- 1 - Neutral Citation No. - 2025:AHC-LKO:2893-DB RESERVED Chief Justice's Court Case :- SPECIAL APPEAL No. - 517 of 2023 Appellant :- Town Polytechnic, Ballia thru. Chairman and others Respondent :- State of U.P. thru. Secy. Technical Education, Lucknow and 5 others Counsel for Appellant :- Lalta Prasad Misra Counsel for Respondent :- C.S.C., Amrendra Nath Tripathi, Annapurna Agnihotri, Himadri Goswami Hon'ble Arun Bhansali,Chief Justice Hon'ble Jaspreet Singh,J. (Per:- Jaspreet Singh, J.) 1. Heard Ms. Nehha Chadda and Ms. Arti Bali appearing under the authority of Dr. L.P. Misra, learned counsel for the appellants, Shri Anil Kumar Singh Visen, learned standing counsel for the State, Shri Amrendra Nath Tripathi, learned counsel for one set of intervenors and Shri Sandeep Dixit, learned Senior Counsel along with Ms. Annapurna Agnihotri for another set of intervenors. 2. The instant intra-Court appeal assails part of the judgment and order passed by the learned Single Judge, dated 27.10.2023 in WRIT-C No.9339 of 2023, whereby a relief of mandamus which was prayed was refused, while partly allowing the writ petition. 3. Briefly, the facts giving rise to this intra-Court appeal are, that the appellant is an Educational Institution run and managed by a Society, namely, Town Polytechnic Society, Ballia. The Director of Technical Education, the respondent No.5 herein had granted approval to the appellants for making selection of lecturers in the appellant Institution. In furtherance thereof, the appellants initiated the process and also got a publication made in three newspapers inviting applications for filling up the vacancies for the post of lecturers in various Technical Departments of - 2 - the Institution. However, since a Selection Committee was not nominated by the respondents, accordingly, the appellants had filed WRIT-A No.11840 of 2019 and WRIT-A No.4667 of 2019 before the Court. The High Court vide its order dated 26.08.2019 and 29.03.2019 passed in the aforesid two writ petition disposed of the said writ petitions with a direction to the Director of the U.P. Technical Education to consider the claim of the appellants herein and pass appropriate orders within a period of two months, and vide order dated 29.03.2019, liberty was granted to the appellants to approach the authority concerned for ventilating their grievances. 4. Armed with the said orders, the appellants once again approached the authority and then permission was granted by the Director of Technical Education and fresh notices were published incorporating certain corrections with which the appellants were to complete the selection. While the selection process was in progress at one point of time, the Director, Technical Education stayed the process vide its order dated 22.05.2023 which was later recalled and the selection process resumed. Screening of the candidates was done and thereafter written test was conducted which was followed by interviews and after completing the entire process, a list of selected candidates was sent for approval to the Director, Technical Education along with a letter dated 21.08.2023. 5. Despite the select list sent along with necessary records, yet the approval was not granted by the Director, Technical Education. In the meantime, the Assistant Secretary, State of U.P., Department of Technical Education vide its letter dated 04.09.2023 sought clarification from the - 3 - Director of Technical Education in respect of the said selection process. Though, the same were duly answered, however, once again the Special Secretary, Technical Education vide letter dated 22.09.2023 raised certain queries from the Director of Technical Education. This was also duly answered by the Director of Technical Education. While this correspondence was being done by the Director of Technical Education with the State Authorities, Joint Director, Technical Education vide his letter dated 03.10.2023 made further queries from the Principal of Town Polytechnic regarding the appointment of the newly selected lecturers. The Deputy Director, Technical Education also vide his letter dated 04.10.2023 sought a report from the Joint Director, Technical Education regarding certain alleged irregularities in the selection process. 6. In the aforesaid backdrop, ultimately, an order dated 13.10.2023 was passed by the Joint Secretary, Technical Education addressed to the Director, Technical Education indicating that the selections made by the appellants Institution was mired with irregularities, hence, the same be treated as void and FIR may also be lodged against erring persons. 