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Santosh Kumar Jain v. State Of U.P. & Others - WRIT - A No. 37555 of 2001 [2006] RD-AH 3259 (13 February 2006)


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Court No. 9.

Civil Misc. Writ Petition No. 37555 of 2001.

Santosh Kumar Jain                       ...                    Petitioner


State of U.P., and others                ...                    Respondents.

Hon. Sunil Ambwani, J.

Heard Sri Rajendra Prasad Tiwari for petitioner and Sri M.D. Singh Shekhar assisted by Sri Rajiv Kumar Srivastava for respondent no. 7, Dr. Ghanshyam Dutt Misra.

The brief facts as stated in my order dated 21.12.2001 by which the stay application was rejected are reproduced as follows:

" It is submitted on behalf of the petitioner that he was appointed as lecturer, ''Economics' in the institution on 21.7.1969.  The post of Principal, held by Sri Ram Bhuwan Upadhyaya, fell substantively vacant on his retirement on 30.6.1999.  It was notified to the U.P. Secondary Education Service Selection Board, Allahabad.  The said vacancy has also been advertised by the U.P. Secondary Education Service Selection Board by means of advertisement No. 1 of 1998-99.

The petitioner, being the senior-most teacher, was called for interview vide interview letter dated 7.7.2001 and that the interview had been held on 27.7.2001.  The final publication of the merit list is awaited.  The senior most teacher Sri Behari Lal Misra was appointed as officiating/adhoc Principal of the institution who retired on 30.6.2001.  Thereafter, the petitioner, as senior most teacher in the institution, was appointed as officiating principal with legitimate expectation to be selected as Principal by the U.P. Secondary Education Service Selection Board, Allahabad.

There was a dispute about the election of committee of management between Hanuman Prasad Sharma and Sri Madan Gopal Sharma, claiming to be elected as Manager in the elections held on 13.9.1998 and 15.9.1998.  Neither of the two groups were granted recognition and that by order dated 16.4.2001, the Joint Director of Education, Jhansi Region, Jhansi issued direction to the District Inspector of Schools Chitrakoot


to the effect that there did not exist any recognized committee of management in the institution.  In pursuance to the aforesaid order, the District Inspector of Schools, Chitrakoot had passed a further order dated 20.4.2001 placing the account of the institution under single operation, under section 5 of the Payment of Salary Act, 1971.  Pending the publication of merit list and the dispute regarding the management, the Additional Director of Education (Secondary) U.P. Allahabad on 9.10.2001 has directed the transfer of Dr. Ghanshyam Dutt Misra from the post of Principal, Prem Vidyapeeth Inter College Prempur, Kannauj to the post of Principal, Seth Radha Krishna Poddar Inter College, Chitrakoot Dham.  It has been submitted that there is no recognized committee of management and as such Sri Hanuman Prasad Sharma, who is not functioning as Manager of the committee of Management, had no aright to give approval.  In para 24 of the writ petition, it has been alleged that the District Inspector of Schools has not given any approval and as such the information allegedly given is illegal and violative of provisions of Regulations 55 to 61 of Chapter III of the Regulations framed under the Intermediate Education Act, 1921."

Sri Rajeev Kumar Srivastava, learned counsel appearing for respondent no. 7 Dr. Ghanshyam Dutt Misra, submitted that there is no statutory provision restricting the transfer pending the selection on the same spot by the U.P. Secondary Education Services Selection Board.  The respondent no. 7 applied for transfer after following the procedure laid down in Chapter III of Regulations framed under the Act and obtained the consent of both the committee of managements of the college from where the petitioner was transferred and the college in which the petitioner has joined and the consent was given by its manager Sri Hanuman Prasad Sharma, who is managing the affairs of the institution whereby the respondent no. 7 was transferred and had taken over the charge as Principal of the institution on 29.10.2001 and that his signatures were attested by the District Inspector of Schools, Chitrakoot on 9.11.2001 in Civil Misc. Writ petition No. 656 of 2001, between Narendra Kumar and State of U.P. and others connected with Civil

Misc. Writ Petition Nos. 1101 of 2001; 22214 of 2001 and 22928 of 2001.  In this judgment, this Court has held that Article 16 of the Constitution does not apply to the


post of principal of a privately managed educational institution, even though the institution may be receiving aid and grant from the Government and even though in respect of some of the functions of the private management, there may be supervisory powers given to the State for the purposes of  ensuring that the private management keeps within the framework of law and fairness.

In the present case, the respondent no. 7 has joined the institution on 29.10.2001, and his signatures have been attested and further, the results of the interview held by Selection Board for selections of Principal are still awaited.  In the circumstances, I do not find it expedient or in the interest of justice to issue any interim orders at this stage.

The stay application is rejected."

Learned counsel for the petitioner has challenged the transfer order of respondent no. 7 on the grounds namely: (1) there is no approval to the transfer of respondent no. 7 by the committee of management of Seth Radha Krishna Poddar Inter College, Chitrakoot Dham as there was no validly elected committee of management  and the Manager on that date when the alleged approval for transfer  was given;  (2) transfer order has not been passed by the Joint Director of Education; (3) The Petitioner's result of the interview in respect of his regular  selection for the post of Principal is still awaited, and (4) in view of the express prohibition under Regulation 55 of Chapter III of the Regulations made under U.P. Intermediate Education Act, 1921, the respondent no. 7 could not be posted in his own home district.

So far as first ground is concerned, I find from the counter affidavit that Hanuman Prasad Sharma , the Manager of the college has authenticated resolution no. 2, of the committee of management dated 29.1.2001 ( Annexure CA-3), giving its approval for transfer of respondent no. 7.  The same Sri


Hanuman Prasad Sharma had given charge to the petitioner as Officiating Principal of the college on 24.6.2001.  This Court is not entering into the controversy with regard to the validity of elections of the Management Committee inasmuch as the petitioner has himself accepted and relied upon the fact that the same Sri Hanuman Prasad Sharma was the Manager who had given him charge as officiating principal.  The petitioner had relied upon  the letter dated 26.6.2001 of same Manager,  which appears to an after thought, to the Joint Director of Education, Jhansi Region, Jhansi, stating that the approval given by him is not in accordance with law.

The second ground need not detain the court as I find that the transfer order was passed by the Deputy Director of Education, Jhansi Region, Jhansi, for and on behalf of Joint Director of Education who is the competent authority for transfer.

In so far as the ground no. 3 is concerned, the entire selection for the post of Principal has been set aside by this Court in Anand Narain Singh's case on the ground of illegality is prescribing qualifications advertised in the newspapers, and that the matter is sub-judice before the Supreme Court.

The fourth ground was not taken in the writ petition.  There is no pleadings with regard to the fact that the petitioner is resident of Chitrakoot.  This ground, therefore, cannot be allowed to be taken at the hearing stage, more particularly when the respondent no. 7 has functioned as regular Principal of the College now for about five years.

The writ petition is dismissed.

Dt. 13.2.2006.



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