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Shri Prasiddhi Narain Singh v. State Of U.P. Thru' Secy. Secondary Education & Ors. - WRIT - A No. 32264 of 2004  RD-AH 7953 (27 April 2007)
Court No. 39
Civil Misc. Writ Petition No.32264 of 2004
Shri Prasiddhi Narain Singh
State of U.P. and others.
Civil Misc. Writ Petition No. 6009 of 2007.
Shri Prasiddhi Narain Singh
State of U.P. and others.
Hon'ble V.K. Shukla,J.
In the district of Basti there is recognized institution known as Ram Das Udai Pratap Audyogik Inter College, Bhatpurwa, Chilma Bazar, District Basti. Said institution is duly recognized institution under the provision of U.P. Intermediate Education Act, 1921 and Regulations framed there under. Institution in question is in grant-in-aid list of the State Government and the provision of U.P. High School and Intermediate (Payment of Salaries to the Teachers and other Employees) Act, 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal/Lecturer/ L.T. Grade Teachers, which is inclusive of promotion also is made as per the provision of U.P. Secondary Education Services Selection Board Act, 1982 and Secondary Education Services Selection Board Rules, 1998, framed in exercise of power vested under Section 35 of U.P. Act No. V of 1982. In the institution concerned post of Principal fell vacant on 30.6.2003 on account of attaining the age of superannuation of Sri Ram Nihore Chaudhari. Petitioner claims that by virtue of being senior most Lecturer in the institution, he was entitled to hold the post of Officiating Principal. Petitioner has contended that in-spite of the fact that he was senior most Lecturers qua Sardev Misra. Frivolous dispute of seniority was sought to be raised and in the garb of same charge of officiating Principal was sought to be handed over to him, as such petitioner approached the D.I.O.S., Basti for handing over the charge of officiating Principal of the college. Petitioner has contended that D.I.O.S., Basti on 10.7. 2003 asked the Managing Committee to ensure handing over charge to the petitioner. Said order dated 10.7.2003 was subject matter of challenge before this court in Civil Misc. Writ Petition No. 30797 of 2003 (Sarvadev Mishra Vs. State of U.P. and others. This court on 21.7.2003 dismissed the said writ petition holding therein that Sri Prasiddha Narain Singh petitioner is entitled to function as officiating Principal subject to decision of appeal by the Director of Education in respect of seniority. In between D.I.O.S., Basti on 16.7.2003 proceeded to cancel the order dated 10.7.2003 with immediate effect without giving any notice or opportunity of hearing to petitioner. Petitioner has contended that he has served copy of the order dated 21.7.2003, to the concerned but the Educational Authority did not pay any heed to the same and to the contrary application was moved for recalling of the order dated 21.7.2003 passed in Civil Misc. Writ Petition No. 30797 of 2003, on the basis of subsequently order dated 16.7.2003, but this court on the basis of material as available on record refuse to accept the said request of withdrawing order dated 21.7.2003. There after, Joint Director of Education also decided the seniority dispute and therein Joint Director of Education took the view that petitioner was senior most. In-spite of the order dated 21.7.2003, this court in spite of fact that petitioner was declared senior in the order passed by the Joint Director of Education dated 21.10.2003, petitioner was not handed over the charge of the office of Principal and to the contrary on 4.12.2003 petitioner was sought to be placed under suspension and was prevented from entering in the campus of the college. After Resolution of suspension has been passed, papers were transmitted to D.I.O.S. Petitioner has contended that thereafter impugned order dated 24.1.2004 has been passed dis-entitling the petitioner to function as officiating principal of the institution. At the said juncture Civil Misc. No. 32264 of 2004 has been filed. During pendency of Writ Petition, Sardev Mishra died. Petitioner represented for handing over of charge of the office of Principal on 7.11.2006, request of petitioner was not accepted, and the Managing Committee on 12.11.2006, passed resolution against petitioner and proceeded to hand over charge to one Ram Yagya Chaudhari, who is junior most lecturer in the institution, and District Inspector of Schools, on 27.11.2007, attested his signature. At this juncture Civil Misc. Writ Petition No. 6009 of 2007, has been filed. Thereafter both the writ petitions have been directed to be taken up, together, and thereafter with the consent of parties, on the basis of pleadings, in earlier writ petition, both the writ petitions are being taken up for final hearing and disposal.
