JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the order dated 12.5.2001 and 4,3,2002, by which the petitioner and the respondent No. 5 have been given the placement after being duly selected as Principals in Girls Colleges.
2. Facts and circumstances giving rise to this case are that petitioner had been working since 1.8.1968 as a Lecturer in Sanskrit in Manila Maha Vidyalaya, Basti, and as the Principal of the said college retired on 30th June, 1997, being senior-most teacher petitioner had been officiating as Principal w.e.f. 1.7.1997 therein. The vacancy on the post of Principal in the said college was advertised along with vacancies in other institutions by the U. P. Higher Secondary Service Commission (hereinafter called the Commission). Petitioner applied for the post giving only one option, i.e., in the same college. However, the respondent No. 5 also applied giving five options as asked by the Commission putting the same college as her No. 1 option. After completing selection process for all the vacancies, a merit list was prepared. Respondent No. 5 stood at Serial No. 3 in merit list while the petitioner stood at Serial No. 6. While making the placement/allotment of the institution, respondent No. 5 had been given the same college Mahila Maha Vidyalaya, Basti and the petitioner had been given the posting at another college. Petitioner filed this writ petition contending that as she had been officiating as a Principal in the institution, she was entitled to be adjusted therein.
3. Shri G.K. Singh, learned counsel for the petitioner has submitted that petitioner had been working as officiating Principal in the said institution from 1.7.1997. She has a right to be appointed/adjusted as a Principal in the same institution, and therefore, the respondent No. 5 had wrongly been posted there.
4. On the contrary, learned counsel for the respondent No. 5 and learned Standing Counsel have vehemently opposed the submissions made on behalf of the petitioner.
5. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
6. The thrust of argument and the entire claim of the petitioner is based on two Division Bench judgments of this Court. In Dr. Prakash Chandra Srivastava v. Director of Higher Education, Allahabad and Anr., 2003 (1) AWC 142, it has been observed that problems and disputes arise between the Principal and the management when the management is forced to issue an appointment order in favour of a person against its wishes. Thrusting an unwilling Principal on an unwilling management is not in the interest of the institution. Thus the teacher officiating therein, if duly selected may be adjusted therein. This is the only exception to the method and procedure of placement, which the Court has laid down in this judgment.
7. In C.M.W.P. No. 39758 of 2001, Km. Alka Rani Gupta v. Director of Education and Anr., decided on 27.2.2003 this Court has considered this issue at great length considering the statutory provisions of U. P. Higher Education Service Commission Act, 1980 and U. P. Higher Education Service Commission (Procedure for Selection of Teachers) Regulations, 1983. The Court has categorically held that placement is to be made only on the basis of merit in the select list. The candidate who is on the top should be given the first preference. However, at the time of making the placement of a candidate selected by the Commission, there can be only one exception, that is, he being a candidate and because of his working on ad hoc basis as Principal, he should be accommodated there provided the management has no objection.
8. Serious contentions have been advanced on behalf of the respondents that there is no provision either in the said Act or Regulations which permits carving out the exception provided by the judicial interpretation in the said case, and therefore, the matter requires reconsideration.
9. In Alka Rani Gupta (supra), this Court has extensively quoted the statutory provisions and interpreted the same in the following manner :
"We are concerned with the placement of teachers selected under the U. P. Higher Education Service Commission Act, 1980 (hereinafter referred to as the Act) in degree and postgraduate colleges in U. P. The procedure of appointment of the teachers is given in Section 12 of the said Act. Under the Act, appointments of teachers, which would include Principals vide Section 2 (g) of the Act read with Section 2 (18) of the U. P. State Universities Act, involves two stages. In the first stage, selection is done by the U. P. Higher Education Service Commission. Thereafter, in the second stage, placement in a particular college is done by the Director of Higher Education, U. P."
The controversy which has arisen in these cases and which arises often in similar other cases, and which we propose to resolve in this case is about the manner of placement of candidates who have been selected by the Commission.
