# Raj Kumar v. State of U.P. & Ors

- **Citation:** (2020) 7 ILRA 237
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-26
- **Case number:** Writ A No. 2838 of 2020
- **Bench:** Bala Krishna Narayana, Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-state-of-u-p-ors-45873
- **Pages:** 7

## Headnote

Law
-
Appointment/Recruitment
-
Sanjay
Gandhi Post Graduate Institute Act, 1983:
Section 12; Sanjay Gandhi Post Graduate
Institute
First
Rules,
2011
-
No
investigation into allegation of malafide
can be directed by the Court if detail of
the particulars and supporting documents
are not brought on the record by the
petitioner - Petitioner has made wild and
reckless allegations of malafides without any
particular or materials. (Para 10 to 16)

B. Scope of judicial review in respect of
selection and appointment of holder in
office which carries high responsibility in
the administration - In the absence of the
statutory provision, the administrative authority
is under no legal obligation to record reason in
support of its decision. The function of the
Selection Committee is neither judicial nor
adjudicatory. It is purely administrative. In the
academic matters, the Courts have a very
limited role particularly when no malafides have
been alleged against the experts constituting
the selection committee. It would normally be
prudent, wholesome and safe for the Courts to
238 INDIAN LAW REPORTS ALLAHABAD SERIES
leave the decisions to the academicians and
experts. (Para 20, 23)

No illegality or irregularity whatsoever has been
committed by the selection committee in respect
of selection and appointment of the respondent
No. 3 on the post of Director of the Institution in
question. (Para 25)

Writ Petition dismissed. (E-4)

Precedent followed:

## Text

7 All. Raj Kumar Vs. State of U.P. & Ors.
237
under Section 18 of the Act would amount
to reduction in rank so as to require
approval of the Board need not be
considered here as whether or not it is a
reduction in rank, it is clear that it amounts
to reduction of emoluments. The petitioner
is entitled to the salary for the post of
Principal and reverting her, as a Lecturer
would undoubtedly affect the emoluments
to which she is entitled. The language of
Section 21 of the Act is wide enough to
cover within its scope the order impugned
in this writ petition."....

10. Even though the promotion as
Principal on purely ad hoc basis may not be
treated as a promotion in rank, the substantive
post of the teacher being still that of lecturer but
it is clear that Section 18 creates a right in
favour of the senior most teacher to be given a
promotion on adhoc basis as Principal and a
person appointed on the basis of such seniority
cannot be divested of the right to work as ad
hoc Principal unless the statute so provides and
no such provision has been brought to my
notice. In such cases, if the ad hoc Principal
commits any misconduct such as is alleged in
the present case in the counter-affidavit, the
power of suspension can be invoked."

12- For all the reasons afore-stated, the
impugned order dated 24.12.2019 passed by the
Joint Director of Education 7th Region,
Gorakhpur (respondent no.1), impugned order
dated 26.12.2019 passed by the District
Inspector of Schools, Kushinagar (respondent
no.2) and the impugned order dated 26.12.2019
passed by the Authorised Controller, Janta Inter
College, Soha, Mathiya, Kushinagar are hereby
quashed. Liberty is granted to the respondent
no.3 to proceed against the petitioner in
accordance with law, if lawfully required.

13- With the aforesaid observations, the
writ petition is allowed.
----------
(2020)07ILR A237
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.02.2020

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ A No. 2838 of 2020

Raj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shrawan Dwivedi, Sri Chandra Bhan
Gupta

Counsel for the Respondents:
C.S.C.

A.
Education/Service
Law
-
Appointment/Recruitment
-
Sanjay
Gandhi Post Graduate Institute Act, 1983:
Section 12; Sanjay Gandhi Post Graduate
Institute
First
Rules,
2011
-
No
investigation into allegation of malafide
can be directed by the Court if detail of
the particulars and supporting documents
are not brought on the record by the
petitioner - Petitioner has made wild and
reckless allegations of malafides without any
particular or materials. (Para 10 to 16)

B. Scope of judicial review in respect of
selection and appointment of holder in
office which carries high responsibility in
the administration - In the absence of the
statutory provision, the administrative authority
is under no legal obligation to record reason in
support of its decision. The function of the
Selection Committee is neither judicial nor
adjudicatory. It is purely administrative. In the
academic matters, the Courts have a very
limited role particularly when no malafides have
been alleged against the experts constituting
the selection committee. It would normally be
prudent, wholesome and safe for the Courts to
238 INDIAN LAW REPORTS ALLAHABAD SERIES
leave the decisions to the academicians and
experts. (Para 20, 23)

