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2005 DIGILAW 329 (ALL)

Sri Shyam Sunder Shukla, Principal B. R. Inter Collage v. State of U. P. through Secretary of Education

2005-02-23

ARUN TANDON

body2005
ARUN TANDON, J. ( 1 ) HEARD Sri Vivek Kumar Birla, learned counsel for the petitioner, Sri Ravi Pratap, learned counsel for the respondent No. 4, Sri Anil Kumar Misra, learned counsel for the respondent No. 5, (who does not propose to file any counter affidavit), and learned Standing Counsel for the respondent Nos. 1 to 3. ( 2 ) BHAVANI Prasad Ram Deo Prasad Intermediate College, Harriaya, District Basti (hereinafter referred to as the college) is an institution recognized under the provisions of U. P. Intermediate education Act. The provisions of U. P. High School and Irtermediate College (Payment of salaries of Teachers and Other Employees) Act, 1971 and U. P. Secondary Education Services selection Board, 1982 are fully applicable to the teachers and other employees of the college. ( 3 ) THERE was a dispute between the petitioner, Sri Shyam Sunder Shukla and respondent No. 4, sri Veer Bahadur Singh with regard to the inter se seniority in the Lecturer Grade. The said dispute was subject matter of Original Suit No. 325 of 1981. The Munsif, Basti by means of the judgment and order dated 31 March, 1983 held the petitioner to be senior to Sri Veer Bahadur singh and dismissed the suit as filed by Veer Bahadur Singh accordingly. ( 4 ) FEELING aggrieved by the aforesaid judgment and order of the trial court dated 31st March, 1983, the respondent No. 4, Sri Veer Bahadur Singh preferred Civil Appeal No. 203 of 1983. The appeal so preferred by the respondent No. 4 was also dismissed by the first appellate court vide judgment and order dated 18th November, 1985. Against the judgment and order of the first appellate court, the respondent No. 4, Sri Veer Bahadur Singh filed Second Appeal No. 1769 of 1988. ( 5 ) DURING the pendency of the said second appeal the permanent principal of the college, namely, sri Ram Sahai Gupta became due to retire on 30th June, 2001. The petitioner on the basis of seniority as determined by the trial court as well as by the first appellate court set up a claim for being appointed as ad hoc principal so long as candidate recommended by the Commission did not join against the vacancy, which was to be caused on 30th June, 2001 on the post of principal of the college. The petitioner also filed Civil Misc. The petitioner also filed Civil Misc. Writ Petition No. 22675 of 2001. In the aforesaid writ petition on 18th June, 2001 following orders was passed by this Court: "in the aforesaid facts and circumstances it is directed that on the retirement of respondent number five, the charge of the principal shall be given to the senior most teacher of the institution, until the regularly selected candidate from the commission joins the post" ( 6 ) IN pursuance of the aforesaid order of this Court the petitioner was appointed as officiating principal of the college on the basis of his having being declared as senior in the suit proceedings referred to above. The petitioner continued to function on the said post in the college. ( 7 ) ON 3th May, 2002, the Secondary Education Services Selection Board, Allahabad (hereinafter referred to as the commission) published a panel of selected candidates, entitled to be appointed as principals of various intermediate colleges in the state of Uttar Pradesh. The select panel so declared including the advertisement in pursuance whereof the select panel was declared were subject matter of challenge before this Court in Civil Misc. Writ Petition No. 12017 of 2002. The said writ petition was finally decided by the Division Bench of this Court vide judgment and order dated 16th October, 2003 and the advertisements as well as the select penal notified by the commission were declared illegal. ( 8 ) FEELING aggrieved by the aforesaid judgment and order of the Division Bench of this Court dated 16th October, 2003, the U. P. Secondary Education Selection Board filed Special Leave petition No. 21135 of 2003 before the Honble Supreme Court. In the special leave petition so filed, the Honble Supreme Court passed an order dated 12th November, 2003, whereby the parties were directed to maintained status quo. The order dated 12th November, 2003 reads as follows: "taken on board. Permission to file SLPS granted. Application for exemption from filing O. T. S. are allowed. Issue notice on the special leave petition as also on the prayer for interim relief. In the mean time, status quo as on today. Tag with S. L. P. (C ). . . . . . Permission to file SLPS granted. Application