In this connection Section 13 of the Act states as follows :
"13. Recommendation of Commission.--(1) The Commission shall, as soon as possible, after the notification of vacancies to it under Sub-section (3) of Section 12, hold interview (with or without written examination) of the candidates and send to the Director a list recommending such number of names of candidates found most suitable in each subject as may be so far as practicable, twenty-five per cent more than the number of vacancies in that subject. Such names shall be arranged in order of merit shown in the interview, or in the examination and interview if an examination is held.
(2) The list sent by the Commission shall be valid till the receipt of a new list from the Commission.
(3) The Director shall having due regard in the prescribed manner, to the order of preference if any indicated by the candidates under the second proviso to Sub-section (4) of Section 12, intimate to the management the name of a candidate from the list referred to in Sub-section (1) for being appointed in the vacancy intimated under Sub-section (2) of Section 12.
(4) Where a vacancy occurs due to death, resignation or otherwise during the period of validity of the list referred to in Sub-section (2), and such vacancy has not been notified to the Commission under Sub-section (3) of Section 12 the Director may intimate to the management the name of a candidate from such list for appointment in such vacancy.
(5) Notwithstanding anything in the preceding provisions, whereto abolition of any post of teacher in any college, services of the person substantively appointed to such post is terminated the State Government may make suitable order for his appointment in suitable vacancy whether notified under Sub-section (3) of Section 12 or hot, in any other college, and thereupon the Director shall intimate to the management accordingly.
(6) The Director shall send a copy of the intimation made under Sub-section (3) or Sub-section (4) or Sub-section (5) to the candidate concerned."
Regulation 5 of the U. P. Higher Education Service Commission (Procedure for Selection of Teachers) Regulations, 1983 states as follows :
"5. Notification of vacancies, submission of application and indication of preference.--The Commission shall advertise the vacancies in the three issues of at least three newspapers. The Commission shall send a copy of the advertisement to the Director and may, if it considers proper, also send a copy thereof to the District Inspector of Schools and to the Colleges. Such advertisement shall, inter alia, indicate the total number of vacancies as also the number of vacancies in women's colleges and other colleges separately, the names of the college(s) and where they are situate and shall require the candidates to apply in prescribed form and to give if he so desires, the choice of not more than five colleges in order of preference. Where a candidate wishes to be considered for a particular college or colleges only, and for no other, he shall mention the fact in his application :
Provided that where the number of colleges is large or for any other reason the Commission considers it inexpedient, it may, instead of mentioning the names and particulars of the colleges in the advertisement, send the copy thereof to the colleges and to the District Inspector of Schools and mention in the advertisement that particulars of the colleges may be seen in the office of the Commission, the office of District Inspector of Schools or in the Colleges :
Provided also that the Commission shall not be bound by the choice given by the candidate and may, in its discretion, recommend him for appointment in a college other than indicated by him."
Regulation 7 (3) states as follows :
"(3) The posts of the Principal of degree colleges in the higher grade shall be offered in order of merit with due regard to the preference given by the candidates and the posts in the lower grade shall similarly be offered to the candidates standing next in order of merit."
We have quoted the above provisions in detail so as to state the legal position in this connection. Ordinarily, the Commission advertises a large number of posts of Principals/teachers in a single advertisement after receiving the requisitions from the colleges concerned through the Director about the vacancies. The selections by the Commission are not in respect of any particular institution. It is the Director of Higher Education who under Section 13 (3) read with Regulations 5 and 7 makes the placement in accordance with these provisions. Section 3 (3) of the Act makes it clear that the Director shall have due regard in the prescribed manner to the order of preference, if any, indicated by the candidates under the proviso to Section 12 (4) of the Act and he shall then indicate to the college concerned the names of the selected candidates for giving appointment. The management of the college has to comply with the directions of the Director and it has no choice in the matter. The manner which has been prescribed is given in Regulation 5 and Regulation 7 (3). Every candidate can name not more than five colleges in order of preference as mentioned in Regulation 5 (1). The second proviso to Regulation 5 specifies that the Commission shall not be bound by the choice of the candidates and may recommend for appointment in the other college indicated by him.
We clarify that the Commission's recommendations regarding placement of selected candidates for a particular college are not binding on the Director. The Director is bound by the mandate of Section 13 (3) of the Act which states that he must have due regard to the order of the preference indicated by the candidates. Under Regulation 7 (3) read with Section 13 (3) the placement is to be done in order of merit with due regard to the preference given by the candidates. Normally, after the interview/ examination the Commission awards marks to each of the candidates, and the select list is prepared in accordance with merit as per the marks obtained by the candidates.