7. This order dated 13.10.2023 came to be challenged by the appellants by filing WRIT-C No.9339 of 2023 [Town Polytechnic, Ballia & Others v. State of U.P. & Ors.], wherein the following reliefs were sought:- "WHEREFORE, it is most respectfully prayed that Hon'ble Court may kindly be pleased:- (a) To issue writ, order or direction in the nature of certiorari quashing the impugned order dated 13.10.2023, which is annexed as Annexure no.1, to the writ petition and be also pleased to quash any other step, if any, taken in furtherance of the said impugned order, after summoning the original of the same from opposite parties 1 to 5. (b) To issue writ, order or direction in the nature of mandamus - 4 - commanding opposite parties not to undertake any further steps in furtherance of the impugned order dated 13.10.2023. (c) To issue writ, order, direction in the nature of mandamus, commanding the opposite party no. 5, the Director of Technical Education, Kanpur, to accord approval to the selected candidates, as sought through the letter dated 03.10.2023 independently without any interference on the part of opposite party 1 to 4 or any other officer, employee, or subordinate of such opposite parties in accordance with the statutory prescriptions." 8. Before the learned Single Judge, it was contended that under the Uttar Pradesh Pravidhik Shiksha Adhiniyam, 1962 (hereinafter referred to as the 'Act of 1962'), the word ' Board' has been defined under Section 2(b) whereas the word 'Director' has been defined in Section 2(gg). It was further contended that the powers of the Board have been indicated in Section 13, whereas the powers of the State Government has been delineated in Section 14. It was further urged that the order which was impugned before the writ Court clearly indicated that the State had exceeded its jurisdiction in usurping the powers which were otherwise conferred on the Director and in this view of the matter, the impugned order dated 13.10.2023 was bad. 9. The learned Single Judge noticing the aforesaid contentions, agreed with the same and by means of the judgment and order dated 27.10.2023 it set aside the order dated 13.10.202. However, insofar as the claim of the appellants for a writ in the nature of mandamus was concerned, it was turned down. 10. Being aggrieved by the refusal for granting the mandamus, the appellants have filed the instant intra-Court appeal. 11. Ms. Chadda has submitted that once the learned Single Judge noticed the separation of the powers as envisaged in the Act of 1962 and further it - 5 - was found by the learned Single Judge that the order passed by the State Government giving certain directions to the Director were per se not in consonance with the provisions of the Act of 1962 and had set aside the order then as a natural consequence, the relief of mandamus ought to have been granted. 12. It is further urged that from a perusal of the Paragraph-22 of the judgment passed by the learned Single Judge dated 27.10.2023 it would indicate that the reasons for refusing to grant the mandamus was that as the matter was seized with the State Government regarding the irregularities in the selection, the Court refused to issue any directions. 13. It is urged that the very fact that the State Government had exceeded the jurisdiction which was accepted by the learned Single Judge, hence, to observe that the mandamus could not be granted as the matter was seized with the State Government itself is a contradictory finding and it is in the aforesaid light that the appellants have been compelled to file the instant intra-Court appeal. 14. It is urged that the refusal of mandamus by the learned Single Judge indirectly gives premium to the State Government for its action which has been held to be in excess of jurisdiction conferred. Thus, the appeal be allowed and an appropriate direction be issued to the Director, Technical Education to grant approval to the list of selected candidates as sought through letter dated 03.10.2023 within the time to be framed by this Court. 15. Shri Visen, learned standing counsel has primarily urged that the State had received certain complaints regarding non adherence of ethical - 6 - practice while making the selection inasmuch as the son of the Director, Technical Education was also one of the selected candidate and the Director was proceeding ahead to grant approval to such candidates which included his son. 16. It is further urged that under such circumstances, the State had to intervene and even though the order dated 13.10.2023 passed by the State had been set aside by the learned Single Judge, yet it may not be construed as approval of the selection, which otherwise was tainted and in this view, the Director, Technical Education cannot be permitted to approve such selection. 17. It is further urged that subsequent to the order passed by the learned Single Judge, certain orders have been passed by the Director, Technical Education himself dated 24.11.2023 which has not been assailed by the appellants and till such order passed by the Director subsists, the relief claimed by the appellants cannot be granted, hence, the appeal deserves to be dismissed. 