Counter affidavit has been filed in the present case on behalf of the respondent no.4, Management of the institution and therein it has been sought to be contended that permanent Principal of the institution, Sri Shiv Paltan Chaudhary retired from service on 30.6.1999 and against the said vacancy, Sri Ram Nihore was given charge of the Principal, who retired from service on 30.6.2003. It has been contended that conduct and functioning of petitioner has not at all been satisfactory, and from the student of the institution fees which had been realised, petitioner has not deposited the fees amount and no reply has been given to the notices issued by the Managing Committee of the institution and petitioner has absented from the institution without any sanction of leave and without any intimation to the college authority. It has also been contended that the integrity of the petitioner is not suitable for giving charge of officiating Principal and view taken by the Committee of Management has been approved by the educational authority , as such no interference is warranted by this court.
During pendency of the writ petition Sri Sarvadev Misra has died on 30.11.2006 and thereafter, Sri. Ramyagya Chaudhari has been appointed as Ad-hoc Principal of the institution and he has moved an impleadment application and application has been allowed and counter affidavit filed has been taken on record. In the counter affidavit stand which has been taken by the Management has been relied when and it has been contended that integrity of petitioner was doubtful , as such it has been resolved not to hand over the charge of principal to him. It has also been contended that conduct of petitioner is unsatisfactory since 1976.
Rejoinder affidavit has been filed and therein statement of fact mentioned in the counter affidavit has been disputed and that of writ petition has been reiterated.
State-respondents have chosen not to file counter affidavit in-spite of repeated opportunity being provided and on 6.10.2006, learned counsel for the respondents were allowed two weeks and no more time to file counter affidavit, but no counter affidavit come forward.
Sri Sanjai Singh, Advocate, learned counsel for the petitioner contended with vehemence that in the present case statutory right of the petitioner to function as Ad-hoc Principal under Section 18 of U.P. Act No. 5 of 1982 has been sought to be defeated by the managing Committee of the institution on account of malafide and on totally unsustainable fictitious ground and D.I.O.S. has also colluded with the managing Committee, as such justice be done to the petitioner and directives be issued for enabling the petitioner to function as ad-hoc Principal of the institution.
Sri. K.K. Chand, learned Standing Counsel, Sri S.D. Shukla, representing respondent no.6 and Sri B.N. Chaturvedi representing the institution on the other hand contended that rightful decision has been taken to supersede the petitioner in the fact and circumstances of the present case and no interference is warranted, keeping in view of the conduct of the petitioner and keeping in view that post of Principal is important post in regard to running of the institution.
After respective arguments have been advanced, undisputed factual position, which is emerging that post of Principal fell vacant on account of attaining the age of superannuation of Ram Nihore on 30.6.2003. The Managing Committee at the said point of time, instead of handing over the charge to petitioner, proceeded to hand over the charge to incumbent Sarvadeo Mishra. D.I.O.S. on 10.7.2003 passed order categorically mentioning therein that handing over the charge to Sarvadev Mishra was totally in contravention of law and further directives were issued that forthwith as per seniority position, charge of officiating principal be handing over to Prasiddha Narain Singh, petitioner. Saradev Mishra had questioned the validity of the said order dated 10.7.2003 before this court and this court on 21.7.2003 in view of the admitted position that petitioner was the senior most lecturer clearly directed that petitioner being senior most lecturer, is entitled to function as officiating Principal of the institution subject to decision of appeal by the Director of Education. Validity of order dated 10.7.2003 was upheld by this court on 21.7.2003. In the meantime in-spite of the fact that validity of the order dated 10.7.2003 has been upheld by this court vide order dated 21.7.2003; order dated 16.7.2003 had been alleged to have been passed by the D.I.O.S, withdrawing the order date 10.7.2003. At the said juncture application was moved by Sarvadeo Misra placing reliance on letter dated 16.7.2003 for recalling of the order passed by this court on 21.7.2003, and this court refused to recall the order dated 21.7.2003 and thus order passed by this court dated 21.7.2003 had attained finality inter-se parties. Joint Director of Education on 21.10.2003, passed order determining petitioner to be senior and left it open to the D.I.O.S. To decide the question of suitability. The managing Committee at no point of time, proceed to comply with the judgment dated 21.7.2003 and at the end, proceeded to place the petitioner under suspension on 23.11.2003. District Inspector of Schools pursuant to the order dated 21.10.2003 passed by the Joint Director of Education, under took the exercise of making ad-hoc arrangement on the post of Principal. District