Thus, the legal position which emerges from the above provisions in the Act and Regulations is as follows :
"(1) Where a large number of candidates are selected for various institutions by the Commission, the Commission has to prepare a select list in accordance with the merit determined by the Commission.
(2) The candidate who is on the top of the select list will be given his first preference.
(3) Then the candidate who is at serial position No. 2 in the select list will be considered by the Director. If his first choice has already been filled by the candidate at the top of the select list then this candidate will be given his second choice, otherwise he will get his first choice.
(4) Then we come to the candidate who is on the third position in the select list. If the choice of his first preference has not been already allotted to a candidate higher than him in the select list he will be given that institution, otherwise he will be given his second choice, unless that too has been allotted to the candidate above him, in which case he will be allotted the institution of his third choice. In this way the Director will do the placement.
In our opinion this is the only logical and reasonable method for making placement of a candidate selected by the Commission, and if this is not followed there is bound to be chaos, corruption, arbitrariness, casteism etc. There shall be only one exception to the above method and procedure for making placement, namely that if there is an ad hoc Principal already working in the College, or Lecturer working in the said college who has been selected by the Commission for the post of Principal then the ad hoc Principal/Lecturer should be given placement in the same college as Principal provided that the management has no objection."
The Court further held that in making the placement as above, the provisions of the Act and the Regulations have to be in full rigor and there can be no other consideration on any ground while making the placement except the adjustment of the person, who had been working as ad hoc Principal therein, provided there is no objection from the management
10. Learned counsel for the petitioner could not satisfy us as to what is the statutory provision, the interpretation of which even loosely could provide for carving out an exception for adjustment of a person in the same college where he had been working as ad hoc Principal. Mr. Singh, learned counsel for the petitioner referred to proviso to Regulation 5 which provides that Commission shall not be bound with the choice made by the candidate and may, in its discretion, recommend him for appointment in a college other than indicated by him. It has been submitted by Mr. Singh that Commission has a discretion and in exercise thereof an exception has been carved out to adjust/ accommodate a candidate in the same institution where he had been working on ad hoc basis. However, if such an interpretation is accepted it will render the provisions of Regulation 7 (3) nugatory as it provides that post is to be offered in order of merit with due regard to the preference given by the candidates. If in order to run the institute smoothly and avoid the disputes/differences between the Management and Principal, it was necessary that management may have some say in the appointment of the Principal, the Legislature could have provided some mode thereof. If the Legislature in its wisdom has not given any right of representation to the management in such matters, it cannot be conferred by interpretative legislation.
11. Judgment of the Division Bench of this Court in Dr. Prakash Chandra Srivastava v. Director of Higher Education and Anr., (2003) 1 AWC 142, heavily relied upon by Mr. Singh is of no help to the petitioner as the facts of the said case were entirely different. It was a case where A an officiating Principal had given his first choice for the same college and B higher in merit than A had given as fourth choice. B had already been appointed in another degree college and joined therein. Subsequently, he was given replacement in the college, where A had been working. Thus, it was a case of re-placement and not a placement. This Court has rightly decided in favour of A. The ratio of the said judgment has no application in the facts of this case.
12. The Court has to be alive of the fact that while interpreting the provisions of a statute, it can neither add nor subtract a word. There is a maxim "A Verbis Legis Non Ext Recedendrum". The said maxim was applied by the Hon'ble Supreme Court in Balasinor Nagrik Lal Pandya, AIR 1987 SC 849 holding that a section is to be interpreted by reading all its part altogether and it is not permissible to omit any part thereof.
13. In Erusian Equipment and Chemical Ltd. v. State of West Bengal and Anr., AIR 1975 SC 266, the Supreme Court observed that where Government activity involves public element, the "citizen has a right to claim equal treatment", and when "the State acts to the prejudice of a person, it has to be supported by legality." Functioning of "democratic form of Government demands equality and absence of arbitrariness and discrimination" for the reason that "Government cannot choose to exclude persons by discrimination."
