# Rajeev Kumar v. Kamlesh Kumar Singh & Ors

- **Citation:** (2022) 10 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-28
- **Case number:** Special Appeal No. 395 of 2022
- **Bench:** Devendra Kumar Upadhyaya, Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-kumar-v-kamlesh-kumar-singh-ors-47854
- **Pages:** 10

## Headnote

A. Administrative Law - Nomination of
Chairman - Jurisdiction - U.P. Technical
Education
Act,
1962
-
Scheme
of
Administration: Clause 7 - It is observed
that cancellation of earlier panel and
preparation of fresh panel because the
earlier panel was non-existent, is not
acceptable
for
the
reason
that
the
occasion
for
the
Committee
of
Management to prepare new panel did not
arise in this case as the State Government
had not taken any decision on the first
panel
before the
second
panel
was
proposed
by
the
Committee
of
Management. (Para 28)

(1) Interpretation - The answer to the point
for determination that whether in terms of the
provisions contained in Clauses 7(2)(a) and
7(2)(b) of the Scheme of Administration, the
State Government could have acted upon the
earlier panel and whether appointment from the
said panel could have been made, though one
of the persons of panel suggested by the
Committee of Management of the institution,
had died., lies in correctly interpreting the
provision contained in Clause 7(2)(b) of the
Scheme of Administration. The said provision
clearly states that in case no one is
nominated as Chairman of the Committee
of Management of the institution from
amongst
the
persons
of
the
panel
suggested
by
the
Committee
of
Management,
the
Committee
of
Management shall submit a second panel
containing three names. (Para 17, 18)

(2) Jurisdiction to recommend second
panel - A plain reading of Clause 7(2)(b)
of the Scheme of Administration reveals
that
second
panel
can
be
recommended/sent/proposed
by
the
Committee of Management only if the
State Government does not nominate any
person from the first panel. It would simply
mean that the Committee of Management will
assume jurisdiction to recommend the second
panel if the State Government rejects all the
names in the first panel and refuses to nominate
anyone of them. (Para 19)

In the instant case, the process of nomination of
Chairman in case of any vacancy in the office of
Chairman will start from the resolution of the
Committee of Management proposing a panel of
three persons, as per Clause 7(2)(a) of the
approved
Scheme
of
Administration.
The
process
further
proceeds
with
the
recommendation to be made by the Director,
Technical
Education,
U.P.
on
the
panel
suggested/sent/proposed by the Committee of
Management and this process comes to an end
only
once
the
decision
on
the
panel
proposed/sent/suggested by the Committee of
Management and on the recommendation made
814 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Director, Technical Education, is taken by
the State Government. The process thus
terminates only once the decision is taken by
the State Government. In our considered
opinion, the Committee of Management will
assume jurisdiction to propose/send/suggest the
second panel only on completion/termination of
the
process
which
commences
proposal/submission of first panel by the
Committee of Management. (Para 20)

In the pr

## Text

10 All. Rajeev Kumar Vs. Kamlesh Kumar Singh & Ors.
813
employee is unmarried. Therefore, petition
is having no force and liable to be
dismissed.

8. So far as claim of petitioner about
her maintenance is concerned, it is open for
her to seek appropriate remedy against
respondent no. 4, if any Rule provides for
the same.

9. Accordingly, writ petition is
dismissed with aforesaid observations. No
order as to costs.
----------
(2022) 10 ILRA 813
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.09.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal No. 395 of 2022

Rajeev Kumar ...Appellant
Versus
Kamlesh Kumar Singh & Ors.
 ...Respondents

Counsel for the Appellant:
Lalta Prasad Misra

Counsel for the Respondents:
Amrendra Nath Tripathi, C.S.C.
A. Administrative Law - Nomination of
Chairman - Jurisdiction - U.P. Technical
Education
Act,
1962
-
Scheme
of
Administration: Clause 7 - It is observed
that cancellation of earlier panel and
preparation of fresh panel because the
earlier panel was non-existent, is not
acceptable
for
the
reason
that
the
occasion
for
the
Committee
of
Management to prepare new panel did not
arise in this case as the State Government
had not taken any decision on the first
panel
before the
second
panel
was
proposed
by
the
Committee
of
Management. (Para 28)

