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C/M L.P. INTER COLLEGE, KANPUR THRU' MANAGER AND ANOTHER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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C/M L.P. Inter College, Kanpur Thru' Manager And Another v. State Of U.P. And Others - WRIT - A No. 14860 of 2007 [2007] RD-AH 10599 (15 June 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R

Reserved

Civil Misc. Writ Petition No. 14860 of 2007

Committee of Management,

L.P. Inter College, Kanpur and another  

Versus

State of U.P. and others

Hon'ble V.K. Shukla, J.

Committee of Management of L.P. Inter College, Kanpur, (old name  Kanya Kubj Inter College Maal Road, Kanpur) through its Manager Onkar Nath Awasthi, has approached this Court, for quashing of order dated 02.03.2007 passed by  District Inspector of Schools, Kanpur Nagar, and further for issuing a writ, order or direction in the nature of mandamus declaring Section 21 of U.P. Secondary Education Service Selection Board Act, 1982 as ultra vires of the Constitution of India. By means of Amendment Application, further prayer has been made for  declaring Section 18 of U.P. Secondary Education Service Selection Board Act, 1982 as ultra vires of the Constitution of India, in so far as it restricts the choice of the petitioner (Management of the institution) in selecting and appointing Principal of the institution as per its own choice.

Brief background of the case is that in the district of Kanpur Nagar, there is a recognized and aided institution known as L.P. Inter College, Kanpur, (old name  Kanya Kubja Inter College Maal Road, Kanpur). The provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal, Lecturers and L.T. Grade teachers is to be made strictly in consonance with the U.P. Secondary Education Service Selection Board Act, 1982  and the Rules framed thereunder in exercise of power under Section 35 of the said Act, known as U.P. Secondary Education Service Selection Board Rules, 1998. In the institution concerned, post of Principal fell vacant. Instead of handing over charge of officiating Principal to respondent No. 4, M.K. Bajpai, senior most lecturer in the  institution,  charge was handed over to one Jagdish Singh Sengar.  The  District Inspector of Schools by order dated 13.01.2004 on the footing that Jagdish Singh Sengar had better quality point marks, proceeded to accord approval to his ad hoc appointment. The said order was subject matter of challenge by M.K. Bajpai in writ petition No.1979 of 2004. This Court on 27.02.2004 allowed the writ petition and quashed the order dated 13.01.2004 passed by the  District Inspector of Schools, and a declaration was made that M.K. Bajpai was senior to Jagdish Singh Sengar and he was entitled to work as ad hoc Principal. In this backdrop M.K. Bajpai was handed over charge to perform and discharge duties as Principal of the institution. On 19.02.2006, an scuffle took place in between M.K. Bajpai and  Head clerk Shiv Kant Mishra. In regard to the said incident, F.I.R. was lodged by both of them. The Committee of Management of the institution in this background proceeded to place M.K. Bajpai under suspension and also proceeded to pass resolution for initiation of disciplinary proceedings for the said misconduct committed by M.K. Bajpai, and in his place Jagdish Singh Sengar was handed over charge of the office of the Principal, and papers were transmitted to the  District Inspector of Schools, Kanpur Nagar. The  District Inspector of Schools on 30.12.2006 passed order authorizing Jagdish Singh Sengar to function as officiating Principal of the institution. The Committee of Management undertook disciplinary proceedings against M.K. Bajpai. The enquiry committee submitted report on 05.02.2007 and M.K. Bajpai was asked to show cause against the proposed punishment. M.K. Bajpai submitted reply to the said show cause notice, and on 12.02.2007 resolution was passed mentioning therein that the issues sought to be raised by him were contrary to facts and law, and after deliberation, suspension of Mr. Bajpai was withdrawn and he was reverted back to his original post and was advised to resume his duties as Lecturer in Chemistry and report his compliance to Sri Jagdish Singh Sengar. Petitioner submits that  M.K. Bajpai, thereafter joined as Lecturer in Chemistry and started performing and discharging duties as such. Thereafter, order has been passed on 02.03.2007 by the  District Inspector of Schools, directing the petitioners to reply within 15 days from 02.03.2007 and further asked to permit Mr. Bajpai to function as Principal of the institution. At this juncture, present writ petition has been filed.

In the present case pleadings inter se parties have been exchanged. Thereafter, at the admission stage itself, with the consent of the parties, present writ petition is being heard and finally disposed of.    