Inspector of Schools thereafter has concluded that petitioner is unsuitable for the post. In the present case order impugned has been perused. The order impugned in question reflects that charge has been levelled against the petitioner that petitioner had been functioning as Class teacher of Class 10th, and had collected students fee of Rs. 1306/- and had not handed over the said amount to Principal and had got signature of Principal on the fee register, and had mentioned that said amount would be deposited subsequent to the same. The said charge, which has been made on the fact of it appears to be frivolous and cooked up charge for the simple reason that this fact has been accepted that by virtue of being class teacher of Class 10th in academic session 2003-2004, petitioner has collected fee of Rs. 1306/- and in lieu of the said amount being deposited with the Principal, the Principal had appended his signature. Once Principal of the institution had appended his signature in lieu of deposit of fee of Rs. 1306/-, by the petitioner, then it was the Principal of the institution, who was to be blamed and not the petitioner. Once amount of fee, has been deposited, which has been realized by the petitioner and Principal has certified the receipt, then merely because Ex. Principal is saying that said amount had not been deposited is unacceptable. Ram Lotan Chaudhary has accepted this fact, that in lieu of receiving such amount, he has appended his signature. He has further proceeded to mention that petitioner had promised to pay the amount in next two days, but said amount was not paid by petitioner, and he deposited the said amount from his own pocket, and till date said amount has not been returned back. The story set up does not inspire confidence, from the point of view of any reasonable and prudent man, as it is unbelievable, that without payment of amount, Principal will give receipt of deposit of amount. Principal has contended that he has deposited the said amount from his own pocket and said amount has not been returned to him. This is purely, at the best, private arrangement in between Ram Lotan Chaudhary and the petitioner and same could not have been made foundation and basis for non suiting the claim of petitioner , as has been done . In paragraph 22 of the writ petition, petitioner has made categorical statement of fact that he had never accepted any guilt. District Inspector of Schools, at no point of time came forward to rebut this specific statement of fact. Immediately, after passing of the order, petitioner represented before Joint Director of education, highlighting the illegalities committed by District Inspector of Schools. In paragraph 24 of writ petition, reference has been given of affidavit of Head Clerk and the Principal who functioned upto 30.6.1999, certifying the work and conduct of petitioner, and also of teaching and no teaching staff of the institution. From the side of respondent, it has been contended, that said affidavits are procured. District Inspector of Schools, has proceeded on the presumption that charges stands proved, and petitioner has to be declared unsuitable , without going into the background of the case, and the gravity of the charges, that had been sought to be levelled, exactly at the point of time, when charge of Principal had to be handed over. At each and every place District Inspector of Schools, has proceeded to mention, that charges have been accepted, whereas petitioner has categorically denied, admission of any charge. Second charge is that petitioner refused to accept the letters send. The charge levelled has to be real valid one and has to be objectively demonstrated, and unwilling management can not be permitted to use the power of supersession, merely at its whims and fancies. Petitioner has categorically mentioned that he never acknowledged the guilt, on said front, and seeing the nature of the charge, it cannot be said to be so grave and serious to take away the right conferred by statute on senior most teacher to function as Principal, Issue had been raised regarding non attending of the institution . Petitioner had given specific reason that in the attendance register, his name was shown below the name of Saradev Mishra, who was junior, on this aspect of the matter, District Inspector of schools, did not confront, the Management, as to why name of senior incumbent was being placed below junior incumbent, and further father of petitioner died on 30.12.2003. However, on this front, District Inspector of Schools, has maintained silence, as to whether said charge has been substantiated or not. Not only this some purported charge of the year 1976, has been taken out from the cupboard, to non suit the claim of petitioner to function as Principal.
In the present case, charges appear to be cooked up charge in the backdrop of the case that this court had given categorical direction that petitioner is entitled to function as officiating Principal of the institution and for not handing over the charge to him, such device has been adopted by the Management of the institution in order to defeat the legitimate right of petitioner to function as officiating principal of the institution. The charges, which have been sought to be levelled on the face of it, are charges manufactured with the sole object to deprive the petitioner of his legitimate right of functioning as Officiating Principal of the institution.