(1) Interpretation - The answer to the point
for determination that whether in terms of the
provisions contained in Clauses 7(2)(a) and
7(2)(b) of the Scheme of Administration, the
State Government could have acted upon the
earlier panel and whether appointment from the
said panel could have been made, though one
of the persons of panel suggested by the
Committee of Management of the institution,
had died., lies in correctly interpreting the
provision contained in Clause 7(2)(b) of the
Scheme of Administration. The said provision
clearly states that in case no one is
nominated as Chairman of the Committee
of Management of the institution from
amongst
the
persons
of
the
panel
suggested
by
the
Committee
of
Management,
the
Committee
of
Management shall submit a second panel
containing three names. (Para 17, 18)

(2) Jurisdiction to recommend second
panel - A plain reading of Clause 7(2)(b)
of the Scheme of Administration reveals
that
second
panel
can
be
recommended/sent/proposed
by
the
Committee of Management only if the
State Government does not nominate any
person from the first panel. It would simply
mean that the Committee of Management will
assume jurisdiction to recommend the second
panel if the State Government rejects all the
names in the first panel and refuses to nominate
anyone of them. (Para 19)

In the instant case, the process of nomination of
Chairman in case of any vacancy in the office of
Chairman will start from the resolution of the
Committee of Management proposing a panel of
three persons, as per Clause 7(2)(a) of the
approved
Scheme
of
Administration.
The
process
further
proceeds
with
the
recommendation to be made by the Director,
Technical
Education,
U.P.
on
the
panel
suggested/sent/proposed by the Committee of
Management and this process comes to an end
only
once
the
decision
on
the
panel
proposed/sent/suggested by the Committee of
Management and on the recommendation made
814 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Director, Technical Education, is taken by
the State Government. The process thus
terminates only once the decision is taken by
the State Government. In our considered
opinion, the Committee of Management will
assume jurisdiction to propose/send/suggest the
second panel only on completion/termination of
the
process
which
commences
proposal/submission of first panel by the
Committee of Management. (Para 20)

In the present case, before the process which
commenced on resolution of the Committee of
Management proposing three names in the first
panel could logically culminate in the decision by
the State Government, the Committee of
Management cancelled the earlier panel and
proposed a new panel. Such a course, is not
envisaged, neither is it provided for in the
Clauses 7(2)(a) and 7(2)(b) of the approved
Scheme of Administration. (Para 21)

(3)
"Not
taking
decision"
and
"not
nominating" are two different acts -
Forwarding the name of three different
persons as second and subsequent panel
is not envisaged in a situation where the
State Government does not take decision.
It is rather permissible only if the State
Government takes a decision and does not
nominate any of the person from the
panel.
Clause
7(2)(b)
states
that
the
Committee of Management shall recommend
second panel in case the State Government
does not nominate a person to be Chairman.
Thus,
pending
decision
by
the
State
Government Committee of Management will not
get authority to recommend the second panel.
(Para 24)

(4) Insistence of the learned counsel
representing
the
respondent
No.
1petitioner that it will be incumbent upon
the State Government to take decision to
nominate the Chairman only if the panel
consists
of
three
persons
in
all
circumstances and situations, is thus, in
our opinion, not correct. Any panel prepared
by
the
Committee
of
Management
and
forwarded
after
recommendation
by
the
Director, Technical Education will exhaust only
on decision on the said panel is taken by the
State Government. (Para 25)
(5) By shrinkage of panel of three persons
to two, no individual right gets infringed -
To be included in the panel for nomination
as
Chairman
by
the
Committee
of
Management cannot be said to be right of
any individual. It is the right of the Committee
of Management conferred on it by the Clause
7(2) of the approved Scheme of Administration
to prepare a panel of three persons of its
choice. Since the remaining two persons on the
first panel were also the persons of choice of
the Committee of Management, as such by
shrinkage of panel of three persons to two, no
individual right gets infringed. Even if, on
account of such exigency as death the
panel shrinks to two persons, before final
decision for nomination is taken by the
State Government, the person who may
be nominated as Chairman will still be the
choice of Committee of Management. (Para
26, 27)