14. Similarly, in Ramana Dayaram Shetty v. International Airport Authority of India and Ors., AIR 1979 SC 1628, the Apex Court observed as under :
"Every action of the executive Government must be in form of reason and should be free from arbitrariness. That is the very essence of rules of law and its bare minimum requirement."
15. Thus, the decision taken in an arbitrary manner contradicts the principle of legitimate expectation and the plea of legitimate expectation relates to procedural fairness in decision making and forms a part of the rule of non-arbitrariness as denial of "administrative fairness" is constitutional anathema. (Vide E. P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 ; Smt. Maneka Gandhi v. Union of India and Anr., AIR 1978 SC 597 ; Ku. Shrilekha Vidhyarthi v. State of U. P. and Ors., AIR 1991 SC 537 ; Ghaziabad Development Authority v. Delhi Auto and General Finance Pvt. Ltd. and Ors., (1994) 4 SCC 42 ; and Manmal Sharma etc. v. Bikaner Sahkari Upbhokta Bhandar and etc., AIR 1999 Raj 13).
16. The rule of law inhibits arbitrary action and such action is liable to be invalidated. Every action of the State or its instrumentalities should not only be fair, legitimate and above-board but should be without any affection or aversion. It should neither be suggestive of discrimination nor even apparently give an impression of bias, favouritism and nepotism. (Vide Haji T.M. Hassan Rawther v. Kerala Financial Corporation, AIR 1988 SC 157).
17. In the State of Andhra Pradesh v. Nalla Raja Reddy and Ors., AIR 1967 SC 1458, the Constitution Bench of the Apex Court observed as under :
"Official arbitrariness is more subversive of doctrine of equality than the statutory discrimination. In spite of statutory discrimination, one knows where he stands but the wand of official arbitrariness can be waved in all directions indiscriminately."
18. Similarly, in S.G. Jaisinghani v. Union of India and Ors., AIR 1967 SC 1427, the Constitution Bench of the Apex Court observed as under :
"In the context it is important to emphasize that absence of arbitrary power is the first essence of the rule of law, upon which our whole Constitutional System is based. In a system governed by rule of law, discretion, when conferred upon Executive Authorities, must be confined within the clearly defined limits. Rule of law, from this point of view, means that the decision should be made by the application of known principle and rules and in general such decision should be predictable and the citizen should know where he is, if a decision is taken without any principle or without any rule, it is unpredictable and such a decision is antithesis to the decision taken in accordance with the rule of law."
In the said judgment, the Apex Court has referred to the Judgment in United States v. Wunderlich, (1951) 342 US 98, wherein it has been observed as under :
19. In a case where a result of a decision taken by the Government the other party is likely to be adversely affected, the Government has to exercise its powers bona fide and not arbitrarily. The discretion of the Government cannot be absolute and injusticiable (Vide Amarnath Ashram Trust Society v. Governor of U. P., (1998) 1 SCC 591).
20. There is no manner of doubt that the public authorities and the Government are bound to act reasonably and fairly and each action of such authorities must pass the test of reasonableness and whenever action taken is found to be lacking bona fide and made in colourable exercise of the power, the Court should not hesitate to strike down such unfair and unjust proceedings. (Vide Hansraj H. Jain v. State of Maharashtra and Ors., (1993) 3 SCC 834).
21. In fact, the order of the State or State instrumentality would stand vitiated if it lacks bona fides as it would only be a case of colourable exercise of power. In State of Punjab v. Gurdial Singh, AIR 1980 SC 319, the Hon'ble Apex Court has dealt with the issue of legal malice which is just different from the concept of personal vide. The Court observed as under ;
"When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated : 'I repeat ........... that all power is a trust--that, from the people, all springs and all must exist.' Fraud on power voids the order if it is not exercised bona fide for the end designed, Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to affect some object which is beyond, the purpose and intent to the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impels the action mala fides or fraud on power vitiates the--official act."
22. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101, the Supreme Court observed that "discretion when conferred upon the executive authorities, must be confined within definite limits. The rule of law from this point of view means that decision should be made by the application by known principles and rules and in general, such decision should be predictable and the citizen should know where he is."