for exemption from filing O. T. S. are allowed. Issue notice on the special leave petition as also on the prayer for interim relief. In the mean time, status quo as on today. Tag with S. L. P. (C ). . . . . . CC No. 9215 of 2003" ( 9 ) ON 11th August, 2004 the Second Appeal No. 1769 of 1988 filed by the respondent No. 4, Sri veer Bahadur Singh was dismissed by learned Single Judge of this Court. As a result whereof the inter se seniority between the petitioner and the respondent No. 4, Sri Veer Bahadur Singh stood affirmed. Against the judgment and order passed by the learned single judge of this Court dated 11th August, 2004 in the second appeal so filed, the respondent No. 4, Sri Veer Bahadur singh filed Special Leave Petition before the Honble Supreme Court. The Special Leave Petition so filed by the respondent No. 4, Sri Veer Bahadur Singh was dismissed as withdrawn on 11th august, 2004. As a consequent to the said, on 25th August, 2004, the signatures of the petitioner were attested as ad hoc principal of the college on the basis of his being senior to Sri V. B. Singh. Having lost the battle upto the Honble Supreme Court, as far as the dispute of inter se seniority between the petitioner and the respondent No. 4, Sri Veer Bahadur Singh is concerned, Sri Veer bahadur Singh filed Civil Misc. Writ Petition No. No. 39000 of 2004 challenging the order of the District Inspector of Schools dated 11th August, 2004 attesting the signatures of the petitioner as ad hoc principal of the college, wherein no interim order was granted (the said writ petition was ultimately dismissed as withdrawn on 1st November, 2004 ). Having failed to obtain an interim order from this Court, the respondent No. 4, Sri Veer Bahadur Singh approached the joint Education Director (Intermediate), Basti Region, Basti, respondent No. 2, by way of a representation. Having failed to obtain an interim order from this Court, the respondent No. 4, Sri Veer Bahadur Singh approached the joint Education Director (Intermediate), Basti Region, Basti, respondent No. 2, by way of a representation. The Joint Education Director (Intermediate), Basti Region, Basti, respondent No. 2, vide order dated 6th January, 2005 required the District Inspector of Schools to hand over the charge of the post of officiating ad hoc principal to the respondent No. 4, Sri Veer Bahadur singh only on the basis of the interim order granted by the Honble Supreme Court in Special leave Petition No. 21135 of 2003 filed by the commission against the judgment and order of the division Bench of this Court dated 16th October, 2003, whereby the advertisements and the selection, by direct recruitment on the post of Principal of various intermediate colleges in the state of Uttar Pradesh were quashed. On the basis of order dated 6th January; 2005 passed by the joint Education Director (Intermediate), Basti Region, Basti, respondent No. 2, the District inspector of Schools, Basti passed an order dated 12th January, 2004 suspending his earlier order dated 25th August, 2005 attesting the signatures of the petitioner and provided for handing over of the charge of officiating principal of the college to the respondent No. 4, Sri Veer Bahadur singh. Against the aforesaid orders of the Joint Education Director (Intermediate), Basti Region, basti, respondent No. 2 as well as of the District Inspector of Schools, Basti, the petitioner has approached this Court by means of the present writ petition. ( 10 ) ON behalf of the petitioner it is contended that the order passed by the Joint Education director (Intermediate), Basti Region, Basti, respondent No. 2 is manifestly illegal on the following grounds: (a) The said order of the Joint Education Director (Intermediate), Basti Region, Basti, respondent no. 2 has been passed without notice and opportunity of hearing to the petitioner. (b) The order of Honble Supreme Court directing status quo passed in Special Leave Petition filed by the Selection Board against the judgment and order of the Division Bench of this Court, whereby the advertisements and selection made by the commission on direct recruitment have been quashed, cannot be read in a manner, so as to unsettle the settled position with regard to the inter se seniority between the petitioner and respondent No. 4, Sri Veer Bahadur Singh. (c) The dispute in Special Leave Petition filed by the Selection Board had absolutely no concerned with ad hoc appointments on the post of principal till regularly selected candidate from the commission joins the post nor the petitioner and respondent No. 4 are parties to the same. ( 11 ) IT is, therefore, contended that the order passed by the Joint