B. Independent application of mind - It
has been argued that the decision of the State
Government cannot be said to be the decision
emanating from independent application of
mind by the authority who took decision. It has
been observed by the Court that different
departments of the State Government have
been created for convenience. Any decision of
the State Government in a particular
department, even if it is based on opinion
of
Law
Department
or
any
other
department, cannot be said to be vitiated
merely because opinion of some other
department was taken before arriving at
the decision in question. (Para 29)

C. Absence of challenge to the order
dated 13.01.2021 - It is argued that in
absence of challenge to the order dated
13.01.2021, passed by the Director, Technical
Education whereby a fresh panel was invited,
the procedure which followed thereafter
cannot be faulted with. Court held that the
letter
of
the
Director,
Technical
Education, dated 13.01.2021 was only
an intermediate step in the process
which culminated in the decision of the
State
Government
finally
taken
on
12.05.2022 whereby the appellant was
nominated as a Chairman of the Committee of
Management. (Para 30, 31)
10 All. Rajeev Kumar Vs. Kamlesh Kumar Singh & Ors.
815
Special appeal allowed. (E-4)

Present special appeal lays a challenge to
the judgment and order dated 07.09.2022,
passed by the learned Single Judge in
Writ-C No. 2957 of 2022 which setting
aside the order of the State Government
dated
12.05.2022,
nominating
the
appellant as Chairman of the Committee
of Management of Town Polytechnic,
Ballia.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Saurabh Srivastava, J.)

1. This intra-court appeal filed under
Chapter VIII Rule 5 of the Rules of the Court
lays a challenge to the judgment and order
dated 07.09.2022, passed by the learned Single
Judge in Writ-C No.2957 of 2022 whereby
after setting aside the order of the State
Government dated 12.05.2022, nominating the
appellant as Chairman of the Committee of
Management of Town Polytechnic, Ballia, a
direction has been given to the Committee of
Management of Town Polytechnic, Ballia to
take decision afresh for preparing a panel of
three persons and to forward the same to the
Director, Technical Education, U.P. who, in
turn, has been directed to forward the same to
the State Government whereupon the State
Government has been directed to take decision
nominating Chairman of the Committee of
Management of the said institution.

2. Heard Dr. L.P. Mishra along with Ms.
Neha Chaddha and Sri Prafulla Tewari, learned
counsel representing the appellant, Sri Anand
Kumar
Singh,
learned
State
Counsel
representing the State-respondents, Sri Amrendra
Nath Tripathi along with Sri Anas Sherwani,
learned counsel representing the respondent
No.1-petitioner and perused the record available
before us on this Special Appeal.

3. Before adverting to the rival
submissions advanced by learned counsel
representing the parties, it is apposite to
note certain facts of the case which are
necessary for appropriate adjudication of
the issues involved in this case.

4. Town Polytechnic, Ballia is an
institution which is governed by the
provisions of U.P. Technical Education Act,
1962 and the regulations framed under the
said Act. The State has approved a Scheme
of
Administration
which,
inter-alia,
provides for constitution of the Committee
of Management to be headed by a
Chairman who is to be nominated by the
State Government.

5. The controversy in this case
commenced with the occurrence of a
vacancy in the office of the Chairman of
the Committee of Management of the
institution. Clause 7 of the approved
Scheme of Administration provides that
Chairman
of
the
Committee
of
Management shall be nominated by the
State Government. As per Clause 7(2)(v) of
the
Scheme
of
Administration,
the
Committee of Management will send a
panel of three persons for appointment of
Chairman
of
the
Committee
of
Management to the Director, Technical
Education, U.P. It further provides that the
State Government on the recommendation
of the Director, Technical Education, U.P.
shall appoint one of the three persons of the
panel which may be proposed by the
Committee of Management. Clause 7(2)(c)
of the Scheme of Administration provides
that in case the State Government does not
nominate any of the person from the panel,
the Committee of Management shall
propose the second panel containing three
names who shall be different from the
persons proposed in the first panel. Clause
816 INDIAN LAW REPORTS ALLAHABAD SERIES
7
of
the
approved
Scheme
of
Administration is quoted herein under :