23. Even the courts are bound to exercise their discretion "according to well established judicial principles, according to reason and fair play, and not according to whim and caprice" as held by the Hon'ble Supreme Court in Romji Dayawala and Sons (P) Ltd, v. Invest Import, (1981) 4 SCC 80. While deciding the said case the Court placed reliance on the judgment in R. v. Willes, (1770) 4 Burr 2527, where it had been observed as under :
"Discretion when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour ; it must not be arbitrary, rogue and fanciful, but legal and regular."
Similar view has been reiterated by the Apex Court in Dwarka Dass and Ors. v. State of Haryana, (2003) 1 SCC 204, as it has been held therein that even "discretionary power had to be exercised in accordance with the known principles of law and not otherwise."
24. Even if the statute provides for preference in favour of a particular class of candidates, it is to be accorded only and only if the merits of the candidates are equal. (Vide Government of Andhra Pradesh v. P. Dilip Kumar and Anr., (1993) 2 SCC 310 ; and Executive Officer v. T. Venkateshwarlu and Anr., (1996) 8 SCC 253).
25. It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations or supported by a statute, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.
26. In Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, AIR 1958 SC 398 ; Sitaram Ramcharan v. M.N. Nagrashana, AIR 1960 SC 260 and Sarpanch Lonand Grampanchayat v. Ramji Gosari, AIR 1968 SC 222, the Apex Court held that the writ court should not interfere with the discretion of the authority judicially exercised, but it may interfere if the exercise of the discretion is "capricious or perverse or ultra vires."
27. Thus in view of the above, if the discretion is to be exercised judicially and if the provisions of the Act and the Regulations are read together, we find no scope of discretion of the statutory authority in making the placement, as it is to be made exclusively on merit. A candidate higher in the merit list has to be offered the place of his first choice, if available, without making any adjustment in favour of a person working therein on ad hoc basis. The matter requires to be considered in the light of the provisions of Section 13 (20) of the First Statute of the University of Gorakhpur which provides that a senior teacher can be appointed as an officiating Principal till a regular Principal is appointed. The said provision does not create any right in favour of a person working on ad hoc basis to continue if he is so selected regularly and not vacating the post for duly selected candidate over and above him in merit list who had ' given choice for the said college. Officiating for a long period of time should not create a premium for him as the duly selected candidate over and above him in merit cannot be held responsible for the inaction of the Commission for not making the appointment in time or for college in notifying the vacancy expeditiously.
28. Therefore, with all humility at our command and with due respect to the Hon'ble Judges constituting the Bench, we doubt the correctness of the ratio of the said judgment in Alka Rani Gapta (supra). However, at the same time, we cannot forget that judicial discipline and decorum command to follow a law laid down by a coordinate Bench and in case its correctness is doubted, a reference should be made to the larger Bench. In our humble opinion, it is a fit case where we could have referred the matter to the larger Bench for reconsideration of the issue. However, the facts in the instant case stand on a different footing and the matter requires to be disposed of considering the said distinguishable features rather than making reference to the larger Bench. In the instant case, immediately after receiving the information from the Commission regarding the selection and placement of respondent No. 5, the respondent No. 4 Committee issued the appointment letter on 18.3.2002 (Annexure-C.A.-1). However, the said order was recalled because of the interim order passed by this Court on 16.3.2002 making it clear that though her joining report had been accepted but she had not been handed over the charge of the Principal. There is nothing on record to show or establish that the management had no objection for appointment of the petitioner as Principal in its college. In fact, it had issued the appointment letter to respondent No. 5 and accepted her joining report though she could not be permitted to work because of the interim order passed by this Court on 16.3.2002.
29. In Dr. Alka Rani Gupta (supra), this Court has categorically held that condition precedent for placement of the Principal who had been working on ad hoc basis in the same institution would be if the management committee has no objection. This condition is not fulfilled in the instant case, rather issuing the appointment letter to the respondent No. 5 and accepting her joining report is manifestation of its will to the contrary. The respondent No. 4 has not come forward and filed any affidavit in this respect supporting the petitioner. Thus, the ratio of the judgment in Alka Rani Gupta (supra) is not applicable in the instant case.