It would be imperative to mention right at the outset that in a significant pronouncement, the Supreme Court just recently on March 15, 2019 in Sugreev Kumar v. State of Punjab & Ors in Criminal Appeal No. 509 of 2019 (Arising out of SLP (Cri.) No. 9687 of 2018  has unequivocally reiterated that to add a person as additional accused under Section 319 of the Code of Criminal Procedure, stronger evidence is required than mere probability of complicity of that person. This notable and commendable judgment authored by Justice Dinesh Maheshwari for himself and Justice Abhay Manohar Sapre while setting aside an order of the Punjab and Haryana High Court unambiguously observed that while invoking Section 319 CrPC should not proceed as if an infallible case is required to be shown by the prosecution in order to proceed against the proposed accused persons. Very rightly so!

                                         While leave is granted in para 1, we then see that para 2 brings out that, “In this appeal, the complainant-appellant has called in question the judgment and order dated 02.07.2018 in Criminal Revision Application No. 2626 of 2014 whereby, the High Court of Punjab and Haryana at Chandigarh, has upheld the order dated 24.07.2014 as passed by the Additional Sessions Judge, Fazilka in S.C. No. 9 of 14.01.2014 on an application filed under Section 319 of the Code of Criminal Procedure (‘crPC’) seeking summoning of additional accused persons to stand the trial.”

                                    As things stand, para 2.1 then brings out that, “The sessions case aforesaid is pending trial for the offences under Sections 302, 307, 341, 34 of the Indian Penal Code (‘IPC’) and Sections 25, 54 and 59 of the Arms Act. By the said order dated 24.07.2014 on the application under Section 319 CrPC, the Trial Court, while partly granting the prayer of the prosecution to summon one of the accused Sonu son of Jaipal to face the trial, has dismissed the prayer for summoning the other 7 persons namely, Krishan Dev, Vikash son of Krishan Dev, Rajan, Mukesh @ Jungli, Devinder @ Veeru, Surinder Mahal and Prithvi Raj.”

                                      In hindsight, it is then observed in para 3 that, “The background aspects, so far relevant for the present purpose, could be noticed, in brief, as follows:

3.1 The prosecution case is that on 29.08.2013, the appellant accompanied by his father, brother and other associates, proceeded to reclaim possession of their land from the erstwhile tenants in compliance with the directions issued by the Court of Assistant Collector Grade-1, than on reaching the site at about 3:30 p.m., they found that the concerned revenue officers were not present and while they were making their way back to the village in search of the revenue officers, 3-4 cars intercepted them and about 10-12 persons emerged from the said vehicles, some of them being the alleged tenants, who were armed with pistols, rifles, swords, dangs, sotas and 12 bore gun; and that after a heated exchange of words, the appellant, his family members and their associates were attacked by the accused which resulted in the demise of the appellant’s father and brother while the others sustained varying injuries with the appellant receiving three bullet injuries.

3.2 For the incident in question, FIR came to be filed against 11 persons for the offences under Sections 302, 307, 341, 148 and 149 IPC as also Sections 27, 54 and 59 of the Arms Act. However, after investigation, only 3 persons, namely, Vikram Gilla, Gurmit Singh and Sunil Kumar, were charge-sheeted.

3.3 In trial, the appellant was examined by the prosecution as PW-1, who asserted in relation to the incident in question, inter alia, as under:-

       “…… After alighting from the car Vikas raised Alarm that they be taught lesson for taking possession of their land. Then Vikram fired from his rifle on my father which hit him. Then my brother Sandeep alighted from the Jeep and Vikram with his rifle fired two shots at him which hit on the left side of his chest and waist. Krishan again raised Lalkara and instigated Sonu why are you standing and asked him to kill all sons of Hanuman. Then Sonu fired three shots from, his revolver out of which two fires on my chest near the heart and one near the left shoulder. Vikram again fired shot from his gun on my father which hit him on his waist. Then allthe accused started indiscriminating firing with their revolver, 12 bore gun and pistols and the fires hit with the vehicles. Mahi Ram, Budh Ram, my father and Sham Lal our servant. Thereafter we raised Raula of MAR DITTA MAR DITTA. Then accused tried to run away on their vehicles but Innova did not start and they left the Innova then along with 12 bore rifle and ran away from the spot in another vehicles….(sic)”

3.4 In his cross-examination, the appellant deposed that Krishan Dev, Vikas, Sonu, Rajan, Mukesh @ Jungli, Devinder @ Veeru, Surinder Mahal and Pirthi Raj were declared innocent after investigation by the police, but volunteered to state that they were wrongly declared innocent.

3.5 Pending further cross-examination of the appellant, an application under Section 319 CrPC was filed by the prosecution to summon the aforesaid 8 persons to face trial on the basis of the testimony of the appellant (PW-1), wherein, he had asserted that all of them were present at the crime scene; and had assaulted and injured the applicant, his family members and associates on exhortation by Krishan Dev which resulted in the demise of his father and brother. Hence, it was submitted that there was sufficient material on record to summon all the aforesaid persons to face the trial in this case.”

                                       To be sure, it is then pointed out in para 4 that, “In its impugned order dated 24.07.2014, the Trial Court referred to certain inconsistencies in the testimony of the appellant as compared to his statement under Section 161 CrPC and the FIR; and found no case for summoning 7 of the aforesaid persons but considered it just and proper to summon Sonu son of Jaipal, who had allegedly fired three shots from his firearm, which hit the appellant.”

                              As it turned out, it is then disclosed in para 5 that, “Against the order aforesaid, the appellant filed a criminal revision petition, being CRR No. 2626 of 2014, before the High Court of Punjab and Haryana at Chandigarh which was dismissed by the impugned order dated 02.07.2018. It is mentioned in paragraph 4 of the order impugned that the learned counsel for the petitioner had confined the relief only qua the respondent Nos. 2 and 3, Krishan Dev and Vikas son of Krishan Dev. The High Court upheld the order of the Trial Court while observing as under:

           “11. In this case, statements of complainant and witnesses is same, which were recorded by the police during investigation. Learned trial Court has observed in its order that Vikas was attributed lalkara to the effect that complainant party be taught lesson for taking possession of the disputed land while Sugreev (PW) had admitted in his cross-examination that possession of the disputed land had not yet been taken by them. This shows that respondents, Krishna Dev and Vikas were arrayed as accused because of enmity between the parties and the police during investigation had collected the evidence which prove that both these respondents were far away from the place of occurrence.

         12. Hon’ble Apex Court in the case Brijendra Singh (supra) has observed that for summoning the additional accused under Section 319 Cr.P.C. degree of satisfaction is much stricter. Power under Section 319 Cr.P.C. is discretionary and extraordinary power which is to be exercised sparingly and only in those cases where circumstances of the case so warrants and strong and cogent evidence occurs against a person from the evidence led before the Court and not in a casual and cavalier manner. …….”

