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2006 DIGILAW 561 (ALL)

JAG MOHAN SINGH, ETC v. STATE OF UTTAR PRADESH

2006-02-23

TARUN AGARWALA

body2006
JUDGMENT Honble Tarun Agarwala, J.—It transpires that the post of a Principal fell vacant in Bishop Mondol Inter College, Bareilly, which is a minority institution managed by the Christian community and is also recognized and governed by the provisions of the U.P. Intermediate Education Act,1921 and the Regulations framed therein. This institution also receives a grant-in-aid from the State Government and consequently the provisions of U.P. Act No. 28 of 1971 are applicable. 2. On account of the retirement of Sri R.K. Wilkinson, the post of Principal fell vacant in the institution. It is alleged, that the Committee of Management issued an advertisement inviting applications for appointment on the post of Principal. The petitioner applied for the said post and an interview was held by a duly constituted Selection Committee and a panel of three names was recommended showing Sri Cicil Naveen Kumar Charan at Sl.No.1, Sri Jag Mohan Singh at Sl. No. 2 and Sri Ajai Kumar Sinha at Sl.No.3. For the purpose of this judgment Sri Jag Mohan Singh is hereinafter referred to as the petitioner and Sri Ajai Kumar Sinha is referred as a respondent. 3. It is alleged that Cicil Naveen Kumar Charan did not possess the requisite qualifications and, therefore, could not be appointed as a Principal. The petitioner objected and, when no action was taken by the authorities, he filed Writ Petition No. 32011 of 2004, which was disposed of by an order dated 11.8.2004 directing the petitioner to approach the Joint Director of Education who would decide the grievance of the petitioner. 4. In the meanwhile, pursuant to the recommendation given by the Selection Committee, the Management forwarded the papers of Cicil Naveen Kumar Charan for the approval of his appointment. The Joint Director, by an order dated 7.8.2004, approved the appointment of Cicil Naveen Kumar Charan, as the Principal of the institution and, based on this approval, Cicil Naveen Kumar Charan joined as the Principal of the institution. It has also come on record that Cicil Naveen Kumar Charan subsequently submitted his resignation on 25.11.2004 which was accepted by the Management on 28.11.2004 and, a letter to this effect, was sent to the District Inspector of Schools, by the Committee of Management. It has also come on record that Cicil Naveen Kumar Charan subsequently submitted his resignation on 25.11.2004 which was accepted by the Management on 28.11.2004 and, a letter to this effect, was sent to the District Inspector of Schools, by the Committee of Management. It also transpires, that upon the approval being granted by the Joint Director of Education, the petitioner filed a representation which was considered and the Joint Director passed an order dated 4.12.2004 cancelling the appointment of Cicil Naveen Kumar Charan. However, prior to the issuance of this order, Cicil Naveen Kumar Charan had already submitted his resignation which had been accepted by the Committee of Management. 5. At the time when the post of Principal became vacant, the Management gave the charge to Ajai Kumar Sinha, who was a senior most lecturer in the institution, to officiate as the Principal of the institution. He officiated on the post of Principal from 1.7.2003 to 15.8.2004 and, after the resignation of Cicil Naveen Kumar Charan, the Management again directed Sri Sinha to officiate as the Principal. Consequently, from 29.11.2004 till today, he is functioning as the officiating Principal. 6. The petitioner Jag Mohan Singh has filed the present writ petition praying that upon the resignation of Cicil Naveen Kumar Charan, the petitioner being at Sl. No. 2 of the panel, should be given an appointment on the post of the Principal by the Committee of Management. 7. On the other hand, the respondent, Ajai Kumar Sinha, also filed a writ petition praying for the quashing of the selection process, the recruitment and appointment of any outsider on the post of the Principal in the college and further prayed that a mandamus be issued to the Committee of Management not to appoint any outsider on the post of Principal. Sri Sinha, the respondent, contended that the institution is a minority institution and under clause 4(B) of the Scheme of Administration of the institution, the post of a Principal could only be filled by a person who belonged to a Christian community. It was also submitted that the institution, being a minority institution, could choose its own candidate and, further, the post of the Principal was required to be filled by way of promotion. It was also submitted that the institution, being a minority institution, could choose its own candidate and, further, the post of the Principal was required to be filled by way of promotion. The respondent further submitted that there was no provision for the preparation of a panel under Section 16-FF of the Act and, therefore, the constitution of the panel was redundant. In any case, the petitioner was an outsider and, therefore, he could not be considered for the post. 8. The factual