Education Director (Intermediate), Basti Region, Basti, respondent No. 2 is unsustainable in the eyes of law and is liable to be set aside. ( 12 ) ON behalf of the respondents it is contended that the order passed by the Joint Education director (Intermediate), Basti Region, Basti, respondent No. 2 is inconformity with the order of status quo passed by the Honble Supreme Court with reference to the relevant date on which the respondent No. 4, Sri Veer Bahadur Singh was actually working as ad hoc principal and therefore the said order of the Joint Education Director (Intermediate), Basti Region, Basti, respondent No. 2 does not call for interference under Article 226 of the Constitution of India. ( 13 ) I have heard learned counsel for the parties and have gone through the records of the present writ petition. ( 14 ) FROM the facts as have been noticed hereinabove, it is no more in dispute that the petitioner has been declared senior to respondent No. 4 in litigation which has been decided into this Court and Honble Supreme Court (Although the respondent No. 4, Sri Veer Bahadur Singh claims that a review application is pending before this Court in Second Appeal ). ( 15 ) SO far as the ad hoc appointment on the post of principal till regularly selected candidate is appointed is concerned; suffice it to point out that Section as amended by the Uttar Pradesh secondary Education Services Selection Board (Amendment) Act, 2001, provides as follows: "18. Ad hoc Principals or Headmasters. (1) Where the Management has notified a vacancy to the Baord 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 ad hoc basis by promoting the senior-most teacher, - (a) in the lecturers grade in respect of a vacancy in the post of the Principal. (b) In the trained graduates 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. " ( 16 ) UNDER the said statutory rules only senior most teacher is entitled to be appointed as ad hoc principal till regularly selected candidate from the commission joins the post. The seniority of the petitioner over respondent No. 4, Sri Veer Bahadur Singh is no more in dispute. Therefore the petitioner alone is entitled to be appointed as ad hoc principal. ( 17 ) THIS Court cannot lose sight of the fact that the interim order passed on 12th November, 2003 in S. L. P. filed by the Selection Board against the judgment and order of the Division Bench of this Court quashing the advertisements and select penal of the commission for the post of principal by direct recruitments does not relevance, so far as the ad hoc appointment on the post of principal is concerned, and such order or the status quo passed by the Honble Supreme Court in the aforesaid proceedings, which are pending before the Honble Supreme Court cannot be in any way said to be guiding factor for determining the working on the post of ad hoc principal of recognized intermediate college. ( 18 ) IN the circumstances of the case this Court has no hesitation to hold that the respondent No. 4, Sri Veer Bahadur Singh cannot derive any benefit from the order of the Honble Supreme court by which it has been directed that the status quo be maintained, specifically in view of the fact that the controversy which is engaging the attention of the Honble Supreme Court is confined to the issue as to whether the direct recruitment made by the commission including the advertisements are legal or not. In the opinion of the Court the order of the Honble Supreme court has to be read in a manner so as to provide that the arrangement, which was continuing in the respective colleges prior to the passing of the order of status quo by the Honble Supreme court would continue, namely, if an adhoc principal was working, the adhoc arrangement will remain in operation however, if the candidate recommended by the commission by direct recruitment has joined, he shell not be disturbed. Thus, the order of status quo passed by the honble Supreme Court has to be read as a direction for maintaining the position with regard to the continuance of the arrangement which was effective qua the post of principal, till such time as the said dispute is not resolved by the Honble Supreme Court. In such circumstances the order of Honble supreme court cannot be relied upon the respondent No. 4, Sri Veer Bahadur singh for seeking appointment on the post of ad hoc principal even after he has declared junior to the petitioner. ( 19 ) IN such circumstance the writ petition is allowed and the order passed by the Joint Education director (Intermediate), Basti Region, Basti dated 6th January and the order dated 12th January, 2005 passed by the District Inspector of Schools are hereby quashed. . .