                                   As anticipated, para 6 then envisages that, “Assailing the order aforesaid, the learned counsel for the appellant has strenuously argued that the High Court as also the Trial Court have failed to consider the fact that respondent No. 2 Krishan Dev and respondent No. 3 Vikas are the main perpetrators of the crime; and had planned everything in advance for executing the crime and to escape from the law. Learned counsel would submit that the exhortation (lalkara) was a previously planned one as the possession of the land was to be handed over to the appellant and his family members; that the Innova car, which is registered in the name of respondent No. 2, was recovered from the scene of the crime; and that the report submitted by the police is based on the statement of witnesses at the instance of the respondents Nos. 2 and 3, where some of them are related to respondent No. 2 and while the others are his acquaintances. Learned counsel would submit that with the evidence available on record, a clear case for proceeding against the aforesaid persons alongwith the charge-sheeted accused is made out. Learned counsel for the appellant has referred to and relied upon the decisions in Hardeep Singh v. State of Punjab : (2014) 3 SCC 92 and Brijendra Singh & Ors. V. State of Rajasthan : (2017) 7 SCC 706.”

                                      On the contrary, it is then brought out in para 7 that, “Per contra, learned counsel for the respondents have duly supported the orders impugned and have submitted that no case for interference is made out as the Court under Section 319 of CrPC are to be exercised sparingly and, in this case, the Trial Court and the High Court, after having thoroughly examined the record, found no substance in the application so moved. More specifically, learned counsel for respondent No. 6 has pointed out that before the High Court, the appellant had given up the challenge qua this respondent. Learned counsel would submit that the impugned order has been passed after due consideration of the material on record; that his name was neither reflected in the FIR nor in the statement under Section 161 CrPC; that after police investigation, nothing incriminating was found against him and even the Trial Court has found no cogent evidence against him.”

                                       Furthermore, para 8 then stipulates that, “During the course of submissions, it has been pointed out that since after passing of the orders impugned, further evidence of the prosecution was recorded in the trial and thereafter another application under Section 319 CrPC was moved for summoning of the aforesaid 7 persons but the same was also rejected by the Trial Court on 28.09.2018. It has also been submitted that practically, the entire prosecution evidence in the matter is over.”

                                       To put it succinctly, the Bench then held in para 9 that, “Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the disposal of applications moved in this matter under Section 319 CrPC cannot be approved; and in the given set of facts and circumstances, it appears just and proper that the Trial Court should re-examine the entire matter with reference to the principles applicable to the case, in order to take a decision afresh as to whether the persons above-named or any of them deserve to be tried together with the other accused persons.”

                                 While encapsulating the purpose behind Section 319 of CrPC, the Bench then underscores in para 10 that, “It remains trite that the provisions contained in Section 319 CrPC are to achieve the objective that the real culprit should not get away unpunished. By virtue of these provisions, the Court is empowered to proceed against any person not shown as an accused, if it appears from evidence that such person has committed any offence for which, he could be tried together with the other accused persons. In Hardeep Singh (supra), the Constitution Bench of this Court has explained the purpose behind this provision, inter alia, in the following:

        “12. Section 319 Code of Criminal Procedure springs out of the doctrine judex damnatur cum nocens absolvitur (judge is condemned when guilty is acquitted) and this doctrine must be used as a beacon of light while explaining the ambit and the spirit underlying the enactment of Section 319 Code of Criminal Procedure.

          13. It is the duty of the court to do justice by punishing the real culprit. Where the investigation agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. The question remains under what circumstances and at what stage should the court exercise its power as contemplated in Section 319 CrPC?  

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              19. The court is the sole repository of justice and a duty is cast upon it to uphold the rule of law and, therefore, it will be inappropriate to deny the existence of such powers with the courts in our criminal justice system where it is not uncommon that the real accused, at times, get away by manipulating the investigating and/or the prosecuting agency. The desire to avoid trial is so strong that an accused makes efforts at times to get himself absolved even at the stage of investigation or inquiry even though he may be connected with the commission of the offence.” 

                                     What’s more, it is then significantly laid down in para 11 that, “As regards the degree of satisfaction required for invoking the powers under Section 319 CrPC, the Constitution Bench has laid down the principles as follows:

        “95. At the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. A two-Judge Bench of this Court in Vikas v. State of Rajasthan, held that on the objective satisfaction of the court a person may be “arrested” or “summoned”, as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons.

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         105. Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sesssions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.

         106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction in the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. InSection 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “for which such person could be tried together with the accused.” The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused”.”

                                     Simply put, is then noted in para 12 that, “Thus, the provisions contained in Section 319 CrPC sanction the summoning of any person on the basis of any relevant evidence as available on record. However, it being a discretionary power and an extraordinary one, is to be exercised sparingly and only when cogent evidence is available. The prima facie opinion which is to be formed for exercise of this power requires stronger evidence than mere probability of complicity of a person. The test to be applied is the one which is more than a prima facie case as examined at the time of framing charge but not of satisfaction to the extent that the evidence, if goes uncontroverted, would lead to the conviction of the accused.”

                                        It is a no-brainer that the Bench then held in para 13 that, “While applying the above-mentioned principles to the facts of the present case, we are of the view that the consideration of the application under Section 319 CrPC in the orders impugned had been as if the existence of a case beyond reasonable doubt was being examined against the proposed accused persons. In other words, the Trial Court and the High Court have proceeded as if an infallible case was required to be shown by the prosecution in order to proceed against the proposed accused persons. That had clearly been an erroneous approach towards the prayer for proceeding against a person with reference to the evidence available on record.”

                                      Be it noted, para 14 then states that, “The appellant (PW-1) has made the statement assigning specific roles to the proposed accused persons. At this stage of consideration of the application under Section 319 CrPC, of course, the Trial Court was to look at something more than a prima facie case but could not have gone to the extent of enquiring as to whether the matter would ultimately result in conviction of the proposed accused persons.” Para 15 then further states that, “The other application moved by the prosecution after leading of further evidence in the matter has been rejected by the Trial Court essentially with reference to the impugned orders dated 24.07.2014 and 02.07.2018, which are the subject matter of challenge in this appeal.”

                                     Suffice it to say, para 16 then sums up by saying that, “In the totality of the circumstances of this case, rather than dilating further on the evidence, suffice it would be to observe for the present purpose that the prayer of the prosecution for proceeding against other accused persons, having not been examined in the proper prospective and with due regard to the applicable principles, deserves to be restored for reconsideration of the Trial Court.”

                              Finally and perhaps most importantly, it is then held in the last para 17 that, “Accordingly, this appeal is allowed in part, to the extent and in the manner that the impugned orders are set aside and the applications made by the prosecution under Section 319 CrPC are restored for reconsideration of the Trial Court. In the interest of justice, it is made clear that we have not pronounced on the merits of the case either way and it would be expected of the Trial Court to reconsider the prayer of prosecution for proceeding against the proposed accused persons totally uninfluenced by any observation herein regarding facts of the case but with due regard to the evidence on record and to the law applicable.”