Sri Arvind Srivastava, learned counsel for the petitioner, contended with vehemence; (a) In the present case, District Inspector of Schools, Kanpur Nagar, has totally misdirected himself by giving directives to ensure functioning of M.K. Bajpai as Principal of the institution in order to avoid contempt proceedings, whereas in the facts and circumstances of the present case order passed by this Court at the earlier occasion, had already outlived its utility, and the same could not have been used as an instrument to achieve the goal beyond the period prescribed therein, as such the authority to direct the petitioner to permit M.K. Bajpai to function as Principal of the institution has been misused, and same is clearly not permissible in law, as the power has been utilized giving illegal colour to the case without there being any justification for the exercise of said authority; (b) Right to administer the institution is fundamental right, and provisions like Sections 18 and 21 of the U.P.  Secondary Education Service Selection Board Act, 1982 are clearly ultra vires to the provisions of Article 19 (1) (g) of the Constitution of India, as same has the effect of putting unreasonable restriction; (c) An ad hoc appointee has no right to the post and once decision has been taken to revert him on his substantive status, none of his legal rights are infringed, and as such there is no requirement of taking any approval under Section 21 of U.P.  Secondary Education Service Selection Board Act, 1982 with regard to ad hoc appointee; (d) The office of the Principal is of great importance and entire academic atmosphere depends how the Principal conducts himself and handles the institution, and here Principal's guilt has been found, and ignoring the same, direction has been issued for ensuring his functioning, without there being any application of mind,  as such writ petition on all the score is liable to be allowed.

Sri Gajendra Pratap, learned counsel, appearing along with the Satyendra Prakash, for M.K. Bajpai, on the other hand, contended with vehemence that in the present case, on admitted position, M.K. Bajpai is the senior most lecturer in the institution, and as on date, order of suspension, which had been passed against him, has not been approved, rather to the contrary, same has been withdrawn, and once suspension order has been withdrawn and the resolution, which has been passed for reverting M.K. Bajpai, in regular departmental proceeding, has not been approved by the U.P.  Secondary Education Service Selection Board, under Section 21 of the U.P.  Secondary Education Service Selection Board Act, 1982, on the basis of same M. K. Bajpai cannot be reverted back, as any punishment without approval is void, and in this background, suspension having been revoked and there being no approval of the same under Section 21 of the U.P.  Secondary Education Service Selection Board Act, 1982, directive which has been issued is lawful directive and in the facts and circumstances of the present case, it is submitted that District Inspector of Schools, even if he has mentioned something incorrect on wrong premises, the same will not change the status of parties on admitted position and on admitted position, M.K. Bajpai being Senior most lecturer, there being no order of suspension and punishment having not been approved, M.K. Bajpai is entitled to perform and discharge duties as Principal and the order of reversion is of no consequence. In this background, it has been contended that writ petition is liable to be dismissed. On the question of reasonable restriction, it has been sought to be contended that State has right to impose reasonable restriction and as far as validity of U.P.  Secondary Education Service Selection Board Act, 1982, is concerned, the same has been already upheld in the past by Hon'ble Apex Court, as such the challenge which has been raised is unsustainable. Similar stand has been taken by Sri K.K. Chand, learned Standing counsel, appearing on behalf of State respondents.  

After respective arguments have been advanced, the first question, which is being looked into is, as to whether Sections 18 and 21 of the U.P.  Secondary Education Service Selection Board Act, 1982 impose unreasonable restriction on the rights of Management in the matter of managing the affairs of the institution as per their own choice and as such they are violative of Article 19 (1) (g) of the Constitution of India. Earlier appointment of teachers in recognized secondary educational institutions were to be governed by the provisions of U.P. Intermediate Education Act, 1921 and the Regulations made thereunder. It was felt that selection of teachers under the provisions of the said Act and the Regulations made thereunder was sometime not free and fair, as such besides it, selection was very much restricted. Thus, in order to have suitable teachers and to maintain the standard of education, it was considered  by the Legislature to constitute Secondary Education Service Selection Commission at the State level to select Principal, Head Master, Lecturer and L.T. grade teachers. Secondly, under Section 16-G (3) of the U.P. Intermediate Education Act, 1921, managements were authorized to impose punishment with the approval of the District Inspector of Schools, in matter pertaining to disciplinary proceeding, and thus provisions were there for punishment of dismissal, removal or reduction in rank and it was considered necessary that these powers should be exercised subject to prior approval  of the Commission or the Selection Board, as the case may be, which would function as an independent and impartial body. At the said point of time, State Legislature was not in session, and immediate action was considered necessary, with a view to set up Commission and Selection Board, U.P.  Secondary Education Service Commission and Selection Board, Ordinance, 1981 (Ordinance No.8 of 1981) was promulgated by Governor on 10.07.1980, which was subsequently after passing of the Bill was replaced by U.P.  Secondary Education Service Selection Board Act, 1982 (U.P. Act No. 5 of 1982). Function of Selection Board is to prepare guidelines in matters relating to method of direct recruitment of teachers; conduct examinations, hold interview and make selection of candidates for being appointed as teachers; to advise Management in respect of dismissal, removal, reduction in rank of teachers, and to perform such other duties direct or incidental to be discharged under the Act.                                    

