- (1.) HEARD Shri Ashok Khare, Senior Advocate assisted by Shri Manoj Kumarsingh, learned Counsel for the petitioner. Shri R. B. Pradhan, learned Standing Counsel appears for the respondents.
(2.) THE petitioner applied for selections in response to the advertisement issued by U. P. Higher Education Service Commission for the post of Principals of Post Graduate Colleges in the State. THE advertisement Nos. 34, 35 and 36 were superseded by Advertisement No. 39 inviting applications for appointmentof Principals as single post in each college, to be filled up by directrecruit of 69 (male) and 18 (women) for equal number of colleges. THE advertisement was clarified and amended by another advertisement dated February 23rd, 2006 increasing the number of posts of Principals and colleges to 81 (male) and 17 (women ). THE advertisement dated February 23rd, 2006 was published on February 26th, 2006. The selections were delayed. The select list was declared on July 2nd, 2008. The petitioner is placed at No. 6 in the list. He nas prayed for directions : "issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 that while making the placement of Principals Post-Graduate Colleges in pursuance of the select list dated 2. 7. 2008 issued by the U. P. Higher Education Service Commission, Allahabad, the options given by the petitioner in representation dated 14. 7. 2008 may kindly be considered and placement be given to the petitioner accordingly. " It is contended by Shri Ashok Khare that three out of five choices of the petitioner asked for at the time of interview, order of preference, are exhausted and that since no one has vested right nor any right has been created in favour of any candidate Iower in merit than the petitioner in respect of colleges, which are still open, the petitioner has a right to give a fresh option. 5: Learned Standing Counsel sought instructions from the Director of Higher Education and submitted that the Director of Higher Education has discretion in the matter of placement under the U. P. Higher Education Service Commission Act, 1980 and the U. P. Higher Education Service Commission (Procedure for Selection of Teachers) Regulations, 1983. On 24. 7. 2008 we passed the order as follows: "learned Standing Counsel was required to seek instructions in the matter. Shri R. B. Pradhan, learned Standing Counsel has produced a letter dated July 23, 2008 written to him by Dr. Miyan John, Director of Education (Higher Education) U. P. Allahabad, giving out the policy of the department, in allowing selected candidates for the post of principals of post graduate colleges for making their choices for placement. It is stated in the letter that the advertised posts, according to the advertisement, can increase or decrease. The candidates are as such required to give their choices of colleges for placement at the time of interview. The change of choice at any later stage will obstruct the process of placement, and will make the opportunity of giving the choices at the time of interview redundanl He has referred to second proviso to sub-section (4) of Section 12 and Section 13 (4) of the U. P. Higher Education Service Commission Act, 1980 and para-5 of the U. P. Higher Education Service Commission Rules, 1983. The rule provides that the candidates shall be reguired to apply in prescribed form, or to give, if he so desires, the choice pf not more than five colleges in order of preference. Where a candidate wishes to be considered for a particu-lar college or colleges only and for no other he shall mention the fact in nis application. Shri Ashok Khare, learned Counsel for the petitioner has relied upon a judgment of full Court of this Court in Dr. Vinay Kumar v. Director of Educa tion (Higher), 2006 (1)ALJ 847 inwhich the Court clarified the differencesof opinion in the judgments in Alka Rani's case and Dr. Prakash Chandra Srivastava's case. Learned Standing Counsel has not obtained any instructions with regard to the fact whether all the five choices given by the petitioner placed at serial No. 6 in the select list, have been exhausted. We also find that there may be variety of situations namely, when all the choices given by the selected candidates are exhausted and where the can didates, at the tai? of the select list after their choice are exhausted or not ready to accept the placement in the left over colleges, may be requirea to be considered by the respondents. In order to clear the doubts and to maintain transparency in the process of placement, and also to avoid future litigation, the respondents must provide clear poiicy or guidelines. The State respondents should clarify and spell out the clear poiicy in this regard after considering the provisions of the Act and the full Bench judgment in Dr. Vinay Kumar's case. The matter is, as such, adjourned for a week to be listed on 5th August, 2008 for providing instructions with regard to the choices given by the petitioner and to place a clear poiicy with regard to placement before the Court. List on August 5th, 2008. " 6. On August 5th, 2008 we obseryed : "on 24. 7. 2008, we made an order, the operative portion of which reads as follows: "in order to clear the doubts and to maintain transparency in the process of placement, and also to avoid future litigation, the respondents must provide clear poiicy or guidelines. The State respondents should clarify and spell out the clear policy in this regard after considering the provisions of the Act and the full Bench judgment in Dr. Vinay Kumar's case. The matter is, as such, adjourned for a week to be listed on 5th August, 2008 for providing instructions with regard to the choices given by the petitioner and to place a clear poiicy with regard to placement before the Court. " In pursuancetoourdirections, Shri R. B. Pradhan, learned Standing Coun sel has produced a letter No. 726/2008-2009 dated 4. 8. 