No illegality or irregularity whatsoever has been
committed by the selection committee in respect
of selection and appointment of the respondent
No. 3 on the post of Director of the Institution in
question. (Para 25)

Writ Petition dismissed. (E-4)

Precedent followed:

1. Tara Chand Khatri Vs Municipal Corporation
of Delhi, (1997) 1 SCC 472 (Para 11)

2. Utkal University Vs Dr. Narsinghcharan
Sarangi, (1999) 2 SCC 193 (Para 12)

3. Purushottam Kumar Jha Vs State of
Jharkhand and others, (2006) 9 SCC 458 (Para
13)

4. M.VS Thimaiah Vs UPSC, (2008) 2 SCC 119
(Para 14)

5. University of Mysore etc. Vs C.D. Govinda Rao
and Anr., AIR 1965 SC 491 (Para 18)

6. R.S. Dass Vs Union of India, AIR 1987 SC 593
(Para 20)

7. National Institution of Mental Health Vs Dr. K.
Kalyana Raman, AIR 1992 SC 1806 (Para 20)

8. UPSC Vs Hiranyalal Dev, AIR 1983 SC 1069
(Para 20)

9. The Chancellor Vs Dr. Bijayanand Kar, (1994)
1 SCC 169 (Para 21)

10. B.C. Mylarappa Vs Dr. Venkatasubbaiah,
(2008) 14 SCC 306 (Para 22)

11. Basavaiah (Dr.) Vs Dr. H.L. Ramesh, (2010)
8 SCC 372 (Para 23)

12. Transport and Dock Workers Union Vs
Mumbai Port Trust, (2011) 2 SCC 575 (Para 24)

Petition
challenges
order
dated
25.01.2020, issued by Visitor, Sanjay
Gandhi Post Graduate Institute of Medical
Sciences, Lucknow.

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard counsel for the petitioner
and learned Standing Counsel appearing on
behalf of respondent no. 2.

2. The petitioner has preferred the
present writ petition with the following
prayers:-

"I) issue a writ, order or direction
in the nature of certiorari, quashing the
order dated 25.1.2020 issued by the Visitor,
respondent no. 2 (Annexure : 5 to the writ
petition) ;

ii) issue a writ, order or direction
in the nature of certiorari, quashing the
entire proceeding of the Committee which
recommended the panel of names to the
Visitor for filing up the post of Director,
Sanjay Gandhi Post Graduate Institute of
Medical Sciences, Lucknow pursuant to the
advertisement dated 5.10.2019 (Annexure :
1 to the writ petition) ;

iii) issue a writ, order or
direction in the nature of mandamus,
directing respondents to reconstitute the
Committee under section 12 of the Act of
1983,
complete
the
proceeding
of
recommendation of the panel of names of
three persons by the committee and
appointment by the Visitor on the post of
Director, Sanjay Gandhi Post Graduate
Institute of Medical Sciences, Lucknow
strictly in accordance with law ;

iv) issue such other appropriate
writ, order or direction in the nature of
writ, which this Hon'ble Court may deem fit
and proper in the circumstances of the case
7 All. Raj Kumar Vs. State of U.P. & Ors.
239
to which the petitioner be entitled under
law ; and

v) award costs to the petitioner."

3. Facts in brief as contained in the
writ petition are that an advertisement was
issued by the Governor of the State inviting
applications for appointment of Director,
Sanjay Gandhi Post Graduate Institute of
Medical Sciences, Lucknow (hereinafter
referred to as the SGPGI). The institute in
question was constituted under the Sanjay
Gandhi Post Graduate Institute Act, 1983
and Rules framed thereunder namely
Sanjay Gandhi Post Graduate Institute First
Rules, 2011. The petitioner being a fully
eligible candidate applied for the post of
Director as per the aforesaid advertisement
on 15.10.2019. The petitioner is at present
working on the post of Vice Chancellor
U.P. University of Medical Sciences, Saifai
Etawah. The provision for appointment on
the post of Director are contained under
section 12 of the Act of 1983. The relevant
provisions are reproduced below:-

"Director 12. (1) There shall be
a Director of the Institute who shall be
appointed
by
the
Visitor
on
the
recommendation
of
a
committee
consisting of the following members,
namely :-

(a) the President of the Institute;

(b) one person who is a Judge of
the High Court at Allahabad to be
nominated by the Visitor, who shall also be
the Convener of the committee.