Sections 18 and 21 of the U.P.  Secondary Education Service Selection Board Act, 1982, qua which challenge has been made, are being quoted below:      

  "18. Ad hoc Principals of Head Masters. - (1) Where the Management has notified a vacancy to the Board, in accordance with sub-section (1) of Section 10 and the post of Principal or Headmaster actually remained vacant for more than two months, the Management shall fill such vacancy on purely ad hoc basis  by promoting the senior most teacher,-

(a) in the lecturer's grade in respect of a vacancy in the post of the Principal.

(b)  in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.      

       (2)     Where Management fails to promote the seniormost teacher under sub-section (1) the Inspector shall himself issue the order of promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or Headmaster, as the case may be, from the date he joins such post pursuance of such order of promotion.

      (3)   Where the teacher to whom  the order of promotion is issued under sub-section (2) is unable to join the post of the Principal or Headmaster, as the case may be, due to any act or omission on the part of Management , such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or Headmaster, as the case may be, from the date he submits the said report.

     (4)    Every appointment of an ad hoc Principal or Headmaster under sub-section (1) of sub-section (2) shall cease to have effect from when the candidate recommended by the Board joins the post.

     21. Restriction on dismissal etc. of teachers.- The Management shall not except with the prior approval of the Board,dismiss any teacher or remove him from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily  or permanently) and any such thing done without such prior approval shall be void."

     

     A bare perusal of the provisions would go to show where the Management has notified a vacancy to the Board, in accordance with section  of Section 10 (1) of the afore-quoted Act and the post of Principal or Headmaster actually remained vacant for more than two months, the Management has to fill such vacancy on purely ad hoc basis  by promoting the senior most teacher, in the lecturer's grade in respect of a vacancy in the post of the Principal, and in the trained graduate's grade in respect of a vacancy in the post of the Headmaster. Sub-Section (2) of Section 18 provides that  where Management fails to promote the seniormost teacher under sub-section (1) the District Inspector of Schools has been authorised to issue the order of promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or Headmaster, as the case may be, from the date he joins such post pursuance of such order of promotion. Sub-section (3) provides that where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of the Principal or Headmaster, as the case may be, due to any act or omission on the part of Management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or Headmaster, as the case may be, from the date he submits the said report. Sub-section (4) of Section 18 provides that every appointment of an ad hoc Principal or Headmaster under sub-section (1) of sub-section (2) shall cease to have effect from when the candidate recommended by the Board joins the post. Section 21 the  Management shall not except with the prior approval of the Board, dismiss any teacher or remove him from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily  or permanently) and any such thing done without such prior approval shall be void.

Thus, Section 18 deals with filling up of post of Principal after vacancy in question has been notified to Selection Board and after passing of two months period for the integrnum period till regular selection is not made by the Selection Board, and Section 21 restricts the authority of the Managing Committee from exercising authority of dismissal, removal from service or                                                or reduction in rank or reduce his emoluments or withhold his increment for any period (whether temporarily or permanently) and any such thing done without such prior approval is to be treated as void.

Reliance has been placed by the petitioner on the case of Brahmo Samaj Education Society v. State of West Bengal and others, (2004) 6 SCC 224 for the proposition that State can very well provide the basic qualification for teachers, but as far as matter of selection and appointments are concerned, same vests with the Management and any restriction on the same by Legislature on the said front would be making serious inroad in the rights of the Management to run and administer the institution. In this regard case of Brahmo Samaj Education Society has been looked into. In the said judgment of Hon'ble Apex Court the provision of West Bengal College Teacher  (Security of Service) Act, 1975 was under challenge, and same was neither declared invalid nor was held ultra vires by Hon'ble Apex Court. In paragraphs 10 and 11 of the said judgment  categorical mention was made, that  when a larger Bench of 11 Judges in case of T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, has declared what the law on matter is, then we do not want to dilute the effect of the same  by analysing various statements made therein or indulge in any dissection of the principles underlying it, and it was mentioned that State Government shall take  note  of the declarations of law in this regard and make suitable amendments to bring them in conformity with the principles set out therein, and in this background, State Governments were asked to make suitable amendments to their laws, rules and regulations.  