2008 written by the Directorof Education (Higher Education), Degree Vidhi Anubhag, Uttar Pradesh, Allahabad, by which he has stated that the second proviso to Section 12 (4) and Section 13 (3) of the U. P. Higher Education Service Commission Act, 1980, provide for the placement in accordance with the preferences given by the candidates selected by the Commission. It is stated by him that after the selections, the Commission prepares a merit list and forwards it to the Director of Higher Education and that the Director, treating the merit to be the criteria, makes the placement of the selected candidates in yarious advertised colleges. The second proviso to Regulation 5 of the U. P Higher Education Service Comrnission Regulations, 1981, does not make the preferences given by the candidates binding upon the Director of Higher Education. Upto the year 1991, the Comrnission was given the responsibilities of placement along with the selections, butafter 1991, Sections 12 and 13 of the Act were amended and the responsibilities of making placement were given to the Director of Higher Education. Si?ce no amendment was made in the regulations, the entire powers with regard to placement are provided on the Director of Higher Education. The letter of the Director of Higher Educa tion further makes it clear that according to the second proviso of Regulation 5, the Director of Higher Education is not bound to give the place ment according to the preferences indicated by the selected candidates and that the Director is authorised to give placement in accordance with the Act and Regulations. We are pained to observe that the Director of Higher Education nas completely failed to appreciate the order passed by this Court. There is no doubt that the Director has the powers and the discretion for placements. His dis-cretion, however, has to be guided by the principles of fairness, reasonable-ness and non-arbitrariness. The statutory authority does not have a right to say that his discretion is absolute. Every statutory authority is guided by the Constitutionalgoalsand principles of equality enshrined in Articles 14 and 16 of the Constitution of India. We are conscious of the fact that a full Bench of the Court held that this Court can neither amend nor interpret the provisions of law, in a manner that would amend the legislation. We do not propose to tread in the field of legislating laws. We are, however, sure that we have the powers given to us by Article 226 of the Constitution of India to issue a writ of mandamus to any authority within the State and within our jurisdiction to ask him to perform his duties in accordance with law, and to adopt a fair and reasonable guidelines, which he proposes to follow in exercise of his discretion. In Wefosters' Third New International Dictionary 'discretion' means "power of free decision or choice within certain lega? bounds : ability to make decisions which represent a resporisible choice and for which an understanding of what is lawful, right, or wise may be presupposed. " In Black's Law Dictionary, Sixth Edition, 'discretion'means: "as applied to public officers connotes action taken in light of reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law. " In this connection reference may also be made to the decision of the Supreme Court in Bangalore Medical Trust v. B. S. Muddappa and others, (1991) 4 SCC 54 wherein the scope of discretionary power has been dealt with : ". . . . . . . . . Discretion is an effective tool in administration. Butwrong notions about it results in ill-conceived consequences. In law it provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and lega? exerdse of discretion is one where the authority examines the fact, is aware of law and then decides objeciively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature neverintends its authorities to abuse the law or use it unfairly . . . . . . . . . . . . . . . " (emphasis supplied) In Union of India v. Kuldeep Singh, (2004) 2 SCC 590 the Supreme Court observed : "when anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound dis cretion, and according to law. (See Tomlin's Law Dictionary.) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public function aries, itmeans a power or right conferred upon them by law, of acting officially in certain circumstances ac cording to the dictates oftheir own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary.) Discretion, in genera?, is the discernment of what is right and proper. It denotes knowledge andprudence, the discernment which enables a person to judge critically of what is correct and proper united with caution; nice soundness of judgment; a science or under standing to discern between falsityand truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will andprivate affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful. but lega? and regular. And it must be exercised within the limit to which an honest ma?, competent to the discharge of his office ought to confine himself. (per Lord Halsbury, L. C. , in Sharp v. Wake field ). (Also see S. G Jaisinghani v. Union of India) The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. " (emphasis supplied ). After the selections of Principals of 81 Colleges, the preferences of only first five in the category of merit have been adjusted. The petitioner is sixth in order of merit. He has been denied his request to change the preference. We find that if the Directorof Higher Education is allowed an absolute discretion in placements, there is every likelihood that in this State, endemic with caste and religious preferences and political interference in almost oilfields of governance, there will be interference by the Committee of Managements of the educational institutions and politicians in the matter of placement. A number of writ petitions with regard to the disputes regarding placement are pending in this Court. We want to avoid both the interferences of the strangers in the process and to rule out arbitrariness in the placement A writ of mandamus is, as such, issued to the Director of Higher Educa tion, U. P. at Allahabad to file a counter affidavit, giving a clearly statable and fair policy and guidelines on which he will make placement of the Colleges to the selected candidates. He must disclose the Court as to how he is going to exercise the discretion and that question certainly arises in this case. Let the Director of Higher Education comply with the order within a week. He will file an affidavit in this regard on 12. 