(2) The committee constituting
under sub-section (1) shall have as
Advisers two medical experts to be
nominated by the Visitors;

(3) Whenever a vacancy occurs
or is likely to occur in the office of Director,
the committee constituted in accordance
with the provisions of sub-section (1) shall
prepare a panel of names of three persons
who are in its opinion suitable to hold the
said office.

(4) The committee shall forward
to the Visitor, the panel of names prepared
by it, together with a concise statement
showing the academic qualifications and
other distinctions of each of the persons
included in such panel, but shall not
indicate any order of preference.

(5) That Visitor shall appoint the
Director out of the panel of names
submitted to him under sub-section (4)."

4. In paragraph 8 of the writ petition it
is stated that in the selection committee
there should be two Medical Experts as
adviser nominated by the Visitor. In this
regard it is stated that the Medical Experts
who were nominated by the Visitor as
advisers in the committee are junior to the
petitioner. It is further stated that there is no
provision under section 12 of the Act of
1983 for taking interview for the post of
Director, SPGI. It is further stated in the
writ petition that against the provisions of
the Act of 1983 the committee interviewed
the candidates in the presence of Dr.
Rajneesh Dubey who is Principal Secretary,
Medical Health & Education, Government
of U.P. It is further stated in the writ
petition that no person, except the members
of
the
committee
is
authorized
to
participate in the meeting but wholly
illegally Dr. Rajneesh Dubey actively
participated in the proceeding for making
recommendation to the Visitor. It is further
stated that the petitioner faced the interview
on 04.01.2020 though there was no
240 INDIAN LAW REPORTS ALLAHABAD SERIES
provision for taking interview for the post
of
Director,
SPGI.
Subsequently
the
aforesaid committee prepared a panel
contains names of three persons who were
in its opinion suitable to hold the office of
Director and thereafter forwarded the
names to the Visitor along with concise
statement
showing
the
academic
qualifications and other distinctions of each
of the persons whose names were included
in the panel. It is argued that though the
petitioner was a highly qualified person but
his
name
was
wholly
illegally
not
recommended by the committee to the
Visitor.

5. Vide order dated 25.01.2020 issued
by the Visitor, Sanjay Gandhi Post
Graduate
Institute
of
Medical
Sciences/respondent
no.
2
appointed
professor
(Dr.)
Radha
Krishna
Dhiman/respondent no. 3 as Director,
SPGI. It is argued by the counsel for the
petitioner that the appointment of the
respondent no. 3 by the respondent no. 2 is
bad in the eyes of law since the petitioner is
more
meritorious
candidate
than
respondent no. 3.

6. Being aggrieved against the action
taken by the respondent no. 2 in respect of
appointment of the respondent no. 3 as
Director of the Institute, the petitioner has
preferred the present writ petition.

7. Although in certain paragraphs
allegations of malafide have been made in
respect of the selection of respondent no. 3
on the post of Director of the Institute but
no
document
whatsoever
has
been
submitted by the petitioner in support of the
allegations made in the writ petition.
Further no argument in respect of the
malafide in selection of respondent no. 3
whatsoever has been raised by the counsel
for the petitioner. Only arguments raised by
the counsel for the petitioner before the
Court is that the petitioner is more
meritorious than respondent no. 3 for
selection and appointment on the post of
Director of the Institute qua respondent no.
3 as such the entire selection done by the
selection committee is bad in the eyes of
law.

8.

Learned
Standing
Counsel
appearing on behalf of state-respondents
argued that selection and appointment of
the respondent no. 3 on the post of Director
of Institute is as per the provisions
contained in law. It is further argued that no
documents whatsoever have been brought
on record in support of the allegations
made against the selection of respondent
no. 3, as such those allegations can not be
looked into by the Court in the absence of
supporting material.

