992 and the communication was sent to the Director of Higher Education in this regard. One Dr. Ramhit Tripathi was assigned to the College but he did not join as the Principal. Thereafter on 31.3.1995, the name of Dr. Hansraj Tripathi was recommended tor the post of Principal of the College. The said order dated 31.3.1995 was challenged by the petitioner in Writ Petition No. 10195 of 1995. The order of the Director of Higher Education dated 31.3.1995 appointing Dr. Hansraj Tripathi as the Principal of the said College, was quashed on 27.4.1995. The case of the petitioner is that since the Director of Higher Education has directed the Commission not to make any selection on the post of Principal of the said College, the appointment of the respondent No. 6 cannot be made.
3. In its counter affidavit, the respondent No. 5 has averred that the petitioner has no locus standi to challenge the appointment of the respondent No. 6. The respondent No. 6 has been given appointment and he has joined the post of Principal of the College on 3.11.1997 and that the respondent No. 6 is working as the Principal which facts have been deliberately withheld by the petitioner while filing the writ petition on 19.11.1997. It is further urged that the petitioner had earlier filed Civil Misc. Writ Petition No. 22704 of 1992, Ram Roop Shukla v. State of U.P. and Ors., for a mandamus commanding the respondents not to interfere in the working and functioning of the petitioner of the said College and not to proceed with the process of selection for the post of Principal. In the said writ petition, an interim order in the following term was, passed on 1.7.1992- .
"List this writ petition with writ petition No. 8106 of 1992 on the date fixed, Until a regularly selected Principal is appointed under the provisions of U.P. Higher Education Service Commission Act, 1980, the petitioner shall not be restrained from continuing merely on the basis of ad hoc appointment, the Ordinance dated 21.11.1996 Annexure No. 6"
4. During the pendency of writ petition No. 8106 of 1992 and 22704 of 1992, the petitioner again filed another writ petition No. 33441 of 1992, Ram Roop Shukla v. State of U.P. and Ors. and again, an interim mandamus was sought commanding the respondents to pay salary to the petitioner and not to interfere in the working and functioning of the petitioner as the Principal of the said College. In writ petition No. 33441 of 1992, the petitioner purposefully did not disclose the fact that he had filed writ petition No. 22704 of 1992 which was still pending in the Court and succeeded in obtaining the following interim order:
"Until further orders of this Court, the respondents are restrained from interfering with the working of the petitioner as the Principal of the Nagrik Degree College, Janghai and shall be paid salary."
5. The petitioner had also filed another writ petition No. 2239 of 1992, the filing of which has concealed when the writ petition No. 22704 of 1992 was filed. The petitioner again filed another writ petition No. 4049 of 1993, Ram Roop Shukla v. State of U.P. and Ors., seeking a mandamus restraining the Higher Education Service Commission from proceeding with the recruitment and selection on the post of the Principal of the College and quashing advertisement No. 18. This writ petition No. 40491 of 1993 was dismissed as withdrawn on 17.2.1994. Then, another writ petition No. 10159 of 1995 was filed without disclosing that he had filed that writ petition No. 2039 of 1992, 22704 of 1992 and 40491 of 1993 and, on account of material of non- disclosure of relevant facts, the petitioner was successful in obtaining the order which is mentioned in the writ petition and, on the basis of which the present writ petition, the appointment of the respondent No. 6 has been challenged.
6. According to the respondent No. 5, the petitioner had himself applied for selection on the/post of Principal in pursuance of the advertisement No. 18/91 in which the respondent No. 6 was selected but the petitioner could not succeed. It is also pleaded that the petitioner is not qualified to hold the office of the Principal inasmuch as he obtained only 50% marks in M.A. while in terms of the status of Gorakhpur University, a candidate for appointment to the office of the Principal must have obtained more than 54% marks in Masters Degree. Since the petitioner had obtained only 50% marks in M.A. Examination, the Higher Education Service Commission did not call him for interview though he had applied for the post of Principal on the basis of the advertisement No. 18/91. However, on account of the interim order of this Court, the petitioner was called for interview but he failed to succeed and, was not selected. It is further pleaded that the petitioner was simply given the charge of the post of the Principal and he was never appointed on ad hoc or officiating by the Committee of Management. The very foundation of the claim of the petitioner that he was appointed on ad hoc basis, is false.
