9911796707
TMI Blog2005 (2) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of Lecturers in the Colleges in various subjects, a list dated 7.7.2001 was sent by the Commission to the Director recommending the names of 121 candidates found most suitable for the post of Lecturer in B.Ed. The Director intimated the managements of the respective Colleges the names of the candidates for. being appointed. Amongst others, the name of Pradeep Kumar Arora, petitioner No. 1, was intimated to the management of Vardhman College, Bijnor whereas the name of Dr, Kailash Nath Gupta, petitioner No. 2, was intimated to the management of Nanakchand Anglo Sanskrit College, Meerut (hereinafter referred to as 'NAS College' Meerut). Instead of joining at their respective Colleges, both the petitioners moved applications before the Director for inter changing their placement. The Director, however, did not accede to the request and proceeded to place another candidate Harendra Kumar at the NAS College, Meerut. It is In these circumstances that the present petition was filed in the Court for the relief mentioned above and when the matter was taken up on 24.4.2002 time was granted to the respondents to file a counter-affidavit and notices were issued to respondent Nos. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the intimation sent by the Director he had been appointed as a Lecturer in B.Ed. In Maltari College, Azamgarh. However, Dr. Gupta had concealed material facts from this Court and obtained an interim Order dated '24.4.2002. 7. A counter affidavit was filed on behalf of the petitioners to the aforesaid impleadment application wherein it was admitted that petitioner No. 2 Dr. Kailash Nath Gupta was working at Maltari College, Azamgarh in view of his selection on the basis of Advertisement No. 28 and on the basis of the interim Order dated 24.4.2002, he could not join the Vardhman College, Bijnor as he did not receive any information about his placement. However, petitioner No. 1, Pradeep . Kumar Arora joined at the NAS College, Meerut pursuant to the interim Order dated 24.4.2002 and was teaching there. In the rejoinder affidavit to the aforesaid impleadment application Ompal Singh has brought on record the communication dated 31.1.2002 sent by the NAS College, Meerut to the Director wherein reasons have been given as to why Harendra Kumar was not permitted to join in spite of the intimation dated 24.1.2002 sent by the Director to the said College. It has further been stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 2 in the list of OBC category candidates. 9. On 13.5.2003, when the matter was taken up by the Court, the following Order was passed: The petitioner No. 2 has sworn affidavit on personal knowledge and made false averments in para 32 of the writ petition. He is directed to remain present before this Court on 22.5.2003 at 2.00 p.m. to explain under what circumstances he has made factual averments in para 32 that the vacancy of commerce has ever been advertised in NAS College Meerut and how he has verified this fact on personal knowledge in his affidavit. He is directed to file affidavit explaining his conduct why he should not be dealt with criminal contempt. List this petition for further hearing on 22.5.2003 at 2.00 p.m. 10. Pursuant to the aforesaid directions, an application duly supported by an affidavit of Dr. Kailash Nath Gupta. An attempt was made to explain the facts mentioned in paragraph 32 of the petition by stating that the averments had been made on the basis of the report of the Committee of Management of the NAS College, Meerut rather than on the basis of the advertisement and an unconditional apology was submitted. 11. The matter was heard by us at l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted such mutual exchange of placement; the Director was not justified in adjusting Harendra Kumar who belongs to the Other Backward Category and who was at Serial No. 1 in the said category and had been placed at Vardhman College, Bijnor; and that Harendra Kumar belongs to History subject whereas no such post was available at NAS College, Meerut. 15. On the other hand, learned Standing Counsel and Sri Upendra Singh, learned Counsel appearing for the newly impleaded respondent No. 5 opposed the grant of any relief since that would not only be against the provisions of the Act and the Rules framed thereunder but the petitioners had also concealed material facts from this Court and in support of their contentions the learned Counsel relied upon the averments made in the affidavits filed by them. 16. In Order to appreciate the controversy involved in the present petition, it would be necessary to refer to the provisions of the Act and the provisions of the Uttar Pradesh Higher Education Services Commission Rules, 1981 (hereinafter referred to as the 'Rules') and the provisions of the Uttar Pradesh Higher Education Services Commission (Procedure for Selection of Teacher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 12, intimate to the management the name of a candidate from the list referred to in Sub-section (2) of Section 12. (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. 14. Duty of Management--(I) The management shall within a period of one month from the date of receipt of intimation under Sub-section (3) or Sub-section (4) or Sub-section (5) of Section 13, issue appointment letter to the person whose name has been intimated. (2) Where the person referred to in Sub-section (1) Jails to join the post within the time allowed in the appointment letter or within such extended time as the management may allow in this behalf, or where such person is otherwise not available for appointment, the Director, shall on the request of the management intimate fresh name from the list sent by the Commission under Sub-section (1) of Section 13 in the manner prescribed. 15. Inquiry by Director.