9. Heard counsel for the parties and
perused the record.

10. It is well settled law that the Court
should refuse to consider the allegations of
the malafide if supporting documents are
not brought on record in this regard. The
burden of establishing malafide is very
heavy on the person who alleges it. The
Court therefore, should be slow to draw
dubious inference from incomplete facts
placed
before
it
by
the
petitioner
particularly when the imputations are grave
and they are made against the holder of an
office which has high responsibility in the
administration.

11. The Supreme Court in case of
Tara Chand Khatri Vs. Municipal
Corporation of Delhi 1997(1) SCC 472,
has observed that no investigation into
allegation of malafide can be directed by
7 All. Raj Kumar Vs. State of U.P. & Ors.
241
the Court if detail of the particulars and
supporting documents are not brought on
the record by the petitioner.

12. In the case of Utkal university
vs. Dr. Narsinghcharan Sarangi reported
in (1999) 2 SCC 193, the Apex Court has
held that: "allegations of bias must be
carefully examined before any selection
can be set aside. In the first place, it is the
joint responsibility of the entire selection
committee to select a candidate who is
suitable for the post. When experts are
appointed to the committee for selection,
the selection is not to be lightly set aside
unless there is adequate material which
would indicate a strong likelihood of bias
to show that any member of selection
committee had a direct personal interest in
appointing any particular candidate."

13. Similar view was again taken by
the Supreme Court in case of Purushottam
Kumar Jha Vs. State of Jharkhand and
others, (2006) 9 SCC,458. The relevant
part of the order reads as under:-

"It is well settled that whenever
allegations as to mala fides have been
levelled, sufficient particulars and cogent
materials making out prima facie case must
be set out in the pleadings. Vague
allegation or bald assertion that the action
taken was mala fide and malicious is not
enough. In absence of material particulars,
the court is not expected to make 'fishing'
inquiry into the matter. It is equally wellestablished and needs no authority that the
burden of proving mala fides is on the
person making the allegations and such
burden is 'very heavy'. Malice cannot be
inferred or assumed. It has to be
remembered that such a charge can easily
be 'made than made out' and hence it is
necessary for courts to examine it with
extreme care, caution and circumspection.
It has been rightly described as "the last
refuge of a losing litigant."

14. In the case of M.V. Thimaiah vs.
UPSC, (2008) 2 SCC page 119, the Apex
Court has held that "The allegation of mala
fide is very easy to be leveled and it is very
difficult to substantiate it, specially in the
matter of selection or whoever is involved
in the decision making process. People are
prone to make such allegations but the
courts owe a duty to scrutinize the
allegation meticulously because the person
who is making the allegation of animus
does sometimes mala fide due to his nonselection. He has a vested interest.
Therefore, unless the allegations are
substantiated beyond doubt, till that time
the court cannot draw its conclusion."

15. From perusal of the same it is
clear that the law is well settled by the
Supreme Court that the Court are refrain
themselves from expressing opinion on
points not raised or not fully and effectively
argued by counsel on either side.

16. Applying the aforesaid principle
in the present case we find that the
petitioner has made wild and reckless
allegations of malafides without any
particular or materials.

17. The only argument raised by the
counsel for the petitioner before the Court
is that the petitioner is more meritorious
than respondent no. 3 and as such the
selection and appointment of respondent
no. 3 is bad in the eyes of law.

18. Before we advert to the
submissions on the scope of the judicial
review
in
respect
of
selection
and
appointment of holder in office which
242 INDIAN LAW REPORTS ALLAHABAD SERIES
carries
high
responsibility
in
the
administration, following legal authorities
are relevant in this regard.

19. In the case of University of
Mysore,
AIR
1965
SC
491,
the
Constitution Bench of the Supreme Court
has laid down as under:-

"Boards of appointments are
nominated by the universities and when
recommendations made by them and the
appointments following on them, are
challenged before courts, normally the
courts should be slow to interfere with the
opinions expressed by the experts. There is
no allegation about malafides against the
experts who constituted the present board;
and so, we think, it would normally be wise
and safe jt-pil-92-96 & wp-1901-10-os--
f.doc for the to leave the decisions of
academic matters to experts who are more
familiar with the problems they face then
the courts generally can be".

20. In the cases of R.S. Dass v. Union
of India, AIR 1987 SC 593, National
Institution of Mental Health vs. Dr. K.
Kalyana Raman AIR 1992 SC 1806 and
UPSC vs. Hiranyalal Dev AIR 1983 SC
1069, the Apex Court has held that the
principles of natural justice do not require
an administrative authority or a selection
committee or an examiner to record reasons
for the selection or non-selection of a
person. In the absence of the statutory
provision, the administrative authority is
under no legal obligation to record reason
in support of its decision. It is held that the
function of the Selection Committee is
neither judicial nor adjudicatory. It is
purely administrative.