8. 2008. A copy of this order be given to Chief Standing Counsel by tomorrow. Until then, the Director of Higher Education shall not make any placement in pursuance of the selections. " 7. Dr Mian Jan, Director of Higher Education, U. P. Allahabad nas filed a ounter affidavit on 12. 8. 2008 of which paragraphs 4 to 9 reads as follows: "4. That in the instant writ petition after hearing on the matter on 21. 7. 2008, the Hon'ble Court directed the Standing Counsel to seek the instruction from Director, Higher Education regarding the policy being adopted by the Direc tor, Higher Education in making placement of the petitioner. In compliance there of, an instruction was provided to the Standing Counsel Mr. R. B. Pradhan, who submitted the same before the Hon'ble Court. However, the Hon'ble Court vice its order dated 24. 7. 2008 observed thatthe said instruction is silentwith regard to the fact whether all the 5 choices given by the petitioner placed at serial No. 6 in the select list have been exhausted. The Hon'ble Court further observed that: "in order to clear the doubts and to maintain transparency in the process of placement, and also to avoid future litigation, the respondents must pro-vide clear policy or guidelines. The State respondents should clarify and spell out the clear policy in this regard after considering the provisions of the Act and the full Bench judgment in Dr. Vinay Kumar's case. The matter is, as such, adjourned for a week to be listed on 5th August, 2008 for providing instructions with regard to the choices given by the petitioner and to place a clear policy with regard to placement before the Court. " That in compliance of the Hon'ble Court's order dated 24. 7. 2008, the Director, Higher Education sought the guidelines in this regard from the State Government. State Government clearly instructed that placement of the selected candidates shall be made strictly on the basis of procedure prescribed in the 2nd proviso of the Section 12 (4) and Section 13 (3) of U. P. Higher Education Service Commission Act, 1980. Accflrdingly, an instruction was made available to the Standing Counsel for its submission before the Hon'ble Court. In the said instruction it was also mentioned that Director, Higher Education has no competence to make policy or rules on his own regarding placement and he is bound to followthe procedure laid down in U. P. Higher Education Service Commission Act, 1980 and U. P. Higher Education Service Commission (Procedure for Selection of Teachers) Regulation, 1983. However, not satisfied with the instruction given by the Director, Higher Education the Hon'ble Court was pleased to pass an order dated 5. 8. 2008 in the writ petition, the relevant portion of the order is being reproduced herein below: "after the selection of Principals of 81 Colleges, the preferences of only first five in the category of merit have been adjusted. The petitioner is sixth in order of merit. He has been denied his request to change the preference. We find that if the Director of Higher Education is allowed an absolute discretion in placements, there is every likelihood that in this State, endemic with caste and religious preferences and political interference in almost all fields of governance, there will be interference by the Committee of Managements of the educational institutions and politicians in the matter of placement. A number of writ petitions with regard to the disputes regarding placement are pending in this Court. We want to avoid both the interferences of the strangers in the process and to rule out arbitrariness in the placement. A writ of mandamus is, as such, issued to the Director of Higher Education, U. P. at Allahabad to file a counter affidavit, giving a clearly statable and fair policy and guidelines on which he will make placement of the Colleges to the selected candidates. He must disclose the Court as to how he is going to exercise the discretion and that question certainly arises in this case. " 6. That in compliance of Hon'ble Courts aforesaid order dated 5. 8. 2008, the "policy" and detailed reply to the writ petition are being given below in following paragraphs. 7. That the placement of the selected candidates shall be made strictly in accordance with the principle laid down in Section 13 (3) of U. P. Higher Education Service Commission Act, 1980 read with 2nd provision of Section 12 (4) of the same Act and 5lh Regulation of U. P. Higher Education Service Commission (Procedure for Selection of Teachers) Regulation, 1983, which provides in express terms the policy of merit cum option (as submitted by the candidates ). The photocopy of Section 12 (4), Section 13 (3) of the U. P. Higher Education Service Commission Act, 1980 and Regulation 5 are being annexed as Annexures 1 and 2. Accordingly, in normal condition the procedure for placement will be: (a) The process of placement shall start from the candidates at top of the merit in select list and will go down one by one up to candidate at last place in merit. The candidates shall be given placement strictly in accordance with their merit and option. If 1stoption of any candidates is available, he will be given college of his 1st option. If 1st option is already exhausted by the candidate of higher merit he will be given college of his 2nd option. Similarly if 1st, 2"d, 3rd and 4th options are already exhausted, he will be given the college of his 5th option. (c) If any option i. e. 2nd, 3rd, 4th or5th is still available for placement, the Director, Higher Education will make placement strictly in accordance with merit for such existing options only. (d) However, in case all the 5 options, given by any candidate are exhausted by the candidates of higher merit, the following procedure is being proposed for the placement of such candidate: (i) Ifall the 5 options given by any candidate are exhausted by the candi date of higher merit, he will be given an opportunity to submit the name of one additional college from the remaining colleges. The Director, Higher Edu cation shall make placement of such candidate in that college of his choice. Only after completing this exercise, the placement in favour of rest of the candidates will be made. (ii) Next candidates in the select list will again be given college as per his option as procedure laid down in para b and c of this affidavit. In case again similar situation of exhaustion of all the option, arises for any candidate the procedure given in para (i) of this affidavit shall be applied. (e) That in case no advertised vacancy is available for the last one or some candidates, the Director, Higher Education is not bound to give place ment unless under Section 13 (4) the vacancy becomes available again. Placement under Section 13 (4) shall be made strictly in accordance with the merit amongst the leftover candidates of the select list. (f) That in order to make placement procedure more transparent, the entire placement, as far as possible, shall be made by the Director, Higher Education within a day. Forthispurpose the Director, Higher Education shall fix a date and cali all the selected candidates to be present on that day before the Director, Higher Education. It is made clear that placements shall be made in accordance with the aforesaid procedure in presence of selected candidates just to make the procedure transparent as well as to provide opportunity to such candidates whose all the options are exhausted. In case such candidates whose options are exhausted by the candidates of higher merits, remain absent on the date fixed by the Director, Higher Education, they will be entitled to give placements by Director, Higher Education only in left over colleges through the same process on the next date fixed by the Director, Higher Education. 8. That it is submitted that the aforesaid policy is fully in accordance with the provisions of the U. P. Higher Education Service Commission Act, 1980 and principle of meritcumoption"enshrined in itbutafeo in accordance with the decision of full Bench of this Hon'ble Courtpassed in Dr. Vinay Kumar's case. " 8. Shri Ashok Khare, learned Counsel for the petitioner submits that he has right to change the option as the Director of Higher Education has changed the statutory schemes. He submits that the petitioner initially gave his options in the application form. He was permitted to change the options to be exercised again at the time of interview, and nw being higher in merit, he has right to change his option, until any placement is made in respect of remaining colleges. He submits that no prejudice will be caused to any one, and that the petitioner higher in merit, has right to change his option. 0 9. Shri Umesh Narain Sharma appearing for Dr. Smt. Meeta Jamal, and Shri RS. Baghel, learned Counsel have supported the scheme submitted by the Di rector of Education. 10. We do not find that the petitioner has any vested right to be appointed as Principal of any particular college. The scheme provides for giving options. The petitioner had exercised his option at the time of filling up the form. He was allowed to change the option as the number of colleges could have increased or decreased. The number of colleges actually increased from 69 to 81 at the time of interviews. With 12 more colleges included in the selections, it was appropriate to allow the candidates to make fresh preferences at the time of interviews. 11. We do not find substance in the contention of Shri Ashok Khare, Senior Advocate that si?ce no placement has been made in the remaining colleges, the petitioner on the basis of merit has right to change his option. 12. Ordinarily the scheme of the Act and the Regulations give discretion in placement to the Director of Higher Education. The change of option at every stage, however, causes uncertainty in the placements. For the reasons, which we had disclosed in our orders and by which we called for clear and transparent policy from the Director of Education, we are not inclined to accept that choices may be allowed to be kept open, in order of merit at every step in the process of placement. 13. In order to make the procedure of placement fair and transparent, we find that scheme proposed by the Director of Higher Education is fair and reasonable. The selected candidates have been given fair chance for placements without affecting the options of other candidates. It is only if all their preferences are exhausted, that candidate will be allowed to make choice of a college. The petitioner has already exercised his choice at two stages. His last choice was exercised very recently at the time of interviews in the month of June, 2008. His two choices namely for Lajpat Rai Post Graduate College, Sahibabad, Ghaziabad and Shri Varshney College, Aligarh are still alive He has not pleaded that he did not have Information about the number of colleges or that his circumstances have, changed for him in any rnanner in last one rnonth. 14. The writ petition is accordmgly disposed of with directions that the Director of Education will complete the process of placement very expeditiously, strictly in accordance with the scheme proposed by him in his counter affidavit dated August 11th, 2008 filed on August 12. 1. 2008. The interim order is discharged. .;