The Allahabad High Court has said that where the petitioner had been litigating for her cause that joining another college cannot be said that she had waived her right to challenge the placement of principals in graduate colleges.
The Division Bench of Justice Manoj Misra Justice Vikas Budhwar heard a criminal appeal filed by Dr Anju Chaudhary.
The intra-court appeal is against the order dated 20.06.2022 passed by the Single Judge, whereby the writ petition of the appellant (i.e the petitioner) has been dismissed.
The petition was filed by the appellant for quashing the order dated 20.12.2021 passed by the Director of Higher Education, U.P Prayagraj (Director) rejecting her representation for her placement as Principal of either Gokul Das Hindu Girls’ College, Moradabad or Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya, Harsh Nagar, Kanpur.
The facts giving rise to the appeal are as follows:
Pursuant to an advertisement issued by the U.P Higher Education Service Commission, Prayagraj (Commission), inviting applications for 290 posts of Principal in various graduate and post-graduate colleges in the State of Uttar Pradesh, the petitioner applied for appointment and, after undergoing the selection process, was placed at serial no 200 in the revised merit / select list dated 05.10.2021.
Dr Charu Mehrotra (respondent no 5), who participated in the same selection process, was placed at serial no 205, and Dr Sunita Arya (respondent no 6), who was placed at serial no 218, were placed in those colleges which were higher in the order of preference of the petitioner than where the petitioner was placed by the Director.
The case of the petitioner is that in her preference /option list of colleges for placement, pursuant to her selection, she had given multiple options in the order of preference.
In that list, Gokul Das Hindu Girls’ College, Moradabad was at serial no 20 whereas, Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya, Harsh Nagar, Kanpur was at serial no 34 in the order of preference.
However, the petitioner was placed at Mahila Mahavidyalaya, Kidwai Nagar, Kanpur, which was at serial no 41 in the order of preference given by the petitioner. On the other hand, the respondent no 5 (Dr Charu Mehrotra), who was placed at serial no 205 in the merit list, and respondent no 6 (Dr Sunita Arya), who was placed at serial no 218 in the merit list, were placed by the Director in Gokul Das Hindu Girls’ College, Moradabad and Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya, Harsh Nagar, Kanpur, respectively.
According to the petitioner, since she was placed higher in the final / revised merit list than the respondents 5 and 6, she ought to have been preferred over respondent no 5 for her placement in Gokul Das Hindu Girls’ College, if not there, then over respondent no 6 for her placement in Acharya Narendra Dev Nagar Nigam Kanya Mahavidyalaya.
But since the petitioner was not given the due placement, she filed a representation before the Director. When the representation was not addressed, she filed writ petition, which was disposed off by order dated 09.12.2021 thereby requiring the Director to decide the claim of the petitioner, in accordance with law, by a reasoned order, after giving opportunity of hearing to the respondent no 5 (Dr Charu Mehrotra).
It was also provided therein that till the representation of the petitioner is not decided, the petitioner shall not be forced to join the allotted college, namely, Mahila Mahavidyalaya, Kidwai Nagar, Kanpur.
Pursuant to the order dated 09.12.2021, the representation of the petitioner was decided and rejected by the Director by order dated 20.12.2021.
The Court noted that,
In the counter-affidavit submitted by the State-respondents, the allotment of colleges was sought to be justified by stating that it has been made in accordance with the merit and order of preference. In the counter-affidavit filed by the respondent no 5, it is stated that according to the knowledge of the respondent no 5, the petitioner had submitted a wrong preference and therefore she has been allotted Mahila Mahavidyalaya, Kidwai Nagar, Kanpur. In addition to above, another ground was taken that pursuant to the allotment the petitioner had joined on 13.01.2022 therefore, she cannot raise a grievance in respect of the allotment.
