Heard leaned counsel for the petitioners as well as learned Standing Counsel. With the consent of the parties' counsel, we proceed to decide the writ petition at admission stage.
The controversy relates to appointment of Group-C and D post by the committee of management/Principal of Shri Varshney Mahavidyalaya, Aligarh.
According to learned counsel for the petitioners, by letters dated 8.8.2003 and 18.10.2003, the Regional Higher Education Officer had sanctioned and granted permission to the committee of management to make appointment on a post against clear regular vacancy. After making selection of six posts, papers were sent to the respondents no. 3 for approval. The committee of management was informed that on account of ban imposed by the State Government, approval cannot be granted. The ban imposed by the State Government was lifted by letter dated 27.12.2006. By letter dated 22.5.2007(Annexure No. 8) the committee was permitted to fill up all vacancies and in consequence thereof, the committee had advertised the vacancy on 7.8.2007. After due selection on 12.12.2007 the letter was sent for approval for the appointment.
By the impugned order dated 17.5.2008, the Regional Higher Education Officer had declined to grant approval for two reasons. Firstly, so far as these vacancies are concerned, matter is pending for approval with regard to six vacancies Hence those vacancies could not have been filled up and second ground is that while making appointment on four posts, the policy of regularization and backlog posts have not been taken into account.
From a perusal of impugned order, there appears to be no dispute that the respondents had granted permission to committee of management to fill up all pending vacancies after the ban lifted by the State Government.
So far as the first ground is concerned, it reveals from the impugned order that with regard to six persons already selection was done and the matter is pending with the authority concerned for approval Attention has been invited to the order dated 19.2.2005 which reveals that while considering the petitioners' application for approval, the Regional Higher Education Officer expressed his view that after lifting of ban, the question with regard to approval of six selected candidates in pursuance to the advertisement is pending for consideration. To that extent, the impugned order seems to be correct appreciation of fact. However, in case the view expressed by the Higher Education Officer is accepted to be correct, then it was incumbent on the Higher Education Officer to take decision with regard to six persons who were selected in the year 2007.
While passing the impugned order, by not taking any decision with regard to six persons in terms of order dated 19.2.2005, the Regional Higher Education Officer seems to be acted arbitrarily. Either he should have taken decision with regard to selection done against those vacancies and communicating the same while passing the impugned order or he could have granted approval to the subsequent selection held, who even after lapse of four years, has not communicated the decision in terms of order dated 19.2.2005 followed by impugned order dated 17.5.2008. Such action on the part of Higher Education Officer, seems to be blatant abuse of power. The other factual position is that the committee of management had submitted representation dated 1.6.2007 copy of which has been annexed as Annexure No. 9 to the writ petition.
While submitting representation, the Principal had informed the Regional Higher Education Officer with regard to vacancy filled up through reservation. According to Shri Mehta, the chart includes with letter dated 1.6.2007 by the Principal indicates that the entire vacancy under the reserved quota has already been filled up and there is no backlog. It is also stated that while holding selection certain persons have been selected from the reserved quota also.
While passing the impugned order, the Regional Higher Education Officer should have considered the letter dated 1.6.2007 followed by status of selected persons. Without considering the nature of selection done, finding recorded while passing the impugned order seems to be perverse. While passing the impugned order, the Regional Higher Education Officer should have considered the controversy in question in the light of actual position brought into the notice of the Court here-in-above.
In view of above, the impugned order suffers from vice of arbitrariness and hit by Articles 14 and 21 of the Constitution of India. The writ petition deserves to be allowed.
A writ in the nature of cerriorari is issued quashing the impugned order dated 17.5.2008. The Regional Higher Education Officer is directed to consider the entire controversy afresh in the light of observation made here-in-above and pass fresh order by passing a speaking and reasoned order after affording opportunity of hearing to the parties, expeditiously, say, within a period of two months from the date of production of certified copy of this order.
Accordingly, the writ petition is allowed. No order as to cost.
Order Date :- 26.4.2012 Rizvi