Before this Court, placing reliance on the case of Brahmo Samaj Education Society (supra), Committee of Management of Bhagwati Adersh Vidyalaya Inter College filed writ petition, challenging the rights of State Government, and this Court vide its judgment reported in 2005 (5) AWC 4041, took the view that in view of the proposition  of law propounded in the case of T.M.A. Pai Foundation and others v. State of Karnataka and others, 2002 (4) AWC 3297 (SC), State Government can regulate method of selection and appointment of teachers after prescribing requisite qualifications for the same. Relevant extract of the said judgment (paragraphs 7 to 12) are being quoted below:

"7. The appointment of teachers in Secondary institutions recognized by the Board of High School and Intermediate Education was governed by the Intermediate Education Act, 1921 and Regulations made thereunder. It was felt that the selection of teachers under the provisions of the said Act and Regulations was at times not free and fair. Field of selection was also restricted which adversely affected the availability of suitable teachers and standard of education. It  was, thus, considered necessary to constitute the Secondary Education Service Commission at the State level to select Principals, Lecturers, Headmasters and L.T. Grade teachers. Under Section 16G (3) (a) of 1921 Act managements were authorized to impose punishment with the approval of the District Inspector of Schools in the matters pertaining to disciplinary action. This was found to be inadequate in cases where the Management proposed to impose punishment of dismissal, removal or reduction in rank and so it was considered necessary that power should be  exercised subject to approval of the Commission or Selection Boards. With a view to achieve the above objects, Uttar Pradesh Secondary Education Service Selection Board Act, 1982 was enacted. Pursuant to the same Secondary Education Service Selection Board for selection of teachers in Institutions recognized under the intermediate Act, 1921 was established.

8. Sections 3 and 4 of the 1982 Act prescribed for the establishment and composition of the Board while Section 9 lays down the powers and duties of the Board, one such power being to prepare guidelines relating to the method of direct recruitment of teachers and to make recommendations regarding the appointment of the selected candidates. Section 12 lays down the procedure for selection of candidates  by promotion and Sect8iion 16 provides for appointment to be made by the Management on the recommendations of the Board. Section 18 (1) vests the Management with the power for appointment of Principals and Headmaster on ad hoc basis while Section 18 (4) prescribes that every appointment of an ad hoc Principal and Headmaster shall cease to have effect from the date wen the candidate recommended by the Board joins the post. Section 22 of the Act prescribes punishment for appointment of teachers in contravention of the provisions of the Act. Section 33 prescribes the procedure for regularization of certain appointments and Section 34 empowers the Board to make regulations for holding selections, interviews and laying down the procedure to be followed by the Bord for discharge of its duties and performance of its functions.

9. Thus, as would appear that a complete procedure has been prescribed for selection  and recommendation of the selected candidates to the Management for appointment of candidates, the power of appointment being with the Management.

10. In Brahmo Samaj Education Society's case (supra) West Bengal College Teacher  (Security of Service) Act, 1975 was under challenge. The said Act was neither declared invalid nor was held ultra vires by the Hon'ble Supreme Court. The petition was decided in terms of interim orders made by the Apex Court. In paras 10 and 11 of the said report , it was observed as follows:

"10. When a larger Bench consisting of 11 Judges of this Court in T.M.A. Pai has declared what the law on matter is, then we do not want to dilute the effect of the same  by analysing various statements made therein or indulge in any dissection of the principles underlying it. We would rather state that the State Government shall take  note  of the declarations of law in this regard and make suitable amendments to their laws, rules and regulations to bring them in conformity with the principles set out therein.

11. In this view of the matter, it is unnecessary to examine whether the present rules are valid or not. Until such time as such rules are framed in terms of the order made by us now, the interim orders made by this Court in these proceedings will  operative."

11. In case T.M.A. Pai Foundation and others v. State of Karnataka and others,  2002 (4) AWC 3297 (SC) : (2002) 8 SCC 481, the Hon'ble Supreme Court in para 72 held as follows:

"Once aid is granted to a private professional educational institution, the government or the State agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The State, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the State. The State would also be under an obligation to protect the interest of the teaching and non-teaching staff. In many States, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions. The State, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers are prescribing requisite qualifications for the same."

12. In view of the aforesaid proposition laid down by the Apex Court the State can regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same, thus it cannot be gainsaid that Act of 1982 encroaches upon the right of the petitioners to manage the affairs of the institution. Act of 1982 is an exhaustive piece of legislation prescribing the method of selection, recruitment and appointment of teachers for the aided institutions, It does not run contrary to any of the provisions of 1921 Act or the Constitution of India, nor it is in derogation of any of the principles laid down by the Hon'ble Supreme Court in the aforesaid two decisions. Act of 1982 had been enacted so as to  select best amongst the academicians in order to maintain high standard in the matter of training and imparting education to the students who in their future years would play an important role in moulding the destiny of the nation. Their chances of selection/appointment cannot be marred by allowing the ad hoc appointees to continue."