                          All said and done, it is a must read judgment which makes the position on Section 319 CrPC very clear. It specifies clearly and convincingly that a person can be added as an additional accused only when there is strong and cogent evidence and mere probability of complicity of that person is not enough to add him as accused. Thus now there is no unambiguity and no uncertainty left on this as to the test that has to be applied while considering an application to add a person as an additional accused for which the Apex Court Bench comprising of Justice Dinesh Maheshwari and Justice Abhay Manohar Sapre have to be appreciated and applauded for delivering such a landmark and laudable judgment so elegantly!   

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

In a major development, the Punjab and Haryana High  Court in a latest, landmark and laudable judgment titled Dr. Ashok Khemka Versus State of Haryana and others  in CWP-317-2019 (O&M) delivered on March 18, 2019 has very clearly and convincingly not just upheld the integrity  of eminent IAS officer of 1991 batch –  Dr Ashok Khemka known all over India who because of his upright and impeccable credentials has emerged as an eyesore for politicians of all hues but also very rightly expunged Haryana Chief Minister ML Khattar adverse remarks in his Personal Appraisal Report (PAR). Every honest and upright person will be most happy to learn about this! There can be no denying or disputing it!

                                                        Not just stopping here, the two  Judge Bench of Punjab and Haryana High Court comprising of Justice Rajiv Sharma and Justice Kuldip Singh also observed without mincing any words that, “Since number of such officers whose integrity is beyond doubt and who have professional integrity of higher standard is depleting very fast, therefore, they need protection from being damaged by recording adverse remarks against the record.” Absolutely right! This landmark judgment authored by Justice Kuldip Singh for himself and Justice Rajiv Sharma made the above mentioned observation while deciding Dr Khemka’s appeal which he had filed against an order of the Central Administrative Tribunal (CAT) which had rejected “in toto” his application for expunging remarks made by Manohar Lal Khattar as the accepting authority and restoration of a grade of 9.92 as awarded by Cabinet Minister Anil Vij in his PAR for the period from April 8, 2016 to March 31, 2017, when he served as the Principal Secretary to Government of Haryana, Science and Techno logy Department.   

                                There can be no gainsaying the irrefutable fact that Dr Ashok Khemka who is a 1991 batch IAS officer shot into limelight in 2012 for cancelling the mutation of a land deal between Congress President Rahul Gandhi’s brother-in-law Robert Vadra and DLF. In a career spanning 21 years, the 52-year-old Dr Ashok Khemka has been transferred 52 times! Can on earth there be anything more unfortunate than this that an IAS officer whom none other than Punjab and Haryana High Court has hailed as an “honest and upright officer” was subjected to repeated transfers and harassed  and humiliated in a way which under no circumstances can ever be justified by any upright person?

                                  First and foremost, this extremely commendable and noteworthy judgment sets the ball rolling by observing that, “Petitioner-Dr Ashok Khemka, who is an Indian Administrative Services (IAS) Officer and holding the rank of Principal Secretary to Government of Haryana, has invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India for quashing of the impugned order dated 31.12.2018 (Annexure P-1) passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short ‘the Tribunal’). Petitioner has also prayed for expunging the adverse remarks and over all grading given by Accepting Authority under Section V-Acceptance of the PAR for the period from 8.4.2016 to 31.3.2017 (Annexure P-2) while restoring the overall grade of 9.92 as given by the Reviewing Authority.”

                                    To recapitulate, it is then pointed out that, “Brief facts of the case are that applicant-petitioner is 1991 batch Indian Administrative Services Officer (IAS), presently posted as Principal Secretary, Department of Sports, Government of Haryana. Under All India Services (Performance Appraisal Report), Rule 2007 (for short the AIS (PAR) Rules, 2007, the Performance Appraisal Report (for short ‘the PAR’) is written for every member of All India Services for each financial year as per Schedule 2.”

                                  For the sake of brevity, it is enough to mention that in this laudable judgment, we then see that there are general guidelines in the said schedule for filling the PAR for which time frame is given in Schedule 2, Form II, Guideline 9.

                               To be sure, it is then pointed out that, “Applicant-petitioner claims that in his case for the PAR for the period from 8.4.2016 to 31.3.2017, Accepting Authority wrote the remarks on 31.12.2017 and took 184 days in doing the same. Further on the comments of applicant-petitioner under Rule 9(2) of the AIS (PAR) Rules, 2007, no decision has been taken so far. Petitioner has also made a representation dated 1.6.2018 to the Chairperson of Referral Board stating that due to failure of the Accepting Authority to decide the representation within the prescribed time frame, the views of the Reviewing Authority has acquired the finally ipso juris and must be acted upon by expunging the appraisal of the Accepting Authority. However, no response has been received.”

                        As it turned out, this significant judgment then mentions that, “Applicant-petitioner moved the Tribunal by filing the Original Application No. 060/01058/2018, titled as ‘Dr Ashok Khemka vs. State of Haryana and another’ on 4.9.2018 claiming the following relief:-

(i)                         expunge the remarks and the overall grade recorded by the Accepting Authority in “Section V-Acceptance” of the Performance Appraisal Report for the period, 8th April 2016 to 31st March 2017 and restore the overall grade of 9.92 as per appraisal done by the Reviewing Authority;

(ii)                      grant any other relief, which may be deemed to be just and proper; and

(iii)                   allow he present O.A. With costs.”   

                                  

                                         What’s more, it is then pointed out that, “The plea of the applicant-petitioner did not find favour from the Tribunal which vide its order dated 3.12.2018 held that the Accepting Authority recorded the appraisal report on 31.12.2017 well within the time prescribed under relevant Rule 5 (1) of the AIS (PAR) Rules, 2007 and para 9.4 of the General Guidelines. Hence, the application was dismissed.”

                                   To put things in perspective, it is then pointed out in this notable judgment that, “We have heard learned counsel for the parties and have carefully gone through the case file. In this case, it is not disputed that for recording the PAR of the IAS Officer, certain time frame has been given as reproduced above. Before the Tribunal, the applicant-petitioner had claimed that the remarks by the Accepting Authority were time barred and that since his representation under Rule 9(7B) of the AIS (PAR) Rules, 2007 has not been decided, the views of the Reviewing Authority have become final. Undoubtedly, the statutory representation of the petitioner has not been decided by the Accepting Authority within the time frame. Under Rule 5 of the AIS (PAR) Rules, 2007, the Central Government can make such addition in the form or the cut off date as may be considered necessary or desirable. Therefore, the time frame as fixed for recording the PAR could be varied. The Tribunal has relied upon Rule 5(1) of the AIS (PAR) Rules, 2007 and para 9.4(1) of the General guidelines which provide that if the PAR relating to the financial year is not recorded by 31st December of the year in which financial year ended, no remarks shall be recorded thereafter, and the officer may be assessed on the basis of overall record and self-assessment of the year concerned, if he has submitted his self-assessment on time. The time frame is the technical aspect of the matter. However, before this Court, it has been argued that even on merits, the views of Accepting Authority are to be rejected.”  

