Sultan Singh Negi v. Deputy Director Of Education — 1994 DIGILAW 648 (ALL)

JUDGMENT : - Sudhir Narain 1. THE controversy in the present writ petition is as to whether the petitioner should be promoted as ad hoc Principal of Public Inter College, Tilkholi, Pauri Garhwal (hereinafter referred to as the college) or respondent no. 4 should be promoted to the said post. 2. THE facts in brief are that initially the institution was recognised Junior High School and the petitioner was appointed as Head Master of the' said Junior High School on 15- 8-1974 and he worked as such till 30-7-1981 On 317- 1981 the said Junior High School was again raised to the level of High School by order dated 15-9-1981 passed by Deputy Director of Education GarhwaI Region Pauri Certain posts including the post of Principal were created and in the said order it was further directed that the post of Principal shall be filled up by adhoc promotion of the Head Masters of the Junior High School. In compliance with the order dated 15-9-1981 passed by the Deputy Director of Education, the Committee of Management on 20-9-1981 passed a resolution appointing the petitioner on adhoc basis on the post of Principal of the High School and in pursuance: of the said resolution, the Manager of the Committee of Management issued an appointment letter to the petitioner. THE papers were forwarded to the District Inspector of Schools for approval who on 24-9-1981 approved the appointment of the petitioner for six months under the U. P. Secondary Education Services Commission (Removal of Difficulties) Older 1981 (hereinafter referred to as order 1981). THE petitioner joined the post on 22-9-1981 as Principal of the High School. THE said High School was again raised to the level of Inter College on 20-3-1990 and the petitioner was authorised to work as officiating Principal of the Intermediate College. THE Director of Education, V. P. vide order dated 19-11-1991 created one post of Principal and seven extra pasts for the college. The petitioners was claiming ragularisation of the services under the provisions of U. P. Secondary Education Services Commission and Selection Board (Amendment Act 1991) by which the services of the adhoc teachers who were promoted on adhoc basis against a substantive vacancy in accordance with para 2 of the U. P. Secondary Education Services Commission (Removal of Difficulties) Order 1981, and possess the qualification prescribed, were to be regularised. The petitioner made a representation that his services may be regularised but as no orders were passed by the Authorities concerned, he filed writ petition no. 38099 of 1992 for a mandamus commanding the respondents to regularise the petitioner's services with effect from 6-4-1991. 3. RESPONDENT no. 4 was appointed as assistant teacher in L. T. grade on adhoc bads on 1st October 1983 when the institution was only up to the High School. On 6th February 1993 he was promoted to lecturer's grade. The District Inspector of Schools approved his adhoc promotion to lecturer's grade by his order dated 9-2 93 and he started working as lecturer since 11-2-1993. The Committee of Management passed a resolution on 4th March 1993 for promotion of respondent no 4 as officiating Principal. A letter of appointment was issued on 14th May 1993 On 13th May 1993 the Deputy Director of Education, respondent no. 1, paused an order directing the petitioner to hand over the charge of the post of Principal to respondent no. 4. On the basis of the order dated 13th May 1993 passed by respondent no. 2 the Manager of the Committee of Management on 14th May 1993 passed an order directing the petitioner to hand over the charge of the post of Principal to respondent no. 4. The petitioner aggrieved against the said order filed the present writ petition challenging the orders dated 13th May 1993 and 14th May 1993. 4. I have heard Sri B D. Upadhya, counsel for the petitioner and Sri Y. K. Saxena for respondents 3 and 4 and the learned standing counsel for respondents 1 and 2. The promotion to the post of Principal has to be made in accordance with para 4 of the Order 1981 which read as under "4. Adhoc appointment by promotion.-(1) Every vacancy in the post of the Head of an institution may be filled by promotion- (a) in the case of Intermediate College, by the seniormost teacher of the institution in the lecturer's grade ; (b) in the case of a High School raised to the level of Intermediate College, by the Headmaster of such High School ; (c) in the case of a Junior High School raised to the level of a High School, by the Headmaster of such Junior High School. (2) Every vacancy in the post of a teacher in Lecturers grade may be filled by promotion by the senior-most teacher of the institution in the trained graduate (L. T.) grade. (3) Every vacancy in the post of a teacher in the trained graduate (L.T.) grade shall be filled by promotion by the senior most teacher of the institution in the trained Under-graduate (C.T.) grade. (4) Every vacancy in the post of a teacher in the trained under-graduate (C.T.) grade shall be filled by promotion by the seniormost teacher of the institution in the J.T.C. grade or B.T.C. grade. Explanation.