"1⁄471⁄2 v/;{k izcU/k lfefr dh fu;qfDr %&

1⁄411⁄2 izcU/k lfefr dk v/;{k m0 iz0 'kklu
}kjk ukfer fd;k tk;asxk A

21⁄4v1⁄2 laLFkk dh lkslkbVh dh laLrqfr ij
izcU/k lfefr rhu ukeksa dk iSuy 1⁄4vko';d ugha fd
blds lnL; gksa1⁄2 v/;{k izcU/k lfefr dh fu;qfDr gsrq
funs'kd izkfof/kd f'k{kk m0 iz0 dks HkstsxkA

funs'kd izkfof/kd f'k{kk dh laLrqfr ij
mRrj izns'k 'kklu rhu ukeksa ds iSuy esa ls fdlh ,d
O;fDr dks v/;{k izcU/k lfefr ds in ij ukfer dj
ldrk gSA

21⁄4c1⁄2 ;fn 'kklu }kjk mijksDr iSuy esa ls
fdlh O;fDr dks v/;{k in gsrq ukfer ugha fd;k
tkrk gS rks laLFkk dh izcU/k lfefr }kjk rhu ukeksa dk
nwljk iSuy laLrqr fd;k tk;sxk tks izFke iSuy esa
'kkfey rhu ukeksa ls fHkUu gksxsaA"

6. On occurrence of vacancy in the
office of the Chairman of the Committee of
Management of the institution, a meeting of
Committee of Management is said to have
taken place on 25.11.2020 which prepared
a panel of three persons, namely, (1) Sri
Arvind Kumar Srivastava, (2) Sri Rajiv
Kumar and (3) Sri Ajay Kumar Ojha. The
decision taken by the Committee of
Management
in
its
meeting
dated
25.11.2020 was communicated by the
Secretary of the Committee of Management
to the Director, Technical Education, U.P.
by means of his letter dated 26.11.2020.
The Director, Technical Education, vide his
letter dated 01.12.2020 recommended that
out of the aforesaid three persons in the
panel prepared by the Committee of
Management, Sri Arvind Kumar Srivastava
be
nominated
as
Chairman
of
the
Committee
of
Management
of
the
institution. However, before the State
Government could take decision on the
panel proposed by the Committee of
Management and the recommendation
made by the Director, Technical Education
by means of letter dated 01.12.2020, Sri
Arvind
Kumar
Srivastava
died
and
accordingly a letter was written by the
Secretary of the Committee of Management
of the instition to the Director, Technical
Education on 06.01.2021 intimating him
about the death of Sri Arvind Kumar
Srivastava and further intimating that Sri
Kamlesh Kumar Singh (respondent No.1petitioner)
has
been
nominated
as
officiating Chairman till the meeting of the
Committee of Management is convened
and
the
Committee
of
Management
appoints an officiating Chairman.

7. The Director, Technical Education
on the said letter dated 06.01.2021
approved the nomination/appointment of
Sri Kamlesh Kumar Singh as officiating
Chairman
till
the
Committee
of
Management elected its new officiating
Chairman, vide letter dated 13.01.2021. It,
thus, appears that the nomination of Sri
Kamlesh Kumar Singh was an interim
arrangement
which
was
to
last
till
Committee of Management nominated a
new officiating Chairman. By the said
letter, a direction was issued by the
Director, Technical Education to the Joint
Director, Technical Education, Varanasi to
convene a meeting of the Committee of
Management within 15 days for preparing a
panel of three names till nomination of
regular Chairman is made.

8. The Committee of Management
held its meeting on 24.01.2021 and decided
to cancel the earlier panel and further
resolved to nominate a panel of three
persons, namely, (1) Sri Kamlesh Kumar
Singh, (2) Sri Sudhir Kumar Srivastava and
(3) Sri Kamlesh Kumar Srivastava. It was
also resolved that till the regular Chairman
is nominated by the State Government, Sri
Kamlesh Kumar Singh shall continue to
10 All. Rajeev Kumar Vs. Kamlesh Kumar Singh & Ors.
817
officiate on the said post. The new panel as
resolved by the Committee of Management
was sent to the Director, Technical
Education by means of letter dated
27.01.2021
whereupon
the
Director,
Technical Education by means of his letter
dated 22.02.2021 sent the penal to the State
Government with his recommendation to
nominate Sri Kamlesh Kumar Singh, who
was placed at Serial No.1 of the new panel,
as
Chairman
of
the
Committee
of
Management. The State Government wrote
a letter to the Director on 22.12.2021 after
seeking legal advice from the Law
Department and sought clear proposal in
the light of the legal opinion tendered by
the Law Department.