                                  Needless to say, it is then pointed out that, “We have carefully examined the PAR of the applicant-petitioner. It comes out that the applicant-petitioner at the relevant time was working as Principal Secretary to Government of Haryana, Science and Technology Department.”

                                  It must be clarified here as has been pointed out also in this judgment itself that Reporting Authority is Chief Secretary of Haryana and period worked is from 08/04/16 to 31/3/2017. Reviewing Authority is Science and Technology Minister Haryana and period worked is from 23/07/2016 to 31/3/2017. Anil Vij who is Health Minister is Reviewing Authority. Accepting Authority is Chief Minister of Haryana and period worked is from 08/04/16 to 31/3/2017. The Reporting Authority grades Dr Khemka mostly as 8.1, 8.2, 8.3, 8.4 and overall grades him as 8.22 and 8.27 but Reviewing Authority who is Anil Vij grades him much better and grades him mostly as 9.8, 9.9, 10 and overall grades him as 9.92 and 9.87 which is certainly very good.  

                                   Going forward, it is then pointed out in this historic ruling that, “Regarding integrity of the applicant-petitioner, it is recorded that “his integrity is beyond doubt”. The Reporting Officer wrote the following comments on the overall qualities of the officer i.e. the present petitioner which are reproduced below:-

           “Sh. Khemka is an intelligent and experienced officer. The officer possesses a very good understanding of various Acts and Rules. He can examine an issue thread bare bringing out all the pros and cons. He possesses good command over the written and spoken word. Against the revised plan budget estimate of Rs. 26.62 crores of the Science and Technology department, Rs. 25.35 crores was spent. Five years backlog for Haryana Vigyan Ratna and Yuva Vigyan Ratna Awards was cleared by him. The officer fully understands the power of social media. He frequently tweets on diverse subjects, including matters not directly related to his department. He has a sympathetic attitude towards the Scheduled Castes and weaker sections of society”.”

                                 Moving on, it is then observed that, “The Reporting Authority (Minister concerned) wrote the following remarks about the qualities and strength of the officer i.e., the present petitioner which are reproduced below:-

                “Mr. Ashok Khemka is well-known in the country for effective professional integrity under very difficult circumstances. Despite being in a relatively unimportant post, Mr. Ashok Khemka has shown excellent achievements under severe constraints. He is very innovative and was the first to use WHATSAPP in court proceedings to effect service upon the respondent. By his personal example, Mr. Ashok Khemka inspires many young officers. He has immense potential which can be utilized better by the Government”.”

                                          Furthermore, it is then pointed out that, “The Reporting Authority gave the overall grade on the scale of 1-10 as 9.92. However, the Accepting Authority i.e., the Chief Minister differed with the opinion of the Reviewing Authority and recorded the following remarks: –

                  “The Reviewing Authority has differed with the Reporting Authority but has not given any reason for the same. At best, his comment that the officer “has shown excellent achievements under severe constraints” contained in para 3 of Section IV can be so construed. But this is not substantiated since neither the Reviewing Authority nor the officer himself has specified any constraint what to talk of “severe constraints”. I, therefore, think that report of the Reviewing Authority is slightly exaggerated”.”

                                      More importantly, the Punjab and Haryana High Court Bench comprising of Justice Kuldip Singh and Justice Rajiv Sharma then very rightly held for which they must be appreciated and applauded that, “We are of the considered view that the remarks recorded by the Accepting Authority are liable to be expunged. The Accepting Authority has recorded that Reviewing Authority has differed with the Reporting Authority but not given any reason for the same. However the same is found to be absolutely incorrect as the Reviewing Authority has given brief reasoning recording that the petitioner is well known in the country for effective professional integrity under very difficult circumstances. Even Accepting Authority has not made any adverse remarks regarding the integrity of officer. Reference has been made to ‘excellent achievements under severe constraints’. It has also been mentioned that he is very innovative and has immense potential which can be utilized better by government. The Accepting Authority has recorded that the Reviewing Authority or the officer himself has not specified any constraint what to talk of ‘severe constraints’.”

                             It cannot be lost on us that the Bench then further goes on to held that, “We are of the view that some of the matters are better understood than said in expressed words. The severe constraints in which an honest and upright officer works under the political leadership are well known. There are so many pulls and pressures and the officer has to work according to the rules despite all these pulls and pressures. The Reviewing Authority has recorded that the petitioner is well known in the country for effective professional integrity under very difficult circumstances.” This alone explains why he was frequently transferred from one place to another because the brutal truth is that an honest person is rarely favoured wherever he/she goes!

                                          It also has to be borne in mind that the Court then commendably and very rightly goes on to state that, “We are of the view that a person of such professional integrity needs to be protected as the professional integrity in our political, social and administrative system is depleting very fast. Even the Reporting Authority i.e., the Chief Secretary, Haryana has recorded that petitioner is an intelligent and experienced officer. His integrity is beyond doubt. Therefore, an officer with such integrity many time has to face adverse circumstances which have been mentioned by the Reviewing Authority as ‘constraints’. Since number of such officers whose integrity is beyond doubt and who have professional integrity of higher standard is depleting very fast, therefore, they need protectonfrom being damaged by recording adverse remarks against the record.”

                          Most importantly, the Bench then also held most rightly that, “Consequently, we are of the considered view that leaving aside the time frame, the opinion of the Accepting Officer is liable to be expunged and so is the grading which is given 9.00 by the Accepting Authority. At the same time, we are of the view that the time frame fixed under the Rule for recording PAR is not a water tight compartment and there can be some flexibility in the same. Further it comes out that the Accepting Authority has not decided the representation of the petitioner so far. For the reasons recorded above, the impugned order dated 3.12.2018 (Annexure P-1) passed by Central Administrative Tribunal, Chandigarh Bench, Chandigarh is set aside. The remarks of the Accepting Officer and the grading of 9.00 given by the Accepting Authority are hereby set aside and the opinion given by the Reviewing Authority is restored. The grading of 9.92 given by the Reviewing Authority is also restored and will prevail upon the grading given by the Reporting Authority. Accordingly, the petition is allowed.”

                                   On a concluding note, let me be honest enough to concede that the names of Justice Kuldip Singh and Justice Rajiv Sharma shall always be written in my heart at least for this best judgment I have ever read and most notably for openly rooting in favour of a dead honest IAS officer who has always been in news for taking on corruption not fearing even the first family of India that is the Gandhi family which will hundred percent boost the morale of many more honest officers like him who due to frequent postings and adverse reports tend to succumb! But Dr Ashok Khemka is not one of them inspite of facing repeated transfers, harassment and humiliation and has emerged as the best example of an honest and upright IAS officer whom every Indian can and in fact must inevitably look upon as a worthy inspiration to follow! Anil Vij is the one politician who has hundred percent backed Dr Khemka as is evident in his observations and gradings which has already been discussed above and therefore every Indian must be proud of him also!  