-For the purposes of clauses (1) to (4) of this paragraph the expression "Senior-most teacher" means the teacher having longest continuous service in the Lecturer's grade or the trained Graduate (L.T.) g ace or trained under-graduate (C.T.) grade J.T.C. or B.T.C. grade, as the case may be." Para 4 (1) (b) specifically provides in the case of High School raised to the level of an Intermediate College, by the: Headmaster of such High School' The petitioner was admittedly Headmaster of the High School of the institution. 5. THERE are two objections against the petitioner being promoted to the post of Principal of the college. The first objection is that the petitioner was not qualified for being appointed as Principal of the college because he did not possess the post-graduate degree which is a necessary qualification for being promoted to the post of Principal of the college. The petitioner has stated that he had passed MA. (Sociology) in the year 1975. When the petitioner was working as Headmaster of the High School, the Committee of Management on 27-4-1984 forwarded the papers of the petitioner to the Commission for the appointment on the post of Headmaster of the High School and in that requisition the petitioner was shown by the Manager as M.A., B Ed. and in that requisition the petitioner was further shown as senior teacher. A copy of the requisition is annexed as annexure-R.A. 3. A counter affidavit has been filed on behalf of the respondents in which it has been asserted that the petitioner was appointed as Headmaster in the institution in the year 1974 and he had passed M.A. examination, in the year 1975 during his service period without obtaining any permission from the Committee of Management. A counter affidavit has been filed on behalf of the respondents in which it has been asserted that the petitioner was appointed as Headmaster in the institution in the year 1974 and he had passed M.A. examination, in the year 1975 during his service period without obtaining any permission from the Committee of Management. The petitioner had passed M.A. examination in the year 1975 and in the year 1984 the Manager of the institution had himself submitted requisition to the Commission indicating about the qualification of the petitioner as having pasted M.A. examination. THERE was no objection taken by the Committee of Management and there is no justification for the Committee of Management to raise such an objection at the time when the question of adhoc promotion of the petitioner to the post of Principal is being considered. In case the petitioner has passed M.A. examination in the year 1975 and has always shown this qualification in the service record and the Committee of Management was fully aware of it, they are estopped from challenging the qualification of the petitioner. 6. THE second objection is that the petitioner was appointed as adhoc Principal of the High School and he was never made permanent. Para 4 of 1981 Order contemplates promotion of the Headmaster of a High School when he has been substantively appointed on the said post. Firstly, para 4 (1) (b) does not make any distinction between a Headmaster who is working on adhoc basis or a permanent Headmaster. THE promotion to the post of Principal under para 5 has to be made on adhoc basis. Secondly, the petitioner claims regularisation of his appointment under section 33-A (1)-A of U.P. Secondary Education Services Commission and Selection Board (Amendment) Act 1991 (Act no. 26 of 1991). Respondents 1 and 2 did not consider the case of regularisation of the petitioner. Third objection raised on behalf of respondents is that respondent no. 4 is senior to the petitioner and he was entitled to be appointed as ad hoc Principal. Respondent no. 4 was appointed as assistant teacher in L. T. grade. The contention of the petitioner is that he was appointed as assistant teacher in L. T. grade on adhoc basis when the Institution was only upto High School. 