7. According to the respondent No. 5, the petitioner obtained an interim order in Writ Petition No. 33441 of 1992 and 22704 of 1992 by playing fraud on the Court. According to the respondent No. 5, the Commission makes selections against the post of Principles and not against the post of a particular College and moreover, there was no interim order by any Court restraining the Commission from making selections. Therefore, the recommendations in respect of selected candidate respondent No. 6, for appointment on the post of Principal, is in no way, bad particularly when the petitioner was not found successful by the Commission and has no lien or right against the said post.
8. A list of selected candidates prepared by the Commission remains valid till next list is received from the Higher Education Commission in view of the amended provisions of Section 13 of the U.P. Higher Education Commission Act, 1980 as amended by Notification dated 22.11.1991. It is further pleaded that the select list is prepared with 25% more means of,the successful candidates and the petitioner did not occur even among those 25% extra names. According to the respondent No. 5, the appointment of the respondent No. 6 to the post of the Principal of the said College, is wholly justified and the petitioner has no claim to the post of the Principal and even he is not qualified to resume the said post and he failed in the selection, to the said post. The post of the Principal was advertised by means of the advertisement No. 18/91 and no advertisement has been made since then and, therefore according to the respondent No. 5, select list is still operative and appointment was rightly made from the select list. The petitioner's claim that he was still working and functioning and was getting salary and a no-objection certificate was issued by the Manager in this regard, has been assailed as incorrect and it has been pleaded that the document is false, frivolous and fabricated.
9. The respondent No. 6 Dr. Ramacharya Misra, newly appointed Principal of the College, has also contested the petition and has filed counter alleging that the petitioner has not been functioning as the Principal of the said College from 3.11.1997. The petitioner was functioning as the Principal on the basis of an interim order dated 16.9.1992 passed by High Court but the said order was vacated on 24.10.1997 and yet, on one pretext or the other, the petitioner continued to hold the office of the Principal for along time by playing fraud on the Court by withholding material facts in various writ petitions filed by the petitioner.. According to the respondent No. 6, the petitioner is not qualified to be selected for the post of Principal as he lacked the essential qualifications needed for the said post. He also claimed that since he is a duly qualified and selected candidate and that his name has been recommended for the post of Principal of the said College, he is entitled to hold the said post. It has also been pleaded that since the petitioner had also appeared in the selection as one of the aspirants for the post of Principal and was given full opportunity and had availed opportunity for appearing before the Selection Committee and thereafter, failed to be selected, it is, therefore, no more open for him to challenge the appointment of the respondent No. 6. The case of Dr. Hansraj Tripathi was distinguishable as he joined on the post when the order passed by this Court was still in operation while no such order has been in operation on 3.11.1997 when the respondent No. 6 joined the post of the Principal. According to the respondent No. 6, the petitioner has not approached the Court with clean hands and, therefore, the writ petition is bound to fail on this ground alone.
10. In his rejoinder affidavit, the petitioner conceded that writ petition No. 22704 of 1992 was withdrawn by the petitioner. The petitioner averred that in Writ Petition No. 33441 of 1992, he had failed to bring it to the notice of the Court that earlier Writ Petition No. 22704 of 1992 was withdrawn. He also conceded to the fact that the Writ Petition No. 33441 of 1992 was dismissed.
11. We have heard the learned Counsel for the parties and have gone through the record of the case. Before we proceed further, it would be just and expedient to consider whether the petitioner is qualified and eligible to hold the office of the Principal.