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.    

It has to be said with consummate ease that in a notable and latest judgment titled Lucknow University Vandalism v. State of UP in PIL CIVIL No. 19390 of 2018 that was reserved on 29.10.2018 and delivered finally on 28.02.2019, the Allahabad High Court has commendably disposed of a suo motu PIL that it had instituted after violent protests caused injuries to many staff members of Lucknow University on July 4, 2018, by issuing temporary guidelines to all the state-aided universities. These guidelines were formulated by a Committee appointed by the Allahabad High Court on July 6. It will remain in effect until the state government and all government-aided universities frame the necessary rules and regulations to ensure a congenial and conducive environment for academic pursuits in institutions of higher learning.

As it turned out, a Division Bench of Allahabad High Court consisting of Justice Vikram Nath and Justice Rajesh Singh Chauhan had constituted the suo motu PIL after violent protests by a collection of individuals protesting against the rejection of their applications to the university. They alleged that their admission to the post-graduate courses had been denied because they had agitated against the visit of Yogi Adityanath. In the ensuing protests that followed, 10 University staff members were injured including Proctor Vinod Singh and Chief Provost Sangita Rani.

To begin with, the ball is set rolling in the judgment by first and foremost beginning by quoting Swami Vivekananda who once famously stated that, “Education is the manifestation of perfection already in man.” The background in which the purpose of education along with work atmosphere prevalent in any educational institution is then underscored and set out in para 1 which first and foremost points out that, “Education is the light that shows a mankind the right direction to surge. The purpose of education is not just making a student literate but after rationale thinking, knowledge and self-sufficiency. If education fails to inculcate self-discipline and commitment to achieve in the minds of a student, it is not their fault but it is somehow the fault of the entire system. Education is an engine for the growth and progress of any society; it not only imparts knowledge and skill along with inculcating values but it is also responsible for building human capital which creates, operates and sets technical, innovation and economic growth. Besides the above, if the atmosphere of any educational institution, in particular that of higher educational institution is not worthy of studying, nothing can be achieved out of that organisation and all that the students would achieve would be the degraded values, uncivilised and rustic behavior, irresponsible attitude towards the society and nation, sense of responsibility for one and all, etc. Resultant thereof there would be no scope and hope for development of the society and nation in all walks of life, whether it is social, economic, technical, political, philosophical etc. If the atmosphere of any higher educational system/institutes is destroyed, it results in the complete destruction of the values and thus the very purpose of such an organisation is defeated.”

While narrating the nitty gritty of this particular case, it is then observed in para 2 that, “In a backdrop of peculiar facts and circumstances, this Court took cognizance of a news item published in almost all the newspapers in respect of an unbecoming and unfortunate incident dated 4.7.2018 whereby a group of about 25 students, some of whom were rusticated students of the Lucknow University, entered into the University premises in the morning, blocked the way of the Vice Chancellor, raised slogans and threatened him of dire consequences. The motive of the aforesaid untoward incident was to pressurise the Vice Chancellor to take back the rusticated students in the University. It appeared that the said move was politically motivated inasmuch as the slogans to that kind were being uttered by some of the rusticated students. Anyhow, the Vice Chancellor escaped from the aforesaid vandalism with the aid and assistance of the security personnel of the University but in the afternoon when the Vice Chancellor was returning from one function, these students attacked him and his security inside the University campus, resultant thereof about ten teachers of the University were injured along with several security personnel and other ministerial staff of the University. Taking suo motu cognizance of the aforesaid incident in question, this Court passed an order dated 5.7.2018 as under:-

“In all the leading newspapers of Lucknow one of the front-page news is about the attack on the teachers of Lucknow University forcing the Vice Chancellor of the University to close the University indefinitely (sine die) and also at the same time stalling the entire admission process for the Academic Year 2018-19. The report further mentions that on 4.7.2018 a group of about 25 students which included some of the students who had been expelled from the University entered the University premises firstly around 11.30 A.M. and surrounded the Vice Chancellor and raised slogans and also threatened him of dire consequences and demanded re-admission. Later again at about 1.30 P.M. when the Vice Chancellor was returning from a function inside the University premises, these students again attacked the Vice Chancellor and his security. In the entire transaction that took place about 10 teachers of the University were injured along with several security and other ministerial staff of the University. The newspaper report further mentions that the police was informed about the likelihood of the expelled students creating ruckus but despite the same local police did not take appropriate measures to control the situation which was apprehended by the University administration.

It is unfortunate and extremely painful that the students have the courage, audacity and boldness to enter the premises from where they have been expelled and tried to create physical violence and attacked the Vice Chancellor, teachers of the University and staff of the University. Copy of the Hindustan Times Daily published from Lucknow and Dainik Jagran Daily published from Lucknow be made part of the record.

We accordingly direct that this may be registered as a Public Interest Litigation titled ‘Lucknow University Vandalism’.

Put up tomorrow at 10.15 A.M.

We require the presence of the Vice Chancellor, the Registrar and the Proctor of the Lucknow University before the Court for providing necessary assistance. Further we require the presence of the Director General of Police, U.P. and the Senior Superintendent of Police, Lucknow to inform the Court about the steps taken when the University authorities first informed about the likelihood of the incident taking place and also the steps taken after the incident had taken place. Sri Ramesh Pandey, learned Chief Standing Counsel will inform all the authorities mentioned above, both that of University and also of administration so that their presence is ensured”.”

To be sure, it is then explained in para 3 about taking suo moto cognizance by the Court that, “The purpose to take suo motu cognizance of the aforesaid incident was not confined to Lucknow University, but was to bring under its ambit and take judicial notice of a state-wide issue of rampant vandalism and anarchy prevalent in most government aided institutions/Universities in the State, relating to the environment in higher educational institutions, University or Degree College or Medical College or Management College etc. so as to ensure an atmosphere which is conducive and which encourages the students to attain their goals as per their dreams, and where parents do not hesitate in sending their wards to the institution concerned for the reason of any non-congenial, un-academic or unruly atmosphere. If the atmosphere of the higher University/Institute is such where vandalism, goondaism and anarchy is so deep rooted and is a routine feature, no sensible and responsible parent and student would prefer to take admission there. Normally, such types of incidents take place in higher Universities/Institutions, which are managed and controlled by the Government as against the private Institutions/Universities that maintain proper discipline. The stark contrast between the institutions managed/controlled by the Government and private universities/institutions is glaring when it comes to lack of security measures for students and staff on University campus. This Court vide order dated 6.7.2018 expressed its concern as under:-

“We had registered this Public Interest Litigation (P.I.L.) not only for the unfortunate incident which took place at the campus of Lucknow University, but also taking into consideration the number of incidents of rowdyism and vandalism which are occurring in the public institutions of higher education and learning in the State. Violent protests, vandalism, and aggressive agitation are not protected under the umbrella of the Right to Freedom of Speech and Expression and neither our constitutional ideology nor our values endorse it. In fact, such acts only tarnish the core values and ethos of the Constitution.