        Thus, it cannot be gainsaid that U.P. Act No. V of 1982 encroaches upon the right of  the petitioners to manage the affairs of the institution. U.P. Act No. V of 1982 is an exhaustive piece of legislation prescribing the method of selection recruitment and appointment of teachers on substantive as well as ad hoc basis for the aided institutions, and it does not run contrary to any of the provisions U.P. Intermediate Education Act, 1921 or the Constitution of India nor is it in derogation of any of the principles  laid down by Hon'ble Supreme Court  in the aforesaid two decisions . U.P. Act No. V of 1982 has been enacted  so as to select best amongst the academicians in order to maintain high standard in the matter of training and imparting education to the students, and further to safeguard the interest of teachers, before they are subjected to any punishment prescribed.  Paragraph 72 of the judgment   in the case of  T.M.A. Pai Foundation and others v. State of Karnataka and others, 2002 (4) AWC 3297 (SC) is the complete reply, which unequivocally provides that when State aid is extended, it would be responsibility of the State Government to ensure that teachers working in such institutions are governed by proper service conditions, and further State in cases of such aided institutions has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same.                        

In the present case Legislative competence of the State Government to make Act is not at all disputed. However, it has been sought to be contended that Section 18 imposes unreasonable restriction on the right of Management to appoint ad hoc Principal of their choice, and without their wish senior most teacher is  thrusted upon the institution. In the present case section 18 as has been noted above, confers right on the senior most teacher to be appointed as ad hoc Principal of the institution. Said appointment is made, when the Management has notified the vacancy to the Selection Board, and post in question remained actually vacant for two months, then in this contingency till regular selection is not made by Selection Board, senior most teacher is to be promoted.  Substantive appointment is to be made on the recommendation of Selection Board. Once in the matter of substantive appointment  on the post of Principal, no role is assigned to be played by the Management, then certainly in the matter of ad hoc promotion of Principal, Management cannot have any legitimate grievance of their right being infringed. Under the 1998 Rules in the matter of direct appointment on the post of Principal, name of two senior most teachers are to be transmitted for the purposes of consideration of their claim for being appointed as Principal of the Institution, and till regular selection is not made on ad hoc basis, senior most teacher is entitled to function as Principal on account of his seniority status. The Management has not been given free hand to bypass the right of senior most teacher and said arrangement is to continue till regular Principal is sent by Selection Board. In the entire State of U.P. there is central system for making selection and appointment on the post of Principal, on account of which there is delay  in making selection, then in this background, once legislature has intended that  senior most teacher be handed over charge of the office of Principal, then same does not infringe  any of the rights of the Management from any quarter, as the State, in cases of aided institutions has ample power to regulate the method of selection and appointment. Much reliance has been placed on the judgment of Hon'ble Apex Court in the case of Secretary  Malankara Syrian Catholic Church v. T. Jose 2007 (1) SCC 386, for the proposition that appointment of Principal, is one of the integral facets to right to administer, and said right cannot be defeated. The said judgment is in context of minority institution, and present institution is non-minority aided institution, qua which State Government is competent enough to regulate the method of selection and appointment of teacher.  

Section 21 is meant for safe guard the interest of teachers resulting in dismissal or removal from service, or reduction in rank or reduction in his emoluments or withholding increment for any period. The object of the said provision is to keep check on the administration of the College by requiring the action to be approved. It provides opportunity to independent body to satisfy itself that the proposed action, which has been taken is lawful action and does not suffer from any vice, whatsoever. The provision is clear and categorical and it is merely a check on the action of the Committee of Management of the institution. Once the Committee of Management has exercised its authority  whether it is for real purpose for which it has been authorised, or for collateral purpose, all these questions are to be examined by an independent body like U.P. Secondary Education Service Selection Board. Sections 18 and 21 of U.P. Act No. 5 of 1982 do not make any inroad in the rights of the management to run and manage the affairs of the institution rather said provisions are aimed to avoid arbitrariness and strictly in consonance with the rule of fair play, as the institutions are to be run strictly in accordance with law and not at the whims and fancies of the Management.