- (1) Where any person is entitled to be appointed as a teacher in any College in accordance with Sections 12 to 14, but he is not so appointed by the management within the time provided theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment letter, the Director shall intimate a fresh name from the list sent by the Commission. Under Section 15 of the Act, if the person is not appointed by the management then he may apply to the Director for directions and under Section 15 (2) of the Act, the Director, after holding an enquiry, may require the management to appoint the person and the Principal concerned to take work from him. Rule 7 of the Rules provides that the management of the College has to intimate the number of vacancies to be filled in by recruitment during the course of the year by 31st May in Form I and under Rule 11 the candidate recommended by the Commission for appointment may intimate to the Director his non-appointment by the management in Form II. The Regulations provide that the minimum qualification for appointment of a teacher shall be as given in the Statutes of the Universities and they also provide for a detailed procedure regarding the termination and intimation of vacancies, notification of vacancies, submission of application and indication of preference and the procedure for selection and recommendation for appointment and the notification of names of selected candidates. 18. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rut intimating the name of petitioner No. 2, Dr. Kailash Nath Gupta for appointment as a Lecturer in B.Ed, in the College. A copy of the letter also endorsed to petitioner No. 2 with the same remark. Both the petitioners did not desire to join the place of postings indicated in the aforesaid communications sent by the Director and, therefore, moved applications for Inter changing their place of postings. 19. What, therefore, emerges is that in the communications dated 22nd December, 2001 and 23rd October, 2001 sent to the petitioner Nos. 1 and 2 respectively for their placements at the Colleges it was clearly mentioned that they should immediately intimate the Director about their joining at the respective Colleges and should they fail to join within the time stipulated by the management of the Colleges it will be presumed that they were not interested in joining so that their appointments shall automatically stand cancelled and they will also not be considered for placement in any other College. The petitioners have not brought on record the letters issued by the management of the two Colleges and it is also not their case that such letters were not issued. However, In the lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nath Gupta to join as a petitioner in the present petition so as to make out a case of simple inter change of place of postings. We are persuaded to form such an opinion because of the fact that even after the passing of the interim Order dated 24.4.2002 petitioner No. 2 Dr. Kailash Nath Gupta did not Join the Vardhman College, Bijnor though petitioner No. 1 Pradeep Kumar Arora immediately joined the NAS College, Meerut. The contention of Dr. Kailash Nath Gupta that he was not issued a letter by the Vardhman College, Bijnor cannot be accepted because there was an interim Order granted in his favour by this Court and nothing has been brought on record to show that he moved any application/representation before the said College for appointment or that he complained to this Court that the interim Order was not complied with by the Vardhman College, Bijnor. Thus, it is amply clear that he had no intention of joining the said College. It was by this oblique method that Dr. Kailash Nath Gupta wanted to help petitioner No. 1 in seeking appointment in the NAS College, Meerut and in doing so material facts were deliberately concealed from this Court. We are not inclined to accept the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice exposing the judicial discretion to the criticism of private benevolence and the Court should not be guided by misplaced sympathy, but should pass interim Orders making accurate assessment of even the prima facie legal position. The Court should not embarrass the authorities under the Statute by taking over the functions to be performed by them. 24. In Union of India v. Era Educational Trust and Anr., (2000) 5 SCC 57, the Hon'ble Supreme Court after considering its large number of Judgments held that while passing interim Order in exercise of writ Jurisdiction under Article 226 of the Constitution, principles laid down for granting Interim relief under Order XXXIX of Code of Civil Procedure, 1908 should be kept in mind. It can neither be issued as a matter of right nor it should be in the form which can be granted only as final relief. 25. In Morgan Stanley Mutual Fund v. Kartick Das, (1994) 4 SCC 225, the Hon'ble Apex Court held that ex-parte Injunction could be granted only under exceptional circumstances. The factors which should weigh for grant of injunction are - (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1; and Regional Officer, CBSE v. Ku. Sheena Peethambaran and Ors., (2003) 7 SCC 719. 31. Thus, in view of the aforesaid decisions, no interim relief, which amounts to a final relief, should be granted at the initial stage. 32. There can be no quarrel to the legal proposition that no party can suffer by the action of the Court and when the High Court in exercising of its powers under Article 226 of the Constitution of India grants interim relief; the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised. The institution of litigation by a party should not be permitted to confer an unfair advantage on the party responsible for it. [Vide Grindlays Bank Ltd. v. Income-tax Officer, Calcutta and Ors., AIR 1980 SC '656; Ram Krishna Verma and Ors. v. State of U.P. and Ors., AIR 1992 SC 1888; State of Madhya Pradesh and Ors. v. M/s. M.V, Vyavsaya and Co., AIR 1997 SC 993; and Smt. Rampati Jaiswal and Ors. v. State of U.P. and Ors., AIR 1997 All 170]. 33. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim Order always merges in the final Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court has categorically held that interim Order cannot disturb the position in law and if a person is in service by virtue of the interim Order of the Court, he cannot agitate the issue that his continuation in service in such a condition has improved his claim to regularisation. 36. Similar view has been reiterated in South Eastern Coalfields Ltd. v. State of M.P. and Ors., (2003) 8 SCC 648; and Karnataka Rare Earth and Anr. v. Senior Geologist, Department of Mines and Geology and Anr., (20O4) 2 SCC 783. 37. This petition is also liable to be dismissed on the ground of non-impleadment of the necessary party, namely, Harendra Kumar in view of the decisions of the Supreme Court [Vide Prabodh Verma and Ors. v. State of V.P. and Ors., AIR 1985 SC 167; Ishujar Singh Ajay Kumar and Ors. v. Kuldip Singh and Ors., 1995 (Suppl) 1 SCC 179; Bhagujanti and Ors. v. Subordinate Seruices Selection Board, Haryana and Anr., 1995 (Suppl) 2 SCC 663; Central Bank of India v. S. Satyam and Ors., (1996) 5 SCC 419 ; J. Jose Dhanapaul v. S. Thomas and Ors., (1996) 3 SCC 587; Arun Tiwari and Ors. v. Zila Mansavi Shikshak Sangh and Ors., AIR 1998 SC 331; Azhar Hasan and Ors. v. District Judge, Saha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing the position, we are of the considered opinion that the petitioners could not have been permitted to inter change their place of postings merely because they had no objection or the respective Colleges had no objection. 40. In the case of Km. Ragini Srivastava v. State of UP., 1997 (1) ESC 649 a Division Bench of this Court consisting of one of us (Dr. B.S. Chauhan, J.) considered the question whether a candidate, whose name had been intimated by the Director to the management of a College and who was consequently issued a letter of appointment by the management could prefer not to join the College and then claim appointment to some other College. The Court held that such a course cannot be adopted by the candidate. The relevant portions of paragraphs 6 and 7 of the aforesaid judgment are quoted below : 6. The list sent by him Commission remains valid till the receipt of a new list from the Commission, under Sub-section (2) of Section 13. This is intended to meet the situation where a selected candidate does not Join the post for any reason and also to meet a contingency specified in Sub-section (4) of Section 13. The process of selection and appointment comes to an end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the case that the Committee of Managements of the respective Colleges did not issue them letters of appointment but what they contend is that the places of posting should be inter changed. Thus also no relief can be granted to the petitioners. 42. The matter can be examined from another angle namely, whether it is permissible for teachers to seek mutual transfer once they had been appointed in particular Colleges. There is no provision in the Act, which permits mutual transfers, and this question was also specifically considered by a Full Bench of this Court in Ajay Kumar v, Director of Higher Education of U.P., Allahabad and Ors., (1997) 1 UPLBEC 337. The Full Bench after an elaborate discussion of the provisions of the Act disagreed with the view earlier taken by the Division Bench of this Court in the case of Dr. Suman Agarwal v. U.P. Higher Education Service Commission, Allahabad and Ors., 1995 (3) ESC 298, and held that neither the Commission nor the Director has any power to transfer a teacher from one Degree College to another. Relevant paragraph Nos. 8 and 10 of the Full Bench decision are quoted below : 8. Analysis of the provisions of the Act, clearly indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission and Selection Boards Act, 1982. This Act of 1982 also contains provisions regarding intimation of the vacancies by the College for selection of suitable candidates, sending of the name of the selected candidates by the Commission to the appropriate authority and the appointments of the selected candidates by the management of the College. The Supreme Court in the case of Om Prakash Rana v. Swamp Singh Tomar and Ors.. AIR 1986 SC 1672, held that after the enactment of the Secondary Service Commission Act, 1982 a teacher of an Intermediate College cannot be transferred from one College to another in spite of the specific provision of transfer contained in the Intermediate Education Act and the Regulations framed thereunder and the relevant portion of the judgment is quoted below : The scheme under the Education Act envisages the appointment of a Principal In relation to a specific College. The appointment is in relation to that College and to no other. Moreover, different Colleges may be owned by different bodies or organisations so that each Principal serves a different employer. Therefore, on filling the office of a Principal to a College a new contract of employment wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Similarly, in Ramniklal N. Bhutta and Anr. v. State of Maharashtra and Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under : The power under Article 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....the interest of justice and public interest coalesce. They are very often one and the same....The Courts have to weight the public interest vis-a-vis the private interest while exercising the power under Article 226....Indeed any of their discretionary powers. 48. In Dr. Buddhi Kota Subbarao v. K. Parasaran and Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under : No litigant has a right to unlimited drought on the Court time and public money in Order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions. 49. Similar view has been reiterated by the Supreme Court in K.K. Modi v. K.N. Modi and Ors., (1998) 3 SCC 573. 