18. Learned counsel appearing for the intervenors have supported the submissions of the learned counsel for the appellants. 19. The Court has heard learned counsel for the parties and also perused the material on record. 20. From the perusal of the reliefs as originally sought in the writ petition, which has been noticed in the earlier part of this judgment, indicates that the appellants were primarily aggrieved by the order dated 13.10.2023 passed by the State which has been set aside by the learned - 7 - Single Judge. The reasons recorded by the learned Single Judge while setting aside the order dated 13.10.2023 has been recorded in Paragraph-15 to 18 of the judgment, dated 27.10.2023, which is being reproduced hereinafter for ready reference:- "15. It is admitted by the learned Addl. Chief Standing Counsel that the order has been issued under the provisions of sub-Section (3) of Section 14 of the Act, 1962 and the order has been passed by the State Government by invoking its emergency powers. For the sake of convenience, Section 14 of the Act, 1962 is reproduced below: "14. (1) The State Government may communicate to the Board its views on any work done or conducted by the Board or in respect of any matter with which the Board is concerned and the Board shall thereupon report to the State Government the action taken or proposed to be taken by it in regard thereto. (2) If the Board fails to take action within a reasonable time to the satisfaction of the State Government or fails to communicate the action taken or proposed to be taken, the State Government may, after considering any explanation furnished or representation made by the Board, issue such directions consistent with the provisions of this Act and the rules and regulations made thereunder as it may think fit. The Board shall comply with the said directions within the time specified therein and if it fails to do so, the State Government may take all such steps as it may deem necessary to give effect to such directions. (3) Notwithstanding anything in sub-sections (1) and (2), the State Government, in any emergency which in its opinion requires that immediate action should be taken, may without prior reference to the Board, issue such directions or take such other action consistent with the express provisions of this Act as it may think fit." 16. From a perusal of the provisions of Section 14 of the Act, 1962, it is apparent that the emergency powers as vested with the State Government under the provisions of sub-Section (3) of Section 14 of the Act, 1962 can be exercised, notwithstanding anything contained in sub-Section (1) and sub-Section (2) of Section 14 of the Act, 1962, meaning thereby that it is only in case of an emergency and in the opinion of the State Government, in matters which require immediate action, that an order can be passed under the provision of sub-Section (3) of Section 14 of the Act, 1962. 17. 17. Perusal of the order impugned dated 13.10.2023 indicates that it does not reflect anywhere as to what has led the State Government to invoke its extraordinary and emergency powers, as vested in it under the provisions of sub-Section (3) of Section 14 of the Act, 1962. 18. Needless to mention that where the extra ordinary powers are to be exercised, it can only be in case of an emergency and where in the - 8 - opinion of the State Government requires said action to be taken under the provisions of the sub-Section (3) of Section 14 of the Act, 1962, then consequently the said "opinion" of the State Government should be reflected from the order itself, which is lacking in the instant case. It is settled provision of law that reasons are the hallmark of an order. " 21. The impugned judgment passed by the learned Single Judge clearly notices the relief claimed by the appellants, for mandamus and it was turned down for the reasons recorded in Paragraph-22 of the impugned judgment which is being reproduced hereinafter for ready reference:- "22. As regards the prayer made for issue of a mandamus commanding the respondent No., 5, i.e. the Director, Technical Education, Kanpur, to accord approval of the candidates selected vide order dated 3.10.2023, the Court is of the view that once the State Government is already seized with the matter pertaining to certain irregularities having been made in the said selection, this Court is not required to issue any directions with regard thereto and it is always open for the respondents to proceed with the matter in accordance with law." 22. It may be noticed that so far as the impugned order dated 27.10.2023 by which the order passed by the State dated 13.10.2023, was set aside, is concerned, is not assailed either by the appellants or by the State Government. The State has not filed any cross appeal nor a separate appeal has been preferred by the State so the consequence is that the State has acceded to the order which vis-a-vis appellants and the respondents-State has attained finality. 