In the present case once above noted question has been answered, then the facts of the present case are to be looked into. It is true that in the present case, District Inspector of Schools has issued letter on 02.03.2007 by observing that in writ petition No.1974 of 2004, this Court had given categorical direction in respect of functioning  of Mr. M.K. Bajpai as officiating Principal. There is no dispute on the fact that once incumbent  stands appointed under Section 18 (1) of U.P. Act No. 5 of 1982, then he has vested right to continue and function as ad hoc Principal and receive salary in Principal's grade till regularly selected candidate is recommended by U.P. Secondary Education Service Selection Board.   In between, in case said ad hoc appointee indulges  in any act of misconduct, then Management has full authority and jurisdiction to place him under suspension and take disciplinary proceeding as is envisaged under law. Thus, exit from the post of ad hoc Principal is permissible, but the same has to be done as per procedure established by law. District Inspector of Schools has unnecessarily mentioned that in compliance of the directives issued by this Court, the management should ensure functioning of  M.K. Bajpai as ad hoc Principal and compliance report be submitted. In fact the order of this Court has been misquoted  without there being any real cause for quoting the aforementioned order, inasmuch as the order passed by this Court  had already outlived its utility, as by virtue of being senior most lecturer, M.K. Bajpai had been handed over the charge of ad hoc Principal and had been functioning. Subsequent to the same, as in the opinion of the Management, he had already committed misconduct, action was taken against him.  In this background there was no occasion for the District Inspector of Schools to have mentioned that non-permitting M.K. Bajpai to function as ad hoc Principal, would be contempt. This observation of the District Inspector of Schools is totally out of context and ought not to have been mentioned in the order by any count.

      Mr. M.K.Bajpai had been functioning as ad hoc Principal of the institution in terms of sub-section (1) of Section 18 of U.P. Act No.5 of 1982, and in terms of sub-section (4) of Section 18, he has vested right to continue unless and until regularly selected candidate was recommended  by the U.P. Secondary Education Service Selection Board. The fact of the matter is that till date no one has been recommended by the Selection Board, as such Mr. M. K. Bajpai has vested right to continue till some one is recommended by  the Selection Board. In between in case, Mr. M.K. Bajpai indulged in any unlawful act, then the right of the management is not at all fettered for undertaking disciplinary proceeding, including by placing him under suspension and taking action as warranted in law. Here, in the present case, Management has proceeded to place Mr. M.K. Bajpai under suspension and in his place Jagdish Singh Sengar was asked to act as officiating Principal. In the disciplinary proceeding undertaken against Mr./ M.K. Bajpai, Enquiry Officer found him guilty of charge, as such in terms of Regulations 35 to 37 of Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921 action has been taken, by passing resolution withdrawing his suspension, and directing his reversion to the substantive post of Lecturer in Chemistry.

As far as power of suspension is concerned, it is always open to the Management to place an incumbent under suspension. However, said suspension can continue beyond 60 days only when it is accorded approval under Section 16-G (7) of the U.P. Intermediate Education Act, 1921, and in the event of there being no approval, suspension order automatically would be of no consequence. Here, in the present case, there is dispute as to whether suspension had been approved or not, but in the present case same is of no consequence for the simple reason that on subsequent occasion resolution has been passed to accept the report of the Enquiry Officer and the Committee of Management has chosen to withdraw the order of suspension. It is clear that Committee of Management has no objection in continuance of Mr. M.K. Bajpai as Lecturer in Chemistry in the institution. The only objection , which the Committee of Management has, is in regard to holding of office of the Principal. Thus, as on date, there is no order of suspension. Once there is no order of suspension, question is in what capacity, Mr. M.K. Bajpai should function; either as Lecturer in Chemistry or in the capacity of ad hoc Principal  of the institution. As already discussed above, an incumbent who is appointed under Section 18 (1) of U.P. Act No. 1982, has vested right to continue till regularly selected candidate is made available by the U.P. Secondary Education Service Selection Board. Here, till date no selection has been made, and thus, the ad hoc appointee under Section 18 (1) has vested right to continue till regular selection is made. Said right of ad hoc Principal has been taken away in the present case by passing resolution in question, reverting him to his substantive status of Lecturer in Chemistry. Can said resolution be enforced even without there being prior approval of the U.P. Secondary Education Service Selection Board. Much emphasis has been laid by the petitioners that ad hoc appointee does not have any right on the post in question, it is merely stop gap arrangement , as such none of the rights of ad hoc appointee are infringed, as such no approval is required. In this regard reliance has been placed on the judgment in the case of Dr. Ram Bilas Singh v. Rama Kant Shukla and others, 2004 (1) ESC 67. It is true that ad hoc appointee has no right to the post, however, where ad hoc appointment is governed by statutory Rules and Regulations and life span of ad hoc appointment has also been fixed, then the ad hoc  appointee has right to continue till regularly selected candidate is sent by the Selection Board. Said right cannot be curtailed, as here ad hoc appointment is based on the statutory provisions, occupying the field. In the case of Dr. Ram Bilas (supra), clearly and categorically, it has been held that ad hoc appointee under U.P.  Secondary Education Service Selection Board Act, 1982 has right to continue on such post till regularly selected candidate by the Board is made available and such ad hoc appointee cannot claim that he is entitled to continue in the office even after regularly selected candidate is made available. In paragraph 12 of the judgment, it has been mentioned that phrase "ad hoc" clearly means a temporary for the reason that appointment/promotion is made for a particular purpose and it continues till that purpose is over. Here, in the present case till date, no one has been recommended by the Selection Board, and thus in the context of Section 18 of the U.P.  Secondary Education Service Selection Board Act, 1982, an incumbent has vested right to continue till regularly selected candidate is sent by the U.P.  Secondary Education Service Selection Board, and in case in between exit route is to be shwon then same has to be done after following due procedure prescribed by law.