9. A perusal of the letter dated
22.12.2021 addressed to the Director,
Technical Education and written by the
State Government reveals that the Law
Department had opined that in case of
death of a person in the earlier panel, the
panel will not be incomplete nor will it
lapse.

10. The Director, Technical Education
thereafter wrote a letter dated 24.12.2021 in
pursuance of the letter of the State
Government dated 22.12.2021 making a
recommendation that the decision for
nomination of the Chairman be taken
pursuant to the earlier proposal dated
01.12.2020. On the said recommendation
made by the Director, Technical Education,
the State Government took a decision to
nominate the appellant as Chairman of the
Committee
of
Management
of
the
institution which is embodied in the order
dated 12.05.2022. It is this order dated
12.05.2022 appointing the appellant as
Chairman
of
the
Committee
of
Management of the institution which was
challenged
by
the
respondent
No.1petitioner in the writ petition, which has
been decided by means of judgment and
order dated 07.09.2022, passed by the
learned Single Judge, which is under appeal
before us.

11. Learned counsel for the appellant
has vehemently argued that merely because
of the death of one of the persons named in
the earlier panel, namely, Sri Arvind Kumar
Srivastava, the earlier panel could not be
treated to have lapsed or defective in any
manner. It has further been argued by the
learned counsel for the appellant that the
State Government thus has acted lawfully
by passing the order dated 12.05.2022
nominating the appellant as Chairman of
the Committee of Management of the
institution and there is no illegality in the
said order. It has also been argued on behalf
of the appellant that on receipt of the earlier
panel with the recommendation of the
Director, Technical Education, before the
State Government could act upon and take
decision to nominate one of the persons
named in the earlier panel as Chairman of
the Committee of Management of the
institution, Sri Arvind Kumar Srivastava
died and on account of his death the panel
did not lapse and accordingly the State
Government has rightly acted upon the
earlier panel and has lawfully appointed the
appellant as Chairman of the Committee of
Management of the institution.

12. Dr. Mishra further arguing on
behalf of the appellant has submitted that
on receipt of the earlier panel since the
death of one of the persons occurred before
the decision on the said panel could be
taken by the State Government, the State
had three options. The first option available
to the State Government was that it could
have appointed one of the two remaining
persons in the first panel, secondly, it could
818 INDIAN LAW REPORTS ALLAHABAD SERIES
have rejected the panel of remaining two
persons and thirdly, the State Government
could have asked for one additional name
by the Committee of Management. His
submission, thus, is that it was not open to
the Committee of Management to have
cancelled the earlier panel and proposed the
new panel for the reason that earlier panel
had not exhausted on account of the fact
that Government had not taken any
decision on the same and in absence of any
defect or lapse in the earlier panel, on
account of death of Sri Arvind Kumar
Srivastava it was incumbent upon the State
Government to have taken the decision. He
further states that however, in its discretion,
the State Government could have rejected
the remaining two names from the first
panel and it is only after such decision that
the Committee of Management would have
assumed the jurisdiction to nominate a
fresh panel. On behalf of the appellant, it
has, thus, been argued that learned Single
Judge has not correctly construed the
provisions of Clauses 7(2)(v) and 7(2) (c)
of the approved Scheme of Administration
and has thus arrived at the conclusion
which is not borne out from the said
provisions. Further submission of the
learned counsel for the appellant is that in
the aforesaid view of the matter the finding
recorded by the learned Single Judge that
the first panel of three names stood lapsed
on account of death of one of the persons in
the panel, is not as per the Scheme of
Administration.

13. It has also been urged on behalf of
the appellant that Clauses 7(2)(v) and
7(2)(c) of the Scheme of Administration
appear to have been misread by the learned
Single Judge and he records a finding that
in all exigencies, the State Government can
act upon only in case where all the three
persons in the panel suggested by the
Committee of Management are surviving.
It has thus been urged on behalf of the
appellant that the judgment and order
passed by the learned Single Judge is
erroneous which deserves to be set aside
and the Special Appeal deserves to be
allowed.