12. It has been specifically averred by the respondents that the minimum qualifications making a person eligible to hold the post of Principal, were not possessed by the petitioner inasmuch as the petitioner had secured only 44% marks in B.A. and 50% marks in M.A. which are far below the minimum marks prescribed under the statutes of the Gorakhpur University which provides that a candidate must have consistently a good record (that is to say, the over all record of all assessment throughout the academic career of a candidate), with first of High Second class that is to say that an aggregate of 54% marks.). In the present case, the petitioner had not secured II-Division in B.A. nor did he secure 54% in M.A. Thus, there is nothing on record to show that the petitioner had good academic record throughout or had an aggregate of more than 54% in M.A. examination. The petitioner therefore, is apparently ineligible to be appointed on the post of the Principal.
13. Even otherwise, when the petitioner availed the opportunity by applying for selection to the post of Principal and when he was not selected, he could not have been permitted to continue either by the Committee of Management or by the Director Higher Education on the post of Principal. Once the petitioner failed in his attempt for selection to the post of Principal it would have been highly unjust and inequitable to permit him to continue as the Principal. Thus, on this score too, the petitioner is not entitled to continue on the post of the Principal.
14. It has been urged on behalf of the petitioner that he was entitled to hold the office till a regularly selected candidate is appointed on the post of Principal. There can be no dispute that the respondent No. 6 was selected for the post of the Principal and that he has joined as Principal of the College on 3.11.1997. In this view of the matter too, the petitioner cannot be permitted to hold the office on the basis of a stop gap arrangement in which he worked as a Principal. The petitioner, therefore, seems to have no right whatsoever to continue on the post of the Principal which a duly selected person has been appointed and has taken over the charge of the office.
15. It has been urged on behalf of the petitioner that no selection was made for the post of the Principal of the College. In this regard it is worth while to note that the selections are the made not for a particular Institution but for the post of Principals which are vacant or are likely to fall vacant or notified to the Commission and then appointments are made from the select list prepared by the Service Commission when the names of the selection candidates are forwarded by the Director of Higher Education. Merearly because at some point of time, it was directed by the Director Higher Education that no recruitment need be made on the post of Principal, it cannot be assumed that the selection for the post of the Principal in the College was not made. It is conceded by the petitioner himself that in the year 1992, an advertisement was made for selection to the post of Principals and therefore, on the basis of the said selection, the appointments can be made to the post of Principal wherever the posts were vacant and were notified to the Commission. The Higher Education Service Commission was entitled to make selection for the post of Principal and from the said list, the name of the respondent No, 6 has been recommended by the Director. No doubt earlier also, one Dr. Hansraj Tripathi was recommended to be appointed on the post of the Principal of the College and the same was challenged by the petitioner in Writ Petition No. 10159 of 1995 and that in the said writ petition, the order of the Director of Higher Education, U.P. dated 31.3.1995 was quashed. It appears that in the said case, the petitioner claimed that the Commission had no authority to proceed for selection for the post of the Principal of the College on account of the operation of an interim order. It may however, be seen that the recommendation of the Commission is made not for the post in a particular College rather, the same is made for the posts vacant and the list is made including a qaiting list upto 25% more than the number of vacancies which list has to remain valid till the new list is prepared by the Commission. In the present case, the selection for the post of the Principal was in fact, made in the year 1992 and even the petitioner had applied for his selection. In the said selection, the respondent No. 6 Dr. Ramacharya Misra was kept in the select list and, therefore, the Director of Higher Education had a right to recommend his name to the post of the Principal in the College. No doubt the appointment of Dr. Hansraj Tripathi was earlier recommended and a recommendation in that regard was cancelled in writ petition No. 10159 of 1995. The appointment of Dr. Hansraj Tripathi was quashed because, there was an order restraining the respondents from interfering with the working of the petitioner as the Principal of the College and the said stay order remained in operation till 24.10.1997. In the circumstances, the right of the petitioner to continue as the Principal of the College till 27.4.1995 was upheld and consequently, the appointment of Dr. Hanaraj Tripathi had to be quashed. However, the said interim order dated 16.8.1992 came to an and when on 27.4.1995, the appointment of Dr. Hansraj Tripathi was quashed. The fact, however, remains that the petitioner is not a duly selected person to hold the post of the Principal, and, therefore, the Director of Higher Eeucation has every right to recommended the name of a duly selected candidate to fill in the post of Principal in College.