In the earlier part of the judgment, it has been discussed and detailed out that when ad hoc appointment is made on the post of Principal, rights are created by Statute, and as per statutory provisions (Section 18 (4) of U.P. Act No. 5 of 1982) said ad hoc appointee is entitled to continue till regular selection is made by the U.P. Secondary Education Service Selection Board, and during such period, he has to continue on the post of ad hoc Principal and is entitled for emolument. Thus, ad hoc appointment though it is made temporarily, but it is backed by statutory provisions, and it is for specific purpose. Section 21 of U.P. Act No. V of 1982, as is apparent from its language, is of very wide connotation,as it starts with restriction, which has been put on the authority of the Committee of Management. The authority  of Management to pass order is not disputed, the only restriction which has been imposed is that action of the Management shall come into effect only when approval is accorded to the same. Approval in clear sense means and connotes ratification of the action taken. Section 21 clearly provides that Management shall not except with the prior approval of the Board,dismiss any teacher or remove him from service, or reduce him in rank or reduce his emoluments or withhold his increment for any period (whether temporarily  or permanently) and any such thing done without such prior approval shall be void.  Mr. M.K. Bajpai has vested right to act as ad hoc Principal till regular selection is made, and in this background once resolution is clear and categorical by which Mr M.K. Bajpai  has been reverted back to his substantive post of Lecturer by way of punishment, then the said order cannot be implemented and given effect to unless and until the same is approved under Section 21 of the Act. This Court in the case of Yogendra Pal Singh v. State of U.P., writ petition No.41258 of 2005, decided on 23.05.2005 has already taken the view that even in the matter of ad hoc Principal  when punishment is to be imposed then Section 21 comes into play and due permission has to be obtained. Relevant extract of the said judgment is being extracted below:  

"Here in the present case petitioner has been performing and discharging the duties of the Principal, though on ad hoc basis, of the institution and was being paid his salary in Principal's Grade. Disciplinary proceeding had been sought to be taken  against him under Chapter III Regulations 35 and 37 of U.P. Intermediate Education Act, 1921. In the said disciplinary proceedings,  petitioner is alleged to have been found guilty and it has been resolved that petitioner be reverted back to his original post of Lecturer. Once this resolution was passed then clearly same was reduction of emoluments and his statutory right to function as Principal was being divested and in this contingency and background Section 21 of U.P. Act No. 5 of 1982 is clearly applicable and attracted and District Inspector of Schools himself had no authority to pass order and to the contrary it was incumbent and obligatory upon him to refer the matter to the U.P. Secondary Education Service Selection Board, U.P.  at Allahabad for taking decision. District Inspector of Schools in the present case has clearly usurped the authority of the U.P. Secondary Education Services Selection Board, as such order which has been passed is clearly without jurisdiction.

Consequently, order dated 30.04.2005 passed by respondent No. 3 filed as Annexure No. 20 to the writ petition is hereby quashed and set aside. District Inspector of Schools is directed to transmit the entire papers as per regulatory provisions framed in this respect before U.P. Secondary Education  Services Selection Board at Allahabad for taking appropriate decision on the resolution so forwarded by the Committee of Management, in accordance with law. The papers be transmitted within one month from the date of receipt of certified copy of the order and thereafter Selection Board shall take final decision preferably within next three months thereafter.

Till the decision is not taken by U.P. Secondary Education Services Selection Board, interim management as is continuing pursuant to the order dated 04.09.2004 shall continue to the remain in operation.