The incidents of vandalism in Universities’ campuses are spreading and it is becoming a recognizable national pattern. The students instead of adopting peaceful means of protests are now adopting radical and aggressive methods of protests, which are intensifying with each passing day. The support of political parties to such students bodies has further polarized the situation and is going against the spirit of student activism. In the present case, there is visible support of the outsiders in the vandalism, who are not associated with the institution in any manner.

Universities are the temple of modern India. They are the protective spaces for the promotion of democratic ideals of social imagination and civic values. They are trusted upon to educate and produce intelligent, compassionate, critically engaged citizens fully aware of the fact that without informed and educated citizens, there will be no law and order. But at present what is happening across the public universities in the country is juxtaposition. Students need to feel safe in order to learn, and therefore, it is necessary that we have discipline, law and order, a friendly environment of teaching and learning at all educational institutions. Failing in providing so, good students are turning their backs from public universities where education is provided for peanuts and moving to private universities and institutions which are charging hefty fees and flourishing. The basic requirement is determination of good learning environment in these Institutions. The Government is spending Crores of rupees on these Institutions, providing subsidized education for all. Entire infrastructure and human resource made available for imparting education is being utilized to the minimum and in fact is being wasted.

When so much expenditure is incurred, we feel it would be befitting that such huge expenditure would be appropriately and properly utilized to produce the best and for that, if a little more is required to spend, the Government should not think even twice, but implement such security measures as they may deem fit to ensure the best learning environment for the students.

Instead of involving all the different concerned Departments, we require the Chief Secretary of the State to constitute a Committee of the Principal Secretary and experts in the subject for designing a mechanism and laying down standard guidelines and policies for safe and healthy learning environment at these Institutions where students may come free from any kind of apprehension or fear of getting into any incident or mess and the parents may also feel free to send their children to such Institutions, rather than keeping them at home and suggesting that Institutions are unsafe or diverting them to other Private Institutions”.”

Going ahead, the Bench then observes in para 4 that, “Expressing its concern, as above, this Court vide order dated 6.7.2018 fixed the next date for 16.7.2018 and issued direction as under:-

“By the next date fixed, the Chief Secretary will file an affidavit, placing on record constitution of committee as required above and also may be fixed for the Committee to submit its report. We also require the Vice-Chancellor, Lucknow University to work out on similar lines by constituting a Committee and submitting the suggestions. He will also indicate in his affidavit the Constitution of the Committee and the time the Committee would take to submit its report.

Let a copy of the order be provided to Shri Ramesh Pandey, learned Chief Standing Counsel, free of cost, latest by Monday i.e. 9.7.2018, for necessary compliance. Other parties may obtain certified copies of the order on payment of usual charges.

The personal appearance of Vice-Chancellor and the Director General of Police would not be necessary for the next date, however, they are free to come to apprise the Court, but the Proctor, the Registrar of the Lucknow University and the Senior Superintendent of Police will remain present on the next date”.”

It would be instructive to note that it is then illustrated in para 5 that, “On 16.7.2018, this Court passed the following order: –

“Pursuant to our order dated 6.7.2018, the Proctor, the Registrar of the Lucknow University and the new Senior Superintendent of Police, Lucknow, Shri Kalanidhi Naithani are present.

Shri Savitra Vardhan Singh, learned counsel representing Luknow University has filed two separate affidavits, one sworn by the Vice-Chancellor and the other by the Proctor of the Lucknow University. Further, Shri V.K. Shahi, learned Additional Advocate General along with Shri Ramesh Pandey, learned Chief Standing Counsel and Shri Siddharth Dhaon, learned Additional Chief Standing Counsel have filed three separate affidavits, one sworn by the Chief Secretary, the other by the Director General of Police and the third by the present Senior Superintendent of Police, Shri Naithani.

Copies of the affidavits filed by the University have been provided to the State. Appropriate reply may be given within 10 days.

Further, in the affidavit filed by the Chief Secretary, an office order dated 13.7.2018 has been annexed as Annexure-I, whereby a Committee of 11 members have been constituted under the Chairmanship of the Additional Chief Secretary, Higher Education, Department of Government of U.P. and the said Committee is required to submit a report within a month, as observed in the order dated 6.7.2018.

Further, from perusal of affidavit of the Director General of Police reflects that on 5.7.2018, the Circle Officer, Shri Anurag Vats was transferred. Further, the Senior Superintendent of Police, who was posted at the time of incident, has also been transferred on 7.7.2018.

Annexure-A3 is a circular issued by the Director General of Police to all the Senior Superintendent of Police and Superintendent of Police in-charge of the different districts to provide adequate security and ensure that the atmosphere in the Institution of Higher Education of the State is made safe and secure.

According to the affidavit filed by the present Senior Superintendent of Police, the investigation is still going on. Separate police teams have been constituted to arrest the accused who have not been arrested so far. Only 7 accused have been arrested so far. In paragraph 15, it is stated that adequate police force has been deployed at the campus to keep the campus safe and secure. Other steps taken by the present Senior Superintendent of Police have also been mentioned in the affidavit and necessary papers have been attached. Further, 15 days’ time is sought by the Senior Superintendent of Police to arrest the remaining accused and complete the investigation.

The Proctor and the Registrar may submit their replies to the affidavits filed by the State today, if they so desire.

In the affidavit filed by the Vice-Chancellor, Annexure-A5 is an office order dated 11.7.2018, whereby a Committee of 15 members, chaired by the Vice-Chancellor, has been constituted to submit its report as required in the order dated 6.7.2018. In paragraph 17 it has been stated that the Committee will submit its report within 15 days from today.

In our order dated 6.7.2018, we had heard the parties present before the Court orally and had accordingly required them to file their affidavits to place their respective versions, which included 3 officers of the University and two from the Police Department. We have been informed that after passing of the order dated 6.7.2018, the Police administration transferred the then Senior Superintendent of Police on 7.7.2018. No affidavit has been filed by the then Senior Superintendent of Police. A reply may be filed to the affidavit filed by the Proctor by the then Senior Superintendent of Police also.

Further the Principal Secretary (Home) and the Director General of Police, both may file their separate affidavits placing on record the urgency and the reason why the Senior Superintendent of Police was transferred on the very next day when we had taken cognizance and had passed the order dated 6.7.2018.

On this aspect, we are not observing anything at this stage but after perusal of the affidavits of the Director General of Police and Principal Secretary (Home), if necessary, the same would be appropriately dealt with.

List this matter on 06th August, 2018 at 10.15 a.m.