14. Learned State Counsel while
arguing on behalf of the State-respondents
has submitted that the order passed by the
State
Government,
dated
12.05.2022
whereby the appellant was nominated as
Chairman
of
the
Committee
of
Management does not suffer from any
illegality and, in fact, the same is in
accordance with the approved Scheme of
Administration, as such the said order did
not warrant any interference by the learned
Single Judge in the writ petition filed by
the respondent No.1-petitioner.

15. Sri Amrendra Nath Tripathi,
learned counsel representing the respondent
No.1-petitioner has argued that the order
dated 13.01.2021 whereby the Director,
Technical Education had required the
Committee of Management to send a fresh
panel, was not challenged and in absence of
challenge to the said order, the earlier panel
could not have been acted upon and
accordingly no appointment from the
earlier panel could have been made. He has
further argued that the Committee of
Management had decided in its meeting
held on 24.01.2021 to cancel the earlier
panel which power is vested in the
Committee
of
Management
and
accordingly nomination of Chairman from
the panel which stood cancelled by the
Committee of Management, could not have
been made. His submission is that once the
fresh panel was proposed the earlier panel
ceased to exist. Sri Tripathi also argued that
the decision dated 12.05.2022, passed by
10 All. Rajeev Kumar Vs. Kamlesh Kumar Singh & Ors.
819
the State Government suffers from the vice
of non-application of mind as the same is
based on solely on the opinion of the Law
Department and the authority passing the
said order does not appear to have applied
his independent mind. It has further been
argued that the earlier panel could not have
been acted upon for the reason that the
panel included a dead person (Arvind
Kumar Srivastava).

16. It has also been submitted by the
learned counsel representing the respondent
No.1-petitioner that Clause 7(2)(v) uses the
words, ''a panel of three (rhu ukeksa dk iSuy)'
and on the death of Sri Arvind Kumar
Srivastava, the panel comprised of only two
living persons and hence in absence of
panel of three persons, as envisaged in
Clause
7(2)(v)
of
the
Scheme
of
Administration, the State Government erred
in appointing the appellant from the said
panel of two persons as Chairman of the
Committee
of
Management
of
the
institution. In this view, the submission is
that such course to the State Government
was not available in absence of panel of
three living persons. He has thus argued
that the learned Single Judge while passing
the judgment and order under appeal herein
has taken the correct view in the matter and
has rightly interpreted the provisions of
Clauses 7(2)(v) and 7(2)(c) of the Scheme
of Administration and has, thus, rightly set
aside the order of State Government, dated
12.05.2022, appointing the appellant as
Chairman
of
the
Committee
of
Management of the institution. He, thus,
prays that the Special Appeal may be
dismissed at its threshold.

17. On consideration of the rival
submissions made by the learned counsel
for the respective parties, the point for
consideration which emerges in this case is
as to whether in terms of the provisions
contained in Clauses 7(2)(v) and 7(2)(c) of
the Scheme of Administration, the State
Government could have acted upon the
earlier panel and whether appointment from
the said panel could have been made,
though one of the persons of panel
suggested
by
the
Committee
of
Management of the institution, had died.

18. The answer to the point for
determination, as culled out above, lies in
correctly
interpreting
the
provision
contained in Clause7(2)(c) of the Scheme
of Administration. The said provision
clearly states that in case no one is
nominated as Chairman of the Committee
of Management of the institution from
amongst the persons of the panel suggested
by the Committee of Management, the
Committee of Management shall submit a
second panel containing three names.

19. The question, thus, is as to when
does the Committee of Management
assumes
the
jurisdiction
to
recommend/propose/send the second panel.
A plain reading of Clause 7(2)(c) of the
Scheme of Administration reveals that
second
panel
can
be
recommended/sent/proposed
by
the
Committee of Management only if the the
State Government does not nominate any
person from the first panel. It would simply
mean that the Committee of Management
will assume jurisdiction to recommend the
second panel if the State Government
rejects all the names in the first panel and
refuses to nominate anyone of them.