16. It is evident from Annexure-2 to the writ petition itself that Dr. Ramacharya Misra was selected for the post of Principal and, therefore, the Director of Higher Education had the authority under the law to recommend the names for appointment to the post of the Principal of the College. No doubt, in the Annexure No. 2 to the writ petition, it was mentioned that on account of legal opinion and stay order passed by the Hon'ble High Court on 16.9.1992, it was decided not to make selection for the post of the Principal of the College. It may however, be seen that there was no order of the High Court restraining the Director of Higher Education or the U.P. Higher Service Commission from holding the selections to the post of the Principal. The only stay order was to the following effect :
"Until further orders of this Court, the respondents are restrained from interfering in the work of the petitioner as the Principal in the College of Janghai, Jaunpur and shall be paid salary."
17. It was as a matter of abundant precaution that the Secretary had intimated the Director of Higher Education that no selections were being made for the post of the Principal in the College but that does not mean that selection to the office of the Principal of the College was not validly made when the stay order came to an end it was open to the Director of Higher Education to make recommendation for appointment to the post of Principal of the College as sell. The Annexure No. 2 to the writ petition does not go to suggest that in fact no selections were at all made. By means of the Advertisement No. 18/91, 32 posts of the Principal of the degree colleges were advertised and selections for the said posts were made. It was only on account of the stay order that the Secretary had mentioned in the letter- Annexure No. 2 to the writ petition that on account of legal opinion, the selection to the office of the Principal of the College was not being made but this communication" does not debar the Director of Higher Education from exercising his power when the stay order dated 16.9.1992 came to an end, on 24.10.1997 (writ petition No. 33441 of 1992 was dismissed). Hence, it is not open for the petitioner to take shelter of the Annexure No. 2 as the process had starred much earlier to 16.9.1992. According to the selections, as many as 19 persons were selected by means of the Annexure No. 2 for the post of the Principal of the degree colleges (boys). In this view of the matter, the petitioner is not entitled to challenge the appointment of the respondent No. 6 on the post of the Principal of the College.
18. The petitioner is working no more as the Principal of the College as the charge of the post of the Principal was taken over by the respondent No. 6 on 3.11.1997 while the writ petition was filed on 20.11.1997. Since the respondent No. 6 who was selected by the Public Service Commission and duly recommended by the Director, Higher Education and joined on the post of Principal on 3.11.1997, the petitioner is not entitled to challenge the said appointment of the respondent No. 6.
19. The petitioner in this case, resorted to the filling of successive writ petitions invoking jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition No. 22704 of 1992 was still pending on 16.9.1992 when the interim order dated 16.9.1992 was obtained by filing of a writ petition No. 33441 of 1992. Even earlier to that writ petition No. 22704 of the 1992, the petitioner had filed a Writ Petitiion No. 2039 of 1992. Subsequently, the writ petition No. 40192 of 1993 was again filed by the petitioner but the same was withdrawn on 17.2.1994. Another writ petition No. 10159 of 1995 was filed by the petitioner. Thus, the petitioner has been filing writ petition and at times, successful writ petitions and at times, not disclosing the filing of the previous writ petitions which apparently amounts to abuse of the process of law. It appears that the petitioner having availed the opportunity of making application for selection in pursuance of the Advertisement No. 18/91, resorted to the filing of the successive writ petitions and thus, has tried to cling to the office of the Principal of the College without even being eligible for holding the said post of the Principal as he lacked essential qualifications for holding the said office.
20. In view of the above discussion, we are of the opinion that this petition has no merit whatsoever and is liable to be dismissed with costs which we assess at Rs. 5,000/- payable by the petitioner to the College.
21. The writ petition is accordingly dismissed with costs.