Full Bench judgment in the case of Radha Raizada and others Versus Committee of Management, Vidyawati Darbari Girls Inter College and others (1994)3 UPLBEC 1551 has taken the view in context of provision as contained under Removal of Difficulties Order that rejection of unfit, should not be utilised by the Management to supersede senior most teacher. The charge has to be real and valid one and has to be objectively demonstrated by the Management. An unwilling management is not entitled to supersede senior most teacher by awarding entry in his character roll. There shall be persistent default. Here as already discussed, after order dated 10.7.2003 has been passed in favour of Prashidha Narain Singh in order to evade compliance of the said order, petitioner was initially sought to be placed under suspension, and then on totally flimsy and cooked up charges, petitioner, has been sought to be superseded. Division Bench of this court while construing Section 18 of U.P. Act No. V of 1982 in the case of Surendra Pal Singh Versus Kamlesh Singh and others 2006 (6) ADJ 500 (DB) has taken the view that senior most Lecturer can be by- passed in the most extraordinary circumstances where, say, he is on death bed or he has been suspended and such like. The Rule is not that the senior most Lecturer is ordinarily to be selected as ad-hoc Principal, but the Rules is that only in the most extraordinary circumstances can such senior most Lecturer not be selected as ad-hoc Principal. Relevant extract of aforementioned judgment is extracted below:-
"In view of Section 18 of the U.P. Secondary Eduction Services Selection Board Act, 1982, the senior most Lecturer is compulsorily to be selected as as hoc Principal. The said Section is set out below:
"18. Adhoc Principals or Headmasters-(1) Where the Management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the Management shall fill such vacancy on purely adhoc 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 the Management fails to promote the senior-most 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 the Headmaster, as the case may be, from the date he joins such post in 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 the Headmaster as the case may be, due to any act or omission on the part of the Management, such teacher may submits his joining report to the Inspector and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.
(4)Every appointment of an adhoc Principal or Headmaster under sub-section (1) or sub-section (2) shall cease to have effect from the date when the candidate recommended by the Board joins the post"
(2)The senior most Lecturers can be by-passed only in the most extraordinary circumstances where, say, he is on the death bed or he has been suspended and such like. The rules is not that the senior most Lecturer is ordinarily to be selected as adhoc Principal, but the Rule is that only in the most extraordinary circumstances can such senior most Lecturer not be selected as adhoc Principal.
(3)To the extent required by the above statement, we respectfully disapprove of the dicta in the case of Dr. Vijay Laxmi Agarwal Vs. Vice Chancellor, Mahatma Jyothiba Phoole Rohilkhand University, Bareilly and other , 2003 (1) ESC 614 (All).
(4)On this basis, the order under appeal dated 19.7.2006 has to be, and is hereby set aside; the writ petition of the respondent is dismissed.
(5)The appeal is allowed"
Mandate of Section 18 of U.P. Act No. 5 of 1982 is clear and categorical that post of Principal in the event of having fallen vacant has to be offered to Senior Most Lecturer in respect of vacancy in the post of the Principal and where the Management fails to promote the senior most teacher under sub-section (1) the Inspector himself has been vested with the authority to issue the order of promotion. In the present case D.I.O.S. has totally transgressed and over stepped its jurisdiction in proceeding to non suit the claim of petitioner by accepting the version set up by Management as gospel truth without going into background of the case under which charges have been stated against the petitioner. Seeing the nature of charges and the point of time when said charges have been raised is clearly speaking for itself that the said power has been colourably exercised only to defeat the legitimate right of petitioner to function as officiating Principal of the institution. The charges against the petitioner are not at all valid and real one and. This is a glaring case wherein management ignoring the mandate of order dated 21.7.2003 has tried to supersede senior on false and cooked up charges.
Consequently, order passed by the D.I.O.S.,Basti dated 24.1.2004 superceding the petitioner and subsequent order of attestation of signature of respondent no.6 as officiating Principal is hereby quashed. Respondents are directed to ensure issuance of appointment letter in favour of petitioner as officiating Principal within ten days from the date of production of certified copy of this order.
With these observations, writ petition are allowed.
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