20. In the instant case, the process of
nomination of Chairman in case of any
vacancy in the office of Chairman will start
from the resolution of the Committee of
Management proposing a panel of three
820 INDIAN LAW REPORTS ALLAHABAD SERIES
persons, as per Clause 7(2)(v) of the
approved Scheme of Administration. The
process
further
proceeds
with
the
recommendation to be made by the
Director, Technical Education, U.P. on the
panel
suggested/sent/proposed
by
the
Committee
of
Management
and
this
process comes to an end only once the
decision
on
the
panel
proposed/sent/suggested by the Committee
of
Management
and
on
the
recommendation made by the Director,
Technical Education, is taken by the State
Government. The process thus terminates
only once the decision is taken by the State
Government. In our considered opinion, the
Committee of Management will assume
jurisdiction to propose/send/suggest the
second
panel
only
on
completion/termination
of
the
process
which commences proposal/submission of
first
panel
by
the
Committee
of
Management.

21. If we analyze the facts of this
case, what we find is that before the
process which commenced on resolution of
the Committee of Management proposing
three names in the first panel could
logically culminate in the decision by the
State Government, the Committee of
Management cancelled the earlier panel
and proposed a new panel. Such a course,
in our considered opinion, is not envisaged,
neither is it provided for in the Clauses
7(2)(v) and 7(2)(c) of the approved Scheme
of Administration.

22. Admittedly, before final decision on
the first panel as proposed by the Committee
of Management could be taken by the State
Government, one person on the said panel
died, however, the fact remains that no final
decision on the first panel was taken by the
State Government and accordingly, in our
considered opinion, the Committee of
Management did not have any jurisdiction to
suggest/send/propose the second panel.

23. In the aforesaid back-ground, when
we look at the judgment rendered by the
learned Single Judge, the same appears to be
based on erroneous interpretation of Clause
7(2)(c)
of
the
approved
Scheme
of
Administration. Learned Single Judge has
opined that the intent and purpose of the said
provision is that the State Government should
get an opportunity to nominate the person as
a Chairman out of three persons at the first
instance and if the State Government does not
take a decision the name of three different
persons is to be forwarded.

24. We are unable to agree with the
aforesaid finding recorded by learned Single
Judge regarding interpretation of Clause
7(2)(c)
of
the
approved
Scheme
of
Administration. Forwarding the name of
three different persons as second and
subsequent panel is not envisaged in a
situation where the State Government does
not take decision. It is rather permissible only
if the State Government takes a decision and
does not nominate any of the person from the
panel. "Not taking decision" and "not
nominating" are two different acts. Clause
7(2)(c) states that the Committee of
Management shall recommend second panel
in case the State Government does not
nominate a person to be Chairman. Thus,
pending decision by the State Government
Committee of Management will not get
authority to recommend the second panel. It
thus follows that the basic premise on which
the learned Single Judge has interpreted the
Clause 7(2)(c) of the approved Scheme of
Administration, in our opinion, is erroneous.

25. Any panel prepared by the
Committee of Management and forwarded
10 All. Rajeev Kumar Vs. Kamlesh Kumar Singh & Ors.
821
after recommendation by the Director,
Technical Education will exhaust only on
decision on the said panel is taken by the
State Government. Insistence of the learned
counsel representing the respondent No.1petitioner that it will be incumbent upon the
State Government to take decision to
nominate the Chairman only if the panel
consists
of
three
persons
in
all
circumstances and situations, is thus, in our
opinion, not correct. The question or point
for preparation of second panel in terms of
the provision contained in Clause 7(2)(c) of
the approved Scheme of Administration
will arrive only if the process gets
completed and the process initiated on the
resolution
of
the
Committee
of
Management nominating a panel of three
persons will get concluded only once the
decision by the State Government is taken.

26. We may also consider as to what
is the impact of consideration by the State
Government for nomination of Chairman of
the Committee of Management from the
panel of two persons only which situation
in this case had arisen on account of death
of third person of the panel. It is to be seen
that all the three persons in the panel form
collective choice of the Committee of
Management. Even if, on account of such
exigency as death the panel shrinks to two
persons,
before
final
decision
for
nomination
is
taken
by
the
State
Government, the person who may be
nominated as Chairman will still be the
choice of Committee of Management.