23. The only issue that now remains is whether a writ of mandamus which has been refused by the learned Single Judge can be granted or not. 24. Considering the aforesaid issue, it would reveal from a perusal of the provisions of the Act of 1962, more particularly Section 22-F of the Act of 1962 which relates to the procedure of selection of Principal and Teachers and sub-section (2) of Section 22-F states that the name of the selected candidates shall be forwarded for approval to the Director along with a list of documents showing the names, qualifications and such other particulars - 9 - as may be laid in the Regulations, all the candidates who had applied for selection. Sub-section (3) provides that the Director shall give his decision within two weeks from the receipt of the relevant papers mentioned in Sub- section (1), failing which, the approval shall be deemed to have been accorded. Sub-section (4) provides that where the Director disapproves, for the reasons to be recorded in writing, any name proposed under Sub- section (1), then the Management may within three weeks of the receipt of the disapproval make a representation to the State Government whose decision would be final. 25. Taking note of the aforesaid provisions, it would be clear that once the selection is made, it has to be placed before the Director, Technical Education for approval. The Director, Technical Education has two options either he can approve it or he may disapprove the same. In case, if it has disapproved then the Management has right to escalate the matter before the State Government. Even if there is no disapproval and there is no positive order of approval passed within two weeks, then as per Sub- section (3) of Section 22-F of the Act of 1962, the approval would be deemed to be accorded. 26. In this view of the matter where the Act of 1962 itself envisages a deeming provision and an inbuilt mechanism for approval, then before any prayer for grant of mandamus is allowed then, inter-alia, it has to be seen whether there is any legal demand which has been refused by the authority concerned. 27. Since, the Act of 1962 itself provides for a deemed approval in absence of a positive approval by the Director within two weeks and - 10 - apparently there is no order of disapproval by the Director, Technical Education, hence, it cannot be said that there can be any demand made by the appellants which has been refused by the Director. 28. If the sole grievance of the appellants is considered, it would reveal that once the impugned order dated 13.10.2023 passed by the State Government was set aside and as per the appellants, they had already submitted all the necessary documents for seeking approval of the list of selected candidates, with the Director, Technical Education then as per the Act of 1962 there could either be a specific order of approval of the said list, which is admittedly not there then it automatically follows that at the end of two weeks, there would be deemed approval. Moreover, admittedly there is no specific order of disapproval within two weeks, hence, the appellants/Committee of Management cannot escalate the matter before the State Government. Nevertheless, in either situation, no mandamus could be granted. Merely because the learned Single Judge in Paragraph-22 of the impugned judgment and order has noticed that the matter is before the State Government ipso facto would not alter the effect of the legal provisions and its effect as noticed above. 29. This fact apart, the record indicates that the Director himself vide his letter dated 24.11.2023 addressed to the Committee of Management of the appellants indicated that the earlier selections in question were tainted and fresh selection be made and this order has not been assailed by the appellants and this fact is not in dispute. Thus, in absence of any challenge to the said order, the appellants cannot seek a mandamus nor this Court in exercise of its powers as an appellate Court can grant such a mandamus - 11 - commanding the Director, Technical Education to approve the alleged list of selected candidates where the said Director himself, has already intimated the Committee of Management for undertaking fresh selections. 30. Thus, for all the aforesaid reasons, this Court is of the clear opinion that there is no error in the judgment and order dated 27.10.2023 passed in WRIT-C No.9339 of 2023 by the learned Single Judge. Consequently, the instant intra-Court appeal fails. There shall be no order as to costs. (Jaspreet Singh, J.) (Arun Bhansali, CJ.) Order Date :- 17th January, 2025 Rakesh/- Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench