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RAJ PAL SINGH versus THE D.I.O.S., JAUNPUR & OTHERS

High Court of Judicature at Allahabad

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Raj Pal Singh v. The D.I.O.S., Jaunpur & Others - WRIT - A No. 14984 of 1995 [2004] RD-AH 261 (21 May 2004)

 

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

Reserved

Civil Misc. Writ Petition No.14984 of 1995

Rajpal Singh v. District Inspector of Schools, Jaunpur

and others

Hon'ble R.K.Agrawal, J.

By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner, Raj Pal Singh, seeks a writ, order or direction in the nature of certiorari quashing the order dated 13.7.1994 passed by the District Inspector of Schools, Jaunpur, respondent no.1, whereby the signature of Surendra Nath Singh, respondent no.4, has been attested as Principal of Krishak Inter College, Thana Gaddi, District Jaunpur and other consequential reliefs.

Briefly stated, the facts giving rise to the present writ petition are as follows:-

In the district of Jaunpur, there is an Intermediate College in the name of Krishak Inter College (hereinafter referred to as "the College") situate at Thana Gaddi. It is a recognised institution and receives grant-in-aid from the State Government. It is governed by the provisions of the U.P. Intermediate Education Act, 1921 and the regulations framed thereunder as also the U.P.Secondary Education Services Selection Board Act, 1982  and the rules framed thereunder. According to the petitioner, he was initially appointed as Assistant Teacher in the L.T. grade on 16th February 1972 in the College. He was promoted as a Lecturer in Hindi on 1st March 1978 whereas Surendra Nath Singh, respondent no.4, was directly appointed as Lecturer in Sanskrit on 10th March 1980. Sri Nityanand Singh, the Principal of the College, retired on 30th June 1994. The Committee of Management, for some reason, did not want the petitioner to be appointed as ad hoc Principal and vide resolution dated 29th June 1994 resolved to appoint the respondent no.4 as ad hoc Principal. The District Inspector of Schools accepted the resolution vide order dated 13th July 1994 and attested the signatures of the respondent no.4 as ad hoc Principal of the College. The order dated 13th July 1994 is under challenge in the present writ petition.

I have heard Sri B.P.Singh, learned counsel, assisted by Sri Umesh Vats, on behalf of the petitioner and Sri D.S.M.Tripathi, the learned counsel appearing for the respondent no.4.

The learned counsel for the petitioner submitted that it is not in dispute that the petitioner is a seniormost teacher/Lecturer in the College and, therefore, on the retirement of the Principal of the College, he ought to have been appointed as the officiating/ad hoc Principal. According to him, the action of the Committee of Management in not appointing the petitioner as officiating/ad hoc Principal of the College, is wholly illegal, arbitrary and contrary to the principles laid down by the Full Bench of this Court in the case of Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and another, 1994 (3) UPLBEC 1551.

Sri D.S.M.Tripathi, the learned counsel appearing for the respondent no.4, however, submitted that the Committee of Management had issued a notice on 2nd June 1994 calling upon the petitioner to show cause as to why he should not be considered for appointment as officiating/ad hoc Principal in the College and thereafter a resolution dated 29th June 1994 has been passed recommending the name of the respondent no.4 on the post of the officiating/ad hoc Principal in the College. Thus, the principle laid down by the Full Bench of this Court in Radha Raizada has been fully complied with and there should not be any grievance to the petitioner on this score. He further submitted that the petitioner has not challenged the resolution dated 29th June 1994 passed by the Committee of Management and, therefore, he is not entitled to any relief.  He further submitted that the petitioner is disputing the ad hoc promotion of the respondent no.4 on the post of the ad hoc Principal and, therefore, he has an alternative statutory remedy to approach the Deputy Director of Education, at present Joint Director of Education, Varanasi, as provided in paragraph 7 of the U.P.Secondary Education Services Commission (Removal of Difficulties) (First) Order, 1981, as amended by paragraph 3 of the U.P.Secondary Education Services Commission (Removal of Difficulties) (Fourth) Order, 1982 and, therefore, the writ petition is not maintainable. In support thereof, he relied upon the following decisions :-

(i) Smt. Savitri Srivastava v. Deputy Director of Education, Agra Region, Agra and others, 1985 UPLBEC 51;

(ii) Indra Singh Verma v. District Inspector of Schools, Allahabad and others, 1989 (1) UPLBEC 16;

(iii) Smt. Daya Gupta v. Regional Inspectress of Girls School, Meerut and others, 1993(3) UPLBEC 1857.

According to him, seniority is not the sole criteria for promotion on the pot of the Principal on ad hoc basis. The suitability is also to be considered by the Committee of Management and while considering the suitability, the length of service, achievement in service, academic qualification and integrity are some of the relevant factors to be considered by the Committee of Management as held by this Court in the case of Smt. Basanti Gaur v. Regional Inspectress of Girls School, VII Region, Gorakhpur and others, 1987 (1) UPLBEC 121. According to him, the Committee of Management had considered the suitability of the petitioner as well as the respondent no.4 and had found the respondent no.4 to be more suitable and, therefore, the District Inspector of Schools acting on the basis of the resolution passed by the Committee of Management, had attested the signatures of the respondent no.4, which cannot be said to suffer from any legal infirmity.

Having heard the learned counsel for the parties, I find that it is not in dispute that the petitioner is the seniormost Lecturer in the College. In the resolution passed on 29th June 1994, the Committee of Management had considered the suitability of the petitioner as well as the respondent no.4. However, it had not referred to any notice dated 2nd June 1994 as alleged by the respondent no.4, whereby the Committee of Management had called upon the petitioner to show cause as to why his claim should not be considered on the post of officiating/ad hoc Principal in the College. Thus, it does appear that no such notice dated 2nd June 1994 was given to the petitioner. The Full Bench decision of this Court in the case of Radha Raizada (supra) has approved the guidelines laid down by the learned Single Judge in the case of Tribhuwan Mishra v. District Inspector of Schools, 1992 (1) UPLBEC 716, which provides that if the management wishes to supercede the seniormost teacher who is qualified to be appointed as Principal, it can only do so if (1) there are grave charges against him which are so serious that it will be wholly detrimental to the interests of the institution to appoint him ad hoc Principal or (2) he suffers from such a serious physical disability that he cannot properly perform the function of Principal. In either case the senior most teacher must be given a show cause notice by the management stating the charges against him (or the physical disability) and stating that it proposed to supersede him. The hearing to be given by the management need not be a personal hearing, but copies of any material sought to be relied upon (whether contained in the service book or elsewhere) must be supplied in advance so as to enable teacher to give his reply explanation. After considering the teacher's reply the Management can supersede him but only by a reasoned order, and such reasons can be scrutinised by the High Court under Article 226 of the Constitution. If the second seniormost teacher is also sought to be superseded, then the same procedure must be followed in respect of him also, and so on.

Applying the principles laid down by the Full Bench in Radha Raizada case (supra) to the facts of the present case, I find that the vacancy was to occur on 30th June 1994. The process of giving notice ought to have started two months before, i.e., on or before 30th April 1994. The Committee of Management, according to own showing of the respondent no.4, had given notice on 2nd June 1994 even though this fact has been seriously disputed by the petitioner and the Court has found that the notice had not been given as it has not been referred to in the resolution at all. Thus, the appointment of the respondent no.4 as officiating/ad hoc Principal of the College is in utter violation of the principles laid down by the Full bench of this Court in the case of Radha Raizada (supra) and, therefore, it cannot be accepted. The attestation of signature of the respondent no.4 as ad hoc Principal, vide order dated 13th July 1994, being contrary to law, is liable to be set aside.

So far as the question that the petitioner has not challenged the resolution dated 29th June 1994 passed by the Committee of Management whereby the Committee of Management has proposed to appoint the respondent no.4 as officiating/ad hoc Principal in the College is concerned, it may be mentioned here that the resolution passed by Committee of Management on 29th June 1994 is only a proposal and it does not create any vested right so long as it is not approved or accepted by the District Inspector of Schools. The petitioner having challenged the order dated 13th July 1994 attesting the signature of the respondent no.4, it was not necessary for the petitioner to specifically challenge the resolution dated 29th June 1994 passed by the Committee of Management.

So far as the question regarding availability of alternative remedy is concerned, it may be mentioned here that that the writ petition was entertained by this Court on 26th May 1995 and, vide order dated 18th October 1995, this Court had issued notice to the respondent nos.2 and 4 to show cause as to why this petition may not be allowed. Counter and rejoinder affidavits have already been exchanged between the parties and relegating the petitioner, at this stage, to avail the alternative remedy would not be, in the circumstances, justified. The Hon'ble Supreme Court in the case of Hridya Narain Vs. Income Tax Officer Bareilly, AIR 1971 SC 33, and Dr. Bal Krishna Agarwal Vs. State of Uttar Pradesh and others, J.T. 1995(1) S.C. 471, has laid down that if a writ petition has been admitted and has been kept pending for sufficiently long time, it would not be proper for the Court to relegate the petitioner to alternative remedy.

In the case of Hirdya Narain (supra), the Hon'ble Supreme Court, in para 12 of the judgment, has held as under:

"12. An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision because at the date on which the petition was moved the period prescribed  by Section 33-A of the Act had not expired. We are unable to hold that  because a revision application could have been moved for an order correcting the order of the Income-tax Officer under Section 35, but was not moved, the High Court  would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits."

In the case of Dr. Bal Krishna Agrawal (supra), the Hon'ble Supreme Court, in para 10 of the judgment, has held as under:

"10.   Having regard to the aforesaid facts and circumstances,  we are of the view that the High Court was not right in dismissing the Writ petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act specially when the Writ petition that was filed in 1988 had already been admitted and was pending in the High Court for the past more than  five years. Since the question that is raised involves a pure question of law and even if the matter referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that t his was not a case where the High Court should have no-suited the appellant on the ground of availability of an alternative remedy. "

As the resolution dated 29th June 1994 passed by the Committee of Management has been set aside, the subsequent resolution dated 3rd September 1994 appointing the respondent no.4 as ad hoc Principal also falls in view of the principles laid down by this Court in the case of Sher Ali Khan and others v. Prescribed Authority and others, 1978 ALJ 1189, wherein this Court has held that once the order recalling its earlier final order was set aside and the case remanded, all proceedings taken and everything done in the case in pursuance of that order, automatically fall to the ground. The base having collapsed, the superstructure standing thereon must also go.

In view of the foregoing discussions, the Committee of Management was not justified in appointing the respondent no.4 as officiating/ad hoc Principal. The order dated 13th July 1994 passed by the District Inspector of Schools is hereby set aside. The Committee of Management is directed to reconsider the matter in accordance with law and in the light of the Full Bench decision of this Court in the case of Radha Raizada (supra). The writ petition succeeds and is allowed.

21.5.2004

vkp


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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