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JAGDSH NARAIN AWASTHI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Jagdsh Narain Awasthi v. State Of U.P. And Others - WRIT - A No. 18910 of 2007 [2007] RD-AH 6614 (11 April 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 39

Civil Misc. Writ Petition No. 18910 of 2007

Jagdish Narain Awasthi

Versus

State of U.P. and another

Hon'ble V.K. Shukla, J.

Heard learned counsel for petitioner and Sri V.C. Mishra, Sri A.K. Yadav, Advocates, as well as learned Standing Counsel for respondents.

Petitioner claims that he is ad hoc Principal of Sri Pathik Shiksha Parishad Inter College, Sadh, District Kanpur Nagar, and his functioning, as ad hoc Principal, is not at all liable to be interfered with on the strength of order dated 22.03.2007 passed by Manager of the institution.

Brief background of the case is that in the district of Kanpur Nagar, there is a recognized institution known as Sri Pathik Shiksha Parishad Inter College, Sadh, District Kanpur Nagar. In the said institution, petitioner had been appointed as L.T. Grade Teacher, and subsequently, he was promoted as Lecturer. Petitioner claims that one Onkar Nath Dwivedi was performing and discharging duties as Officiating Principal and further he attained the age of superannuation on 30.06.2003 and since then petitioner has taken over the charge of officiating Principal. In the institution concerned, prior to  Onkar Nath Dwivedi, one Jagdish Prasad Tripathi had been functioning and discharging duties of Principal. Disciplinary proceedings were undertaken against him and papers were transmitted to U.P. Secondary Education Service Selection Board, Allahabad, and in terms of Section 21 of U.P. Act No. 5 of 1982, resolution passed by the Committee of Management of dismissal was accepted on 29.01.1988, and thus, substantive vacancy on the post of Principal occurred on account of dismissal of Jagdish Prasad Tripathi as principal of the institution. Jagdish Prsasad Tripathi filed writ petition No. 14541 of 1988, which is pending. After his dismissal, Onkar Nath Dwivedi was given charge of officiating Principal on 07.07.1984 and he continued to function till April, 1985, and thereafter petitioner functioned as Officiating Principal since 19.04.1985 to 16.09.1994 and thereafter Onkar Nath Dwivedi was given charge of Officiating Principal and he continued as such till he attained the age of superannuation on 30.06.2003. It would be relevant to point out here that as order of dismissal had been passed against Jagdish Prasad Tripathi and substantive vacancy had occurred, consequently, said vacancy was duly notified to U.P. Secondary Education Service Selection Board by the  Managing Committee of the institution and same formed the part of advertisement No.1 of 1995-96. Thereafter, Vijay Bahadur had been selected as Principal by the U.P. Secondary Education Service Selection Board and his name figured in panel dated 03.08.1996. The Management of the institution filed writ petition No.26781 of 1996, and said writ petition was dismissed lon with bunch of writ petition, Balak Singh Kushewaha v. State of U.P.. Only liberty given in the said judgment to the Management was to raise question as to whether the candidate recommended by the Board possessed requisite qualification or not. The matter has been thereafter decided by the Hon'ble Apex Court also in the case of Kiran Gupta and others vs. State of U.P. And others  2000 (7) SCC 719. Petitioner submits that Onkar Nath Dwivedi submitted representation on 29.11.2000 before the Joint Director of Education, who considered the matter and rejected the claim of Onkar Nath Dwivedi on 24.04.2001. Petitioner further submits that in the order passed by the Joint Director of Education, it was mentioned that the post of Principal was not substantively vacant, as such claim of regularization, cannot be considered. Petitioner has brought on record approval letter dated 31.01.2004 issued by  District Inspector of Schools, approving ad hoc appointment of petitioner. Petitioner has contended that on on 07.08.2004 selected candidate himself has asked for  taking charge in another institution. Petitioner has contended that District Inspector of schools has passed detailed order for taking over charge. It has been contended that contempt petition had been filed and therein personal appearance has been directed, as such order impugned has been passed by the Manager to hand over the charge. At this juncture, present writ petition has been filed.

Sri V.C. Mishra, learned Counsel or petitioner, contended with vehemence that in the present case, there is no substantive vacancy on the post of Principal, as has been observed by the Joint Director of Education, as such Vijay Bahadur cannot be appointed in the present institution.  

Countering the said submission, Sri A.K. Trivedi, Sri A.K. Yadav, Advocates as well as learned Standing Counsel, on the other hand, contended that selection of contesting respondent has been affirmed by Hon'ble Apex Court, and there has been substantive vacancy which had been notified, qua which selection has been made, as such no interference is warranted.

After respective arguments have been advanced, the factual position which  emerges is to the effect that substantive vacancy had occurred in the institution concerned on account of dismissal of Jagdish Prasad Tripathi, once resolution of Managing Committee was accepted by U.P. Secondary Education Service Selection Board, in exercise of authority vested under U.P. Act No. V of 1982. Merely because Jagdish Prasad Tripathi had filed writ petition before this Court, it did not mean that the vacancy in question was not substantive one. However, selection and appointment would certainly be subject matter of final result of the aforementioned writ petition. Once there was no interim order , against the order of dismissal, then the statutory consequences were inevitable, and the same has to take its course, which has been taken in the present case, by notifying the vacancy, and thereafter advertising the vacancy, followed by selection proceedings, which have been upheld up to the level of Hon'ble Apex Court. Once there was substantive vacancy on account of resolution of dismissal being approved, then it was wholly inappropriate on the part of the Joint Director of Education to mention that, as writ petition was pending before this Court, there was no substantive vacancy. This was totally erroneous view, and on the strength of the same, selection of candidate cannot be set at naught. Selection and appointment of Vijay Bahadur has been upheld by Hon'ble Apex Court, and the only issue which was left open, was as to whether the selected candidate fulfils the eligibility criteria. It is not at all case of the petitioner that Vijay Bahadur  does not fulfil the eligibility criteria. Once Vijay Bahadur is selected candidate and the petitioner is officiating  ad hoc Principal, then in terms of Section 18 (4) of U.P. Act No. 5 of 1982, the petitioner will have to give way to the candidate selected by U.P. Secondary Education Service Selection Board, as such no relief can be granted to the petitioner.

Moreover, in the present case, petitioiner has deliberately and intentionally, not given details of Civil Misc. Writ Petition No.28800 of 2003, filed by Management and Principal, wherein on 07.05.2004, interim olrder passed has been vacated, and against which  Special Appeal No. 667 of 2004, has been filed, wherein no interim order has been passed. Petitioner is one of the appellants in the said Special appeal.

Petitioner has not been truthful while approaching this Court. Consequently, writ petition fails and the same is dismissed.  

11.04.2007

SRY


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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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