Subject to above observations, present writ petition is allowed."

As per this judgment even in the matter of ad hoc Principal prior approval by the U.P. Secondary Education Service Selection Board is condition precedent for giving effect to the order of punishment, and in case any such thing has been done, same is void. Division Bench of this Court in the case of Surendra Pal Singh v. Kamlesh Singh and others, 2006 (6) ADJ 500, has placed appointment of senior most teacher to function as ad hoc Principal, on very high footing by mentioning  that right of senior most teacher can be bypassed in extra ordinary circumstances, where he is on death bed or suspended or alike. Here, in the present case suspension has been withdrawn, which is the right of management, and for which no approval is required, but as far as resolution which has been passed as a measure of punishment reverting Mr. M. K. Bajpai to the post of Lecturer in Chemistry and directing him to function as ad hoc Principal, same cannot be implemented and given effect to, without approval of the same and same would be void. In this background, reversion of Mr. M.K. Bajpai cannot be given effect to unless and until the same is ratified by the U.P. Secondary Education Service Selection Board, under Section 21 of the U. P Act No. V of 1982.

Much emphasis has been laid on the fact that Principal of institution holds key post in the institution; institution is personified through its Principal, and a bad Principal will spoil the institution, and functional efficacy of school/college depends upon efficiency and decidation of Principal, and here Principal has been found guilty, as such he should not be permitted to function as Principal. There is no dispute in respect of the importance of the office of  Principal. In case, Principal had indulged in act of indiscipline, certainly he can be hauled up for his alleged act of misconduct. Regular departmental proceeding has been undertaken against ad hoc Principal, wherein he has been found guilty, and the punishment which has been imposed is curtailing his statutory right to function till regular selectee was sent by Selection Board and receive salary in Principal's grade, and asking him to function as Lecturer in Chemistry, under his junior. This is well settled that when statute enviasages an act to be performed and carried out in particular manner, the same has to be carried out and executed in the manner prescribed and any deviation from the same cannot be subscribed. Punishment without approval  cannot be implemented and given effect to, and this is equally well settled that no directives can be given by Court to violate law. This Court will not pre-judge the issue, as to whether, ad hoc Principal is guilty of the charges or not, as any observation, on the said aspect of the matter, at this stage of proceeding, would amount to encroachment on the right and functions of statutory authority. Consequently, in the present case on admitted position, as on date Committee of Management has chosen to withdraw the order of suspension,and once order of suspension has been withdrawn, and as far as resolution of reversion, reverting  Mr. M. K. Bajpai from the status of ad hoc Principal to the substantive status of lecturer in Chemistry is concerned, without approval of the U.P. Secondary Education Service Selection Board, same is of no consequence, in this background, even though order has been passed by District Inspector of Schools on incorrect ground, but in law Mr. M.K. Bajpai can not be prevented from performing and discharging his duties as ad hoc Principal, unless and until resolution of reverting him is approved  by the U.P. Secondary Education Service Selection Board.

Much emphasis has been laid on the fact that validity of the order be tested on the grounds set forth in the body of the impugned order, as per the case of Mohinder Singh Gill v. Chief Election Commissioner, AIR, 1978 SC 851, and other grounds are not permitted to be examined. Said proposition is not disputed, but with the change of time, it has been held that it is equally well settled that when only one conclusion is possible, then in that event  in exercise of authority under Article 226 of the Constitution, Court can refuse to exercise its discretion, even where principle of natural justice  has not been followed, and any exercise undertaken would be futile one. See AMU v. M.A. Khan 2000 (7) SCC,529. Here also on admitted position, only one conclusion is possible, which has already been noted above.

In the facts and circumstances of the present case, this Court refuses to  interfere with the impugned order. However, as the Committee of Management has already passed resolution against Mr. M.K. Bajpai, in case it is transmitted to the District Inspector of Schools, Kanpur Nagar, the District Inspector of Schools will be obliged to transmit the same to the U.P. Secondary Education Service Selection Board. On papers so received, U.P. Secondary Education Service Selection Board, Allahabad shall take appropriate decision in accordance with law without being influenced by any of the observations made in the body of this judgment, after affording opportunity of hearing to the Management as well as Mr. M. K. Bajpai, and  thereafter functioning of M.K. Bajpai shall abide by decision taken by the U.P. Secondary Education Service Selection Board.

After this judgment was reserved another writ petition had been filed by the Management, wherein prayer was confined to the effect that papers be transmitted to Selection Board, for approval. Therein time bound direction has been given, which should be complied with in its word and spirit.

Subject to observations made above, writ petition is dismissed.      

15.06.2007

SRY.

             


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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