By the said date the University would submit it’s report as it has required 15 days’ time and the progress of the Committee constituted by the Chief Secretary may also be placed on the next date.

On the next date, the Proctor of the Lucknow University and the Senior Superintendent of Police, Lucknow may again remain present”.”

Furthermore, it is then noted in para 6 that, “In compliance of the order being passed by this Court, Sri VK Shahi, learned Addl. Advocate General gave a statement on 13.8.2018 before this Court, that a Committee, as per the directions of this Court, has been constituted under the Chairmanship of Additional Chief Secretary, Higher Education in which there are eleven members and the said Committee is deliberating on the issue and would be submitting its report within fifteen days. On the same date i.e. 13.8.2018, two affidavits, one by Professor Vinod Singh, the Proctor and the other by the Vice Chancellor of the University were filed giving suggestions regarding modalities, which are required in the interest of the Institution in question. A copy of those suggestions was provided to the Committee so constituted under the Chairmanship of Additional Chief Secretary, Higher Education with the direction for the consideration and providing with further suggestions so that the atmosphere of these higher educational institutions be conducive, fixing the next date as 4.9.2018. Sri V.K. Shahi, learned Addl. Advocate General apprised the Court on 4.9.2018 that the Committee of eleven persons constituted by the Government is deliberating and apparently its report has been prepared, therefore, a week’s further time was sought to place the aforesaid report on record. Therefore, the case was posted for 18.9.2018.”

What follows next is what is so explicitly stated in para 7 that, “On 18.9.2018, Sri V.K. Shahi, learned Addl. Advocate General filed two affidavits; one was sworn by the Superintendent of Police, Lucknow placing on record status of the investigation and another one duly sworn by the Secretary, Higher Education, Lucknow enclosing therewith a copy of suggestions given by the Eleven Members Committee constituted by the Chief Secretary, Government of U.P. under the order of this Court. Since the suggestions had already been provided by the Vice Chancellor of Lucknow University on 6.8.2018 and the suggestions by the State Government through affidavit were filed later, this Court directed the Vice Chancellor, Lucknow University to examine the suggestions given by the Committee of the State Government and thereafter prepare a comprehensive report of suggestions which the University may prepare incorporating all the suggestions of the Committee of the State Government, which are not included in the University Report/ Suggestions so that this Court could consider the same on the next date and pass appropriate orders. This Court on 18.9.2018 directed the counsel for the Lucknow University to prepare a comprehensive report and place it before the Court in Hindi and English both, fixing the next date for 29.10.2018.”

To put things in perspective, it is then very rightly underscored in para 8 stating that, “The endeavour of this Court was to determine and prescribe the modalities to create perfect educational atmosphere in the higher Universities / Colleges / Institutes, be it Government Organisations, semi-Government organisations or private organisations so that the students of these organisations / institutes could not only achieve the best education, but also achieve their goals and prove to become assets to the society. It would be in the best interest of the nation inasmuch as the students, who reach on to higher posts and positions in the State instrumentalities and become the instrumentalities in policy making and could contribute their best. The modalities which are set up, rather have been determined and settled jointly by the State Government as well as by the Vice Chancellor of the Lucknow University would be fruitful not only for the University of Lucknow but for all the Universities; whether it be Medical University or Engineering College, Management College or any Degree College of the State Government.”

More importantly, it would be incumbent to now mentions what para 9 illustrates. It states quite explicitly and elegantly that, “On 29.10.2018, learned counsel representing Lucknow University filed an affidavit sworn by the Vice Chancellor, Lucknow University enclosing therewith a copy of the comprehensive report relating to the security measures to be taken by the higher educational institutions of the State as also by the State administration.”

For the sake of brevity, it must be said that in this same para 9, it is then mentioned specifically that,

“Comprehensive Report pursuant to order dt. 18.09.2018 passed by the Hon’ble High Court in PIL Civil No. 19390/2018

In due compliance of the directives of Hon’ble High Court the Vice-Chancellor, Lucknow University submitted his report as an Annexure to his Affidavit Dt. 06.08.2018. To the same reference 11 member Committee constituted by the State convened its meeting on 06.08.2018. After thorough discussion for providing conducive and free environment to the student for education in Universities/Institutions and to frame security standards and procedure report was prepared and submitted before the Hon’ble High Court by the State. In view of the order dt. 18.09.2018 and to prepare a comprehensive report, perusal of the report/minutes dt. 06.08.2018 prepared by the State was done. To invite more suggestions on the subject issue the Vice-Chancellor, Lucknow University convened a meeting of the Vice-Chancellors of all the Universities of the State of U.P. on 23.10.2018. Under the Chairmanship of the Vice-Chancellor, Lucknow University, the Vice-Chancellor of the six Universities and Registrars of the other Universities participated. During the meeting discussion at length was done for providing education friendly, free and healthy environment to the students of the University/Educational Institutions. Security measures and standards for maintenance of law and order in the Universities was also discussed. During the meeting there was a consensus about following measures for necessary action at the level of University Administration/State Administration.

Action to be taken at the level of University Administration:

1. The Proctor along with his team shall visit all the departments of University on regular intervals and ensure tough measures for security. He should maintain law and order in the campus by conducting surprise checks.

2. By department-wise co-ordination with the Heads of Departments responsibility and administrative work should be allotted to every member of proctorial team.

3. Fundamental Security standards should be established for controlling and regulating such incidents in University. Directives should be prepared for permitting entry to the students, teachers and employees of the University.

4. Grievance Redressal mechanism should be enforced for immediate redressal of the grievances of the students and the employees.

5. For ensuring internal security of the Universities and making standards, security audit of the campus should be done in due consultation with Police Administration.

6. For successful functioning of the Central mess or other mess of the University hostels, a committee should be constituted so that timely action could be ensured to deal with the unexpected incidents in the hostels.

7. For maintaining peace and discipline in the University, the Proctor of the University should make effective protocol and should ensure compliance.

8. Student Care System should be established at the level of University and regular efforts should be made for its empowerment.

Action to be taken at the level of state administration/district administration:

1. Regular meetings of the State level coordination committee must be ensured so that security standards in the Universities could be effectively implemented.

2. The Proctors of State Universities should be delegated with the powers of an Executive Magistrate as under Criminal Procedural Code on a permanent basis. These powers are conferred to them temporarily only during examination times.

3. Universities should be declared Academic/peace zones. Necessary legal action should be taken against whosoever found violating such zones.

4. For staging dharna/demonstration by the students, permission from University/District Administration should be made compulsory. Such demonstrations should be banned in University campus and should be permitted only on the places as identified by the District Administration outside the University.

5. Unauthorized entry of the outsiders and expelled students into the University Campus should be kept in the category of Criminal Trespass and action should be taken under the relevant provisions of Criminal Law Amendment Act/Goonda Act.

6. The District Administration should ensure the security audit standards of the campus in due coordination with University Administration.

7. Section 144 format should be prepared by police administration and guidelines should be prepared for its implementation in due consultation with university administration.