21. In the case of The Chancellor Vs.
Dr. Bijayanand Kar reported in (1994) 1
SCC page 169, the Apex Court has
emphasized that the decisions of the
academic authorities should not ordinarily
be interfered with by the Courts. Whether a
candidate fulfills the requisite qualification
or not is a matter, which should be entirely
left to be decided by the academic bodies
and the concern selection committees
which invariably consists on the experts of
subjects relevant to the selection.

22. In the case of B.C. Mylarappa
vs. Dr. R. Venkatasubbaiah reported in
(2008) 14 SCC page 306 the Apex Court
has
reiterated
that:
"this
court
has
repeatedly held that the decisions of the
academic authorities should not ordinarily
be interfered with by the courts. Whether a
candidate
fulfills
the
requisite
qualifications or not is a matter which
should be entirely left to be decided by the
academic
bodies
and
the
concerned
selection committees, which invariably
consist of experts on the subjects relevant
to the selection."

23. These principles have been again
reiterated and reaffirmed by the Apex Court
in the case of Basavaiah (Dr.) Vs. Dr. H.L.
Ramesh (2010) 8 SC 372 wherein it is held
that: "it is the settled position that the
Courts have to show deference and
consideration to the recommendation of an
expert
committee
consisting
of
distinguished experts in the field. In the
academic matters, the Courts have a very
limited role particularly when no malafides
have been alleged against the experts
constituting the selection committee. It
would normally be prudent, wholesome
and safe for the courts to leave the
decisions to the academicians and experts.
As a matter of principle, the courts should
never make an endeavour to sit in appeal
over the decisions of the experts. The
courts must realize and appreciate its
7 All. Sanjay Kumar Tiwari Vs. State of U.P. & Ors.
243
constraints and limitations in academic
matters."

24. In the case of Transport and
Dock Workers Union vs. Mumbai Port
Trust reported in (2011) 2 SCC page 575,
the Apex Court has held that "Excessive
interference by the judiciary in the
functions of the executive is not proper. In
several decisions, we have held that there
must be judicial restraint in such matters."
It was further held that Judges must
maintain
judicial
self-restraint
while
exercising the powers of judicial review of
administrative
of
judicial
decisions.
Adjudication must be done within the
system of historically validated restraints
and conscious minimization of the Judges'
preferences. The Court must not embarrass
the administrative authorities and must
realize that administrative authorities have
expertise in the filed of administration
while
the
Court
does
not.
In
the
administrative matters the Court should,
therefore, ordinarily defer to the judgment
of the administrators unless the decision is
clearly violative of some statutes or is
shocking arbitrary.

25. From perusal of the aforesaid
judgments it is clear that the parameters of
the judicial review are therefore well defined
and it is well settled that the court cannot sit
in appeal over the decision taken by the
experts in academic field or interfere with the
decision on specious grounds of malafides or
bias. Nonetheless, the judicial restraint does
not confer unfettered and unbridled powers
on the selection committee to act arbitrarily
or illegally in total violations of statutory
rules. In such situations, it is within the
jurisdiction of the Court to scrutinize the
decision-making process and test the decision
on the touch stone of illegality, irrationality or
procedural impropriety. In so far this case is
concerned, from perusal of the facts as
narrated above, we are of the opinion that no
illegality or irregularity whatsoever has been
committed by the selection committee in
respect of selection and appointment of the
respondent no. 3 on the post of Director of
the Institution in question. No material
whatsoever has been brought on record
neither any argument has been made
regarding malafide or bias in respect of the
selection of the respondent no. 3. In the
absence of the same, no relief can be granted
to the petitioner, in so far as the present writ
petition is concerned.

26. For the reasons mentioned above,
we find that the writ petition lacks merit and
is liable to be dismissed.

27. Accordingly the writ petition is
dismissed.

28. No order as to cost.
----------
(2020)07ILR A243
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.07.2020

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Service Single No. 3922 of 2020

Sanjay Kumar Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Gaurav Mehrotra, Shubham Tripathi

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999: -