27. To be included in the panel for
nomination as Chairman by the Committee
of Management cannot be said to be right
of any individual. It is the right of the
Committee of Management conferred on it
by the Clause 7(2)(v) of the approved
Scheme of Administration to prepare a
panel of three persons of its choice. Since
the remaining two persons on the first panel
were also the persons of choice of the
Committee of Management, as such by
shrinkage of panel of three persons to two,
no individual right gets infringed and
accordingly, in our opinion, for this reason
as well the conclusion arrived at by the
learned
Single
Judge
regarding
interpretation of Clause 7(2)(c) of the
approved
Scheme
of
Administration
appears to be erroneous.

28. Thus, submission made by Sri
Amrendra Nath Tripathi, learned counsel
representing the respondent No.1-petitioner
that on cancellation of earlier panel and
preparation of fresh panel, the earlier panel
was non-existent, in our opinion, is not
acceptable for the reason that the occasion
for the Committee of Management to
prepare new panel did not arise in this case
as the State Government had not taken any
decision on the first panel before the
second
panel was
proposed
by
the
Committee of Management.

29. As far as the submission made by
Sri Tripathi that the decision of the State
Government cannot be said to be the decision
emanating from independent application of
mind by the authority who took decision is
concerned, we may only observe that
different
departments
of
the
State
Government
have
been
created
for
convenience. Any decision of the State
Government in a particular department, even
if it is based on opinion of Law Department
or any other department, cannot be said to be
vitiated merely because opinion of some
other department was taken before arriving at
the decision in question.

30. Sri Tripathi has also argued that in
absence of challenge to the order dated
822 INDIAN LAW REPORTS ALLAHABAD SERIES
13.01.2021,
passed
by
the
Director,
Technical Education whereby a fresh panel
was invited, the procedure which followed
thereafter cannot be faulted with.

31. If we consider the aforesaid
argument of Sri Tripathi, we do not find
ourselves in agreement with him for the
reason that the letter of the Director,
Technical Education, dated 13.01.2021 was
only an intermediate step in the process
which culminated in the decision of the
State
Government
finally
taken
on
12.05.2022 whereby the appellant was
nominated as a Chairman of the Committee
of Management.

32. In view of the discussion made
and reasons given above, we are unable to
find ourselves in agreement with the
judgment and order passed by learned
Single Judge, which is under appeal herein.

33. Resultantly, the Special Appeal is
allowed and the judgment and order dated
07.09.2022, passed by learned Single Judge
in Writ-C No. 2957 of 2022 is hereby set
aside.

34. Consequences to follow.

35. There will be no order as to costs.
----------
(2022) 10 ILRA 822
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Criminal Appeal No. 2216 of 2014

Saroj Kumar Tiwari ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Sudhir Kumar Srivastava, Sri Sanjeev
Srivastava, Sri Sushil Kumar Dwivedi

Counsel for the Respondents:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 3- Circumstantial Evidence-The
most fundamental principle of criminal
jurisprudence is that the accused must be
and not merely may be guilty before a
court can convict and the mental distance
between 'may be' and 'must be' is long
and divides vague conjectures from sure
conclusions.

In a case based upon circumstantial evidence it
is incumbent upon the prosecution to connect
the links of the circumstances in a single chain
which must establish the culpability of the
accused.

Indian Evidence Act, 1872- Section 8-
Motive- Whatever motive is shown is in
the
confessional
statement
of
the
appellant before the police which is,
firstly, not admissible in evidence and,
secondly, no such disclosure statement
has been exhibited.

Settled law that confession of accused is
inadmissible in evidence and further in absence
of any disclosure statement being exhibited by
the prosecution, no reliance can be placed on
any such confession for proving the motive
behind the commission of the offence.

Indian Evidence Act, 1872- Section 27-
From the two site plans and the recovery
memos two separate places from where
recoveries
were
shown-
from
the
statement of PW-7 (I.O.) both recoveries
were effected from the house of Sapan
Kumar- The witnesses of the recoveries
have
not
been
produced
by
the
prosecution. Rather, they have appeared
as defence witnesses (DW-2 and DW-3)
and have challenged the recovery by