8. No student group under the banner of any political party should be allowed to enter into the University Campus. Unauthorized dharna/demonstrations should be prohibited under Section 144 of the Criminal Procedure.

Needless to say, it is then clarified in para 10 that, “The above-mentioned directions / measures are not all-inclusive and are open to additions by the appropriate authorities, so as to ensure the best interest of students, staff and Universities / institutions’ motto and curriculum and ought to be incorporated and enacted upon by the concerned Universities / institutional authorities so as to ensure the best possible outcome from each student, faculty and staff member. These guidelines would provide these government managed / controlled institutions / Universities to compete and be at par with the private institutions by eliminating anti-social activities and elements, thus resulting in meritorious and diligent students to opt for and take admission in these government managed / controlled institutions without any hesitation.”

It also cannot be discounted that it is then observed in para 11 that, “This Court has taken judicial notice of the budget sanctioned by the State for the State controlled / managed Universities / institutions which is a whooping amount of Rs 3506376 lacs i.e. almost Rs. Three thousand fie hundred crores for the educational financial year 2018-2019.” Para 12 then illustrates the enormous budget allocated for higher education in the state of U.P. for the financial years 2016-2017, 2017-2018 and 2018-2019.

Now coming to para 13, it minces no words in holding that, “It has been noticed by this Court that a huge budget is allocated for higher education but the atmosphere of the higher educational institutes of U.P. whether it be University or Colleges is not so productive and conducive for students inasmuch as quite often there is threat of insecurity for trivial issues. Students, who are not interested in studying and are interested in destroying the educational atmosphere of the University / Organisation ruin and collapse the entire atmosphere of the organisation for their ulterior motives resultant thereof the students at large, who are genuinely interested in studying, who come to the University to achieve higher standards in studies so as to achieve their goal, cannot achieve the same and sometimes give up on their dreams and aspirations, knowingly and unknowingly, and join those anti-social elements of the University, who are proxy students or ostensible students, consequently, depriving the nation from dedicated students with good academic background. All the aforesaid anti-social activities can be cured by adopting proper mechanism as there is no scarcity of funds, therefore, the aforementioned huge fund may be utilised in maintaining law and order along with a good, conducive and productive atmosphere in the campus.”

Honestly speaking, the Bench then acknowledges candidly in para 14 that, “We cannot turn our eyes away from the apparent and ostensive difference in tuition fee between the government managed / controlled institutions and the private universities / colleges, the result of which is evident when it comes to quality of education being imparted at both types of institutions.”

What’s more, the Bench then points out in para 15 that, “Education empowers an individual with intrinsic as well as instrumental values. It is but a means of development of the society as a whole which in effect is a step towards the empowerment of mankind. For this purpose to be truly fulfilled, education friendly environment is a must. With the Right to Education having been deemed as a Fundamental Right, our policy makers have ensured that proper and solid foundation be laid towards achieving this goal of educating every young mind in the nation. But it is important to take note here that an academic friendly environment is not only necessary just at the basic, primary level but also in higher educational institutes / Universities. It is these higher educational institutions / organizations that pave way for the next leaders of the nation in all streams of life, and therefore it is of utmost importance that a professional, productive and constructive environment is maintained in these institutes so as to enable the students to achieve their academic goals.”

It cannot be lost on us that the Bench then in para 16 among other things acknowledges the unpalatable truth that, “Unwarranted behaviour on University campus as in the present case which encourages vandalism, hooliganism, goondaism and anarchy is becoming a pattern / trend in the country and as is evident in this case, students with political / monetary backing are creating ruckus and chaos without any fear of sanction. It is time that these corrosive activities in the name of Student Body Elections and other activities be checked and controlled as per the regulations applicable by the Supreme Court not just for the sake of security but also to inculcate the ideology and principle of idealism and professionalism on campuses. It is the duty of the administrative system of the University and the State to ensure mental peace and safety for their children within the minds of parents.”

Simply put, the Bench then stipulates in para 17 that, “To ensure and fulfil the agenda, initiated today via this PIL, it is of utmost importance that the guidelines / measures above discussed should be implemented and enacted upon with utmost urgency so as to achieve productive and positive outcomes.”

Truth be told, the Bench then also acknowledges in para 18 that, “It has also been noticed that despite the colossal amount allocated to the University / Universities in budget, students with quality academic background and merit do not turn up to take admission on account of non-productive atmosphere in such Universities and these students prefer Private Universities / Colleges over Universities / Colleges managed and controlled by the Government. It is a well-known fact that with the backing of the sanctioned budget by the State, the government managed / controlled institutions / Universities hire the best ie. Crème de la crème, of faculty after due process and proper vetting. But due to the non-academic environment present in most of these institutions / Universities, meritorious students who avoid taking admission in the said Universities / institutions are depriving themselves, thus resulting in wastage / non-optimum utilization of the vast reservoir of knowledge at their dispense. The State is willing to finance and pump in money for the betterment of students as is evident from the budget quoted in the earlier part of this order but it’s a shame that the best of the best students cannot make use of this facility because of such unruly activities. Further, the free structure is very low and no substantial fund is generated out of fee of the students because of which for financial aid, such Universities bank upon the Central / State budget. The Universities may utilize this budget to uplift the educational atmosphere and standard of the University by providing good facility of library, improving standards of faculties, creating extra curriculum facilities relating to education, social, philosophical, physical and mental fitness etc in the Universities besides a sense of security and protection so that not only good students get attracted to the University but are also able to achieve high standards in life which would be in the best of their interest and in the best interest of the nation too. Therefore, the modalities which have been suggested by the competent authority of the State as well as by the Vice Chancellor of the University as considered above may be adopted in its letter and spirit.”

Finally and perhaps most importantly, it is then directed by the Allahabad High Court Bench in para 19 that, “We accordingly issue a Mandamus to the State Government and to all the government aided institutions of higher education and learning in all streams of education to frame the necessary statutes, rules and regulations and by laws / ordinances as may be necessary for maintenance of a congenial and conducive atmosphere of education within the campuses taking into consideration the suggestions / recommendations contained in the comprehensive report quoted in this order and any other provision which may be deemed necessary as we have already held that the suggestions and recommendations contained in the report are only inclusive and not exhaustive. For the said purpose we also direct the State Government and the government aided educational organizations to bring about the necessary laws within six months and till such time as necessary laws are enacted, the suggestions and recommendations quoted above may be implemented forthwith.”

All in all, this latest, landmark and laudable judgment by the 2 Judge Bench of the Allahabad High Court was the crying need of the hour! The State Government and the government aided educational organizations must abide by what the Allahabad High Court has directed so commendably and courageously by constituting suo moto PIL. It brooks no delay anymore! The comprehensive report submitted must be implemented in totality at the earliest along with other all such measures which even though not listed but are necessary in making the atmosphere of educational institutions more conducive and vibrant!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.