50. In Trilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898; State of Haryana v. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of facts. In T. Arivandandam v. T.V. Satyapal and Anr., AIR 1977 SC 2421, the Apex Court held that the Court should remind itself of the provisions of Section 35A, C.P.C. and take deterrent action if it is satisfied that the litigation was inspired by vexation motives. In such a case the lawyer also owes a duty not to present such a case observing as under : We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society hot to collaborate in shady actions.......A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process........ 54. Not only the litigants but also the counsel for them failed to appreciate as what duties he had towards the Court in filing a petition. The petition has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 58. In Secretary, Hailakandi Bar Association v. State of Assam and Anr., AIR 1996 SC 1925, the Apex Court held that filing inaccurate documents deliberately, with a view to mislead the Court, amounts to interference with the due course of justice by attempting to obstruct the Court from reaching a correct conclusion, and thus, amounts to contempt of Court. 59. Similar view has been reiterated by the Apex Court in Dhananjay Sharma v. State of Haryana and Ors., (1995) 3 SCC 757; and Rita Markandey v. Surjit Singh Arora, (1996) 6 SCC 14, observing that deliberate attempt to Impede the administration of justice or interference or tending to interfere with or obstruct, or tend to obstruct the administration of justice, in any manner, amounts to criminal contempt. 60. In Afzal and Anr. v. State of Haryana and Ors., (1996) 7 SCC 397; and Mohan Singh v. Late Amar Singh, (1998) 6 SCC 686, the Apex Court held that a false and a misleading statement deliberately and wilfully made by a party to the proceedings to obtain a favourable Order, amounts to prejudice or interference with the due course of judicial proceedings, and it will amount to criminal contempt. The Court further held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Director permitted such inter change and secondly this contention was also considered and repelled by this Court in the case of Km. Ragini Srivastava (supra) and it was held as follows : The fact that in the past recommendations were made by the Director for the vacancies which were not notified and for which stipulated selection process had not been gone through would not form the ground for our holding that the others who did not get the benefit of illegal Orders should be extended similar benefits: Article 14 of the Constitution cannot be extended to legalise the illegal Orders though others had wrongly got the benefit of such Order. In this view we find support from Harped Kaur Chahal v. Director, Punjab Instructions, 199S Supp. (4) SCC 706. So, neither petitioner is entitled to relief. 66. Even if in the past, such an inter-change had been permitted by the Director of Higher Education, it would not create a right in favour of the petitioners as Article 14 of the Constitution does not envisage a negative equality. 67. Article 14 is not meant to perpetuate an illegality. Therefore, we are not bound to repeat the wrong action done by us earlier. This view stands f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Lecturer in the Maltari College, Azamgarh. In terms of the letter sent by the Director, since the petitioners had failed to join the respective colleges, their appointments stood automatically cancelled and thus there could be no occasion for them to claim any relief whatsoever. The fact of cancellation of their placement was concealed. (II) Petitioner No. 2 who was already working at Maltari College, Azamgarh had no intention of joining the Vardhman College, Bijnor since even after obtaining the interim Order from this Court, which permitted him to join the said College, he made no efforts to Join and, therefore, it is clear that the petitioners had played fraud upon this Court by making out a simple case of inter change of the Colleges whereas in fact it was not so and petitioner No. 2 by this oblique method wanted to help petitioner No. 1, as he Is still working in Azamgarh College. (III) Petitioners purposely and knowingly did not disclose that by virtue of their posting, the purpose of filling up the vacancy in a particular subject would stand frustrated, and this way where there was a requirement of a Maths Teacher, a Commerce Teacher has been appointed. (IV) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k. (2001) 4 ESC 1515]. Today, this Bench has the jurisdiction to deal with the criminal contempt and contempt appeal. We initiate the proceedings for committing criminal contempt of this Court and for that purpose, we frame the following charges: That you, Pradeep Kumar Arora and Dr. Kailash Nath Gupta filed the writ petition giving an impression that there was no requirement of any specialisation in a particular subject while making the appointment in Education Department; you concealed, knowingly and purposely, the fact that none of you had joined in the College of your placement by the Director of Higher Education nor you have stated that you had approached the Committee of Management of the respective institutions where you had been given the placement by the Director of Higher Education and the Committee of Management did not issue the appointment letters; you did not disclose that your appointment itself came to an end by operation of law as well as in terms of your placement Order as you failed to join the respective College of your placement within the stipulated period; and by suppressing these facts, you succeeded in obtaining interim Order; though petitioner No, 1 joi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
