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Judgment
The UP Higher Education Service Commission (the Commission) published the advertisement No. 20 for selecting candidates over the post of lecturers in the degree and post graduate colleges in the State. Among others, it included posts of lecturer in political science. Out of these three posts were in Meerut College, Meerut (the Meerut College). It also included some posts of Janta Vadic Degree College, Baraut, Meerut (the Janta College). The select list was declared in 1996. Respondent No. 5 (the contesting respondent) and Respondent No. 6 had given their choice for the Meerut College. They were selected and were placed at serial No. 29 and 9. Apart from these two, two other candidates, who were placed at serial Nos. 7 and 8 (higher than both of them), had also given their choice for the Meerut College. The candidates at serial Nos. 7 and 8 and the contesting respondents were appointed in the Meerut College. However, respondent No. 6, who was higher in merit than the contesting respondent was appointed in the Janta College.
Respondent No. 6 filed writ petition No. 27380 of 1996 (the earlier WP) for a direction that she should be appointed in Meerut College as she is higher in merit than the contesting respondent. This writ petition was allowed. The operative portion of the order is as follows:
In the circumstances of the case the writ petition is allowed and the order dated 6.7.96 Annexure-4 to the writ petition and the order dated 25.7.96 are quashed. The petitioner [Respondent No. 6 here] shall be given appointment as lecturer in political science in Meerut College, Meerut forthwith and respondent No. 6 [the contesting respondent here] can be posted as lecturer in Janta Vedic Inter College, Baraut, District Meerut in place of the petitioner.
There is typing mistake in this order. It should be Janta Vedic degree College instead of Janta Vedic Inter College. However this not material for the controversy in issue.
The petitioner was appointed in the Political Science Department in the Janta College in the year 1983. He was made head of Political Science Department in the year 1993. He was interested in getting himself transferred to the Meerut College. In the late 1990''s the State Government as well as the Chancellor took initiative and issued some GOs enabling transfer from one government aided college to another aided college. The petitioner, with consent of committees of management of both colleges, applied for his transfer from the Janta College to the Meerut College. The Vice Chancellor approved this transfer on 2.8.1999. The petitioner also joined his duties in the Meerut College on 14.8.1999.
The provision empowering transfer as well as transfer of the petitioner took place during pendency of the earlier WP filed by respondent No. 6. One another event took place during pendency of the earlier writ petition. A division bench of this Court in CMWP No. 40395 of 2000 Swami Sahjanand Post Graduate College, Ghazipur Vs. Purvanchal University, Jaunpur and others, held that a post in the degree college can not be filled by means of transfer as there is no such provision in the UP Higher Education Service Commission Act, 1980 (the Higher Education Act). In this case neither the petitioner was party nor his transfer was challenged.
After decision in the earlier WP, the contesting respondent filed an application before the State Government. This application was allowed on 18.7.2003 and by which transfer of the petitioner to the Meerut College was cancelled on the basis of the decision in the Swami Sahjanand case. The petitioner was sent back to the Janta College and the contesting respondent was appointed over that post in the Meerut College. Thereafter the Director of Education and the Committee of Management passed consequential orders on 21.7.2003. Hence the present writ petition.
We have hears Sri Ashok Khare, Sri Anoop Trivedi counsel for the petitioner, the standing counsel, Sri PK Jain, Sri S. Kumar, Sri RK Srivastava and Sri Anurag Khana for the respondents.
The counsel for the petitioner submits that:
(i) The State Government has passed the impugned order dated 27.8.2003 without affording any opportunity to the petitioner and is void.
(ii) The post over which the petitioner was working was never advertised. The contesting respondent can not be appointed over the same.
(iii) The state government has no power to cancel the transfer.
(iv) The transfer order dated 2.8.1999 of the petitioner was neither challenged before the division bench in the Swami Sahjanand case nor in any other writ petition. It can not been cancelled by the State Government.
(v) The State Government has enacted UP Higher Education Service Commission (Second Amendment) Act, 2004 (UP Act No. 30 of 2004) and have amended Section 12 of the Higher Education Act. By the amendment all transfers which have been made under GO dated 17th August 1997 have been validated. The petitioner''s transfer was in pursuance of this GO and has been validated.
Sri S. Kumar counsel for the respondent No. 5 submits that:
(i) Transfer order of the petitioner was passed by the Vice Chancellor who had no power to transfer.
(ii) There is no provision for transfer in the Meerut University and as such transfer is void.
(iii) The transfer order was obtained by giving false information and is void.
(iv) The transfer order is not protected by the amending Act.
It is not necessary to decide different submissions advanced by the counsel for the parties as in our opinion the writ petition is liable to be allowed on the first submission of the counsel for the petitioner.
It is not disputed that after transfer order dated 2.8.1999 the petitioner joined the Meerut College. He was also teaching there. By order of the State Government dated 18.7.2003, this order has been set aside. The petitioner in paragraph Nos. 27, 32 and 33 has stated that no opportunity was given to the petitioner before passing the impugned order. There is no specific denial of the same. In view of this it is held that the impugned order was passed without any opportunity to the petitioner.
Rights had already accrued in favour of the petitioner. The impugned order has civil consequences. It can not be passed without affording opportunity to the petitioner. In view of this, order dated 18.7.2003 and the consequential order passed on the basis of the same namely order dated 21.7.2003 passed by Director as well as order of Committee of Management are illegal and are quashed.
We clarify that
It will be open to the State Government to pass fresh order after affording opportunity to the petitioner;
The contesting respondent is a selected candidate, she may be appointed in Janta Degree College Baraut, Meerut or on any other vacancy in accordance with law.
With these observations the writ petition is allowed.