In the rejoinder-affidavit, the writ petitioner stated that if the petitioner had not joined the allotted college then her candidature would have been cancelled therefore, the petitioner had no option but to join the allotted college. In these circumstances, by joining the college, it can not be said that she waived her right to question the allotment more so, when she had already lodged a protest in respect thereof and had earlier also filed a writ petition questioning the same.
Per contra, the counsel for respondent no 5 submitted that if the matter of allotment is to be reopened afresh, several candidates placement would be affected therefore, in absence of they being party to the writ proceeding, relief sought cannot be granted to the petitioner. It has also been urged that the petitioner had joined the allotted institution therefore she has waived her right to challenge her placement. For this reason alone, the writ petition of the petitioner is liable to be dismissed and has rightly been dismissed.
The Court observed that,
From the decision of the Full Bench, it is clear that the Director has to accord due weightage to the merit list before making allotment of colleges. Thus, if we apply the ratio laid down in Alka Rani’s case, affirmed in Dr Vinay Kumar’s case, the position that would emerge is that the candidate placed higher in the order of merit would have a first right to be appointed in the college opted than the person/candidate who is lower in the order of merit irrespective of that college being lower in the order of preference than in the preference list of the candidate lower in the order of merit. But, if the person higher in the order of merit is placed in a college which was higher in his order of preference, then his/her claim to the college allotted to the other candidate, lower in the order of merit, would not sustain.
As it is clear from the discussion above that the petitioner had placed Gokul Das Hindu Girls’ College, Moradabad in the order of preference at serial no 20 but was placed in a college which was at Serial No 41 in the order of preference, whereas respondent no 5, though placed lower in the order of merit, was allotted the said college, in our view, the allotment/placement made by the Director was in the teeth of the law laid down by the Court in Alka Rani’s case (supra), which has been affirmed by the Full Bench in Dr Vinay Kumar’s case (supra).
As the Single Judge has failed to take notice of the binding decisions of this Court in Alka Rani’s case (supra) and in Dr Vinay Kumar’s case (supra), the view taken by the Single Judge cannot be sustained.
At this stage, we may deal with the other submission of the counsel for the respondent, which is, that since the petitioner had already joined the allotted college before filing the petition, she waived her right to challenge the placement made by the Director.
The Court said that,
The aforesaid submission does not appeal to us because here the petitioner had earlier filed a writ petition, in which she had specifically challenged her placement. That writ petition was disposed off by giving her liberty to represent her cause to the Director who, in turn, was required to pass a speaking order after hearing the concerned respondent (Dr Charu Mehrotra).
It was specifically directed in the order dated 09.12.2021 that till the decision on the representation, the petitioner shall not be forced to join Mahila Mahavidyalaya, Kidwai Nagar, Kanpur. It is only after the representation was decided that she had joined the college, without specifically giving up her right to challenge the order, because if she had not joined, her candidature would have been cancelled. In these circumstances, where the petitioner had been litigating for her cause, it cannot be said that she had waived her right to challenge the placement.
“We also do not accept the submission of the counsel for respondent no 5 that all the candidates were required to be impleaded in the writ proceedings. The reason is that the writ petitioner was seeking placement in the college where the respondent no 5 had been appointed though being lower in the order of merit than the petitioner. She was not seeking relief against any other person. In such circumstances, it was not required of her to implement all the selected candidates. Otherwise, once the allocation/placement is questioned and adjudicated upon, it is for the Director to adjust the allocation of colleges as per law”, the Court further said while allowing the appeal.
“For all the reasons recorded above, we are unable to agree with the view taken by the Single Judge. The judgment and order of the Single Judge dated 20.06.2022 is hereby set aside. The writ petition of the petitioner is allowed.
The order of the Director dated 20.12.2021 is set aside and a direction is issued to the Director to pass a fresh order in respect of placement of the petitioner, as represented by her vide representation dated 16.12.2021, in accordance with the law, preferably, within a period of four weeks from the date a copy of this order is placed in his office”, the Court ordered.