4 is senior to the petitioner and he was entitled to be appointed as ad hoc Principal. Respondent no. 4 was appointed as assistant teacher in L. T. grade. The contention of the petitioner is that he was appointed as assistant teacher in L. T. grade on adhoc basis when the Institution was only upto High School. The appointment of the petitioner as Principal of the High School on adhoc basis in the year 1981 was approved by respondent no. 1. The services of respondent no. 4 were regularised in L. T. grade on the basis of Act no. 26 of 1981 while the services of the petitioner were not regularised. In the year 1984 a requisition was sent to the Commission by the Manager for appointment of the petitioner on the post of Headmaster of the High School and in that requisition the petitioner was shown as senior most teacher. At that time, respondent no. 4 and the petitioner both were working in the- same institution. The petitioner being treated as a senior most teacher was promoted as adhoc Principal of High School. Respondent no. 4 had been given the grade of Lecturer by order dated 6th February 1993 while the petitioner was not given the grade of Lecturer. Para 4(1)(b)of 1981 Order clearly indicates that a Headmaster of a High School is entitled to be promoted to the post of Head of the institution. The petitioner was admittedly Headmaster of High School of the institution and was entitled to be promoted as ahoc Principal of the college. 7. LASTLY it was urged on behalf of the respondent that the petitioner was not entitled to be promoted as he did not possess a good record of service and reliance has been placed on Regulation 2 (II) of Chapter II of the Regulation framed under the Intermediate Education Act which provides that where an institution is raised from a High School to an Intermediate college, the post of Principal of such college shall be filed by promotion of the Headmaster of such High School, if he was duly appointed as Headmaster in substantive capacity In accordance with law for the time being in force and possess a good record of service and the minimum qualifications prescribed in that behalf or has been granted exemption from such qualification by the Board. The respondents have not placed any material to show that there was any adverse entry in his character roll., Admittedly, he had been working as Head of the institution since the year 1974. He was appointed as Headmaster of Junior High School on 15-7-1974'. and Head mater, of High School on 20-9-1981 which was duly approved by the District Inspector of Schools by his order dated 24-9-1981. Learned counsel for the respondent urged that certain disciplinary proceedings had been started against the petitioner and there was an order for stopping his increment. Unless the disciplinary proceedings are finalised, it cannot be held that the petitioner is guilty of any charge. The respondents have not placed any material to snow that his service record was bad. In any case, the petitioner has not been deprived of his right of being promoted to the post of Principal on account of the fact that he did not possess a good record of service. 8. LEARNED counsel for the respondent urged that the petitioner had an alternative remedy to make a representation under Regulation 8 of Chapter II of the Regulations framed under the Act against the decision of the Committee of Management before the District Inspector of Schools. In the present case, the District Inspector of Schools had already granted approval of appointment of respondent no. 4 as officiating Principal by order dated 13th May 1993, copy of which has been filed as annexure-7 to the writ petition. In view of the above writ petition no. 18186 of 1993 is allowed and the orders dated 13th May 1993 and 14th May 1993 (annexures 7 and 8 to the writ petition) are hereby quashed. The District Inspector of Schools, respondent no. 2, is directed to decide the claim of the petitioner keeping in view the observations made above, within two months from the date of production of a certified copy of this order. As regards writ petition no. 38079 of 1992, the petitioner is directed to make a representation to respondent no. 2 regarding regularisation of his services. On such representation being filed, respondent no. 2 shall dispose of the same by a reasoned order within one month from the date of making of the representation along with a certified copy of this order. The writ petition no. 38079 of 1992 is accordingly disposed of with the direction given above. 9. 2 regarding regularisation of his services. On such representation being filed, respondent no. 2 shall dispose of the same by a reasoned order within one month from the date of making of the representation along with a certified copy of this order. The writ petition no. 38079 of 1992 is accordingly disposed of with the direction given above. 9. IN the facts and circumstances of the case the parties shall bear their own costs. Petition allowed.