position which emerges from the affidavits filed before this Court is, that a vacancy on the post of Principal occurred in a minority institution. Sri Ajai Kumar Sinha was given the charge as an officiating Principal, being the senior most teacher. The Management advertised the post and the Selection Committee recommended the person at Sl.No.1 who joined the post and worked for some months and thereafter submitted his resignation. Jagmohan Singh was placed at Sl. No. 2 of the panel and contends that upon the resignation of the person at Sl. No. 1 he should be appointed as the Principal. On the other hand, Ajai Kumar Sinha, who is the senior most lecturer is officiating as the Principal and submits that there is no provision for making a panel under Section 16-FF and, in any case, the post of Principal could only be filled up by way of promotion and, he being the senior most teacher, has rightly been given the charge of the Principal and should be confirmed on that post. The petitioner being an outsider, cannot be permitted to hold the post of Principal under the Scheme of Administration. 9. Heard Sri V.K. Singh, the learned counsel for the petitioner, the learned Standing Counsel for the District Inspector of Schools, Bareilly and the Joint Director of Education, Bareilly Region, Bareilly, Dr. Daya Shanker for Ajai Kumar Sinha and Dr. S.B. Maurya for the Committee of Management. 9-A. Sri V.K.Singh, the learned counsel for the petitioner Jag Mohan Singh submitted that Cicil Naveen Kumar Charan did not possess the requisite qualifications and therefore, his appointment and the subsequent approval by the Joint Director of Education was void ab initio an his appointment was subsequently, which was subsequently cancelled by the Joint Director of Education by an order dated 4.12.2004 and therefore, the select panel had never been implemented or given effect to. Since the person at Sl. No.1 of the panel list could have never been appointed, consequently, the petitioner being at Sl.No.2, should have been given an appointment on the post of Principal. 10. In support of his submission, the learned counsel for the petitioner placed reliance upon a decision in Kishori Raman Shiksha Samiti and others v. Regional Deputy Director of Education, Agra and others, 1994(1)UPLBEC 248, in which the candidate at Sl.No.1 died within a week from the date of joining, and in that scenario, the appointment by the Management at Sl. No. 2 of the panel list was found to be valid. In my view, the said decision was given in the peculiar facts and circumstances of that case and the Court interpreted the provisions of Section 11(5) of the U.P. Secondary Education Board Act, 1982 holding that the words “otherwise not available” in sub-section (5) of Section 11 of the said Act had a very wide meaning covering all kinds of situation including death which may render a candidate not available to the institution for appointment as a teacher. 11. Further reliance was made in a decision of Sushil Kumar Dwivedi v. Basic Shiksha Adhikari Banda and others, 2003(1)ESC 519 in which it was held, that if the petitioner did not have the requisite experience at the time of his appointment and was not eligible, in that situation, the appointment was void. 12. In Committee of Management Jagdish Saran Rajvansi Kanya Inter College, Meerut and another v. Joint Director of Education, Ist Region, Meerut and others, 2000(1) ESC 645, it was held that the appointment of a teacher on the post of Principal who had attained the age of superannuation was a void appointment and therefore, the only course left for the Commission was to offer an appointment to the candidate mentioned next in the panel. 13. 13. The learned counsel has further relied upon a unreported decision in the matter of Ram Prakash Bharadwaj v. State of U.P. and others, Writ Petition No. 27947 of 2003, decided on 7.1.2005 in which it was held that— ”Thus, by no stretch of imagination, appointment letter could have been issued in favour of Om Prakash Gupta, and issuance of appointment letter was clearly in the teeth of the Division Bench judgment of this Court, U.P. Secondary Education Services Board has clearly erred in the present case by not appearing that the candidate, who was placed at serial No. 1 in the panel, was not entitled to be appointed, then in all eventualities, the candidate who was placed at Sl.No.2 in the panel was entitled to be offered appointment. At no point of time it could be said that panel had been implemented and given effect to, and issuance of appointment letter in favour of Om Prakash Gupta was nothing but an exercise in futility, and Om Prakash Gupta could not have been appointed, and thus, orders impugned dated 18/20.05.2003 are liable to be quashed, and are hereby quashed.” 14. The said judgment was subsequently affirmed by Division Bench by judgment dated 17.2.2005. In Special Appeal No.163 of 2005, holding— ”Issuance of appointment letter in favour of Om Prakash Gupta was not proper utilization of the panel since he had already attained the age of superannuation. The panel being very much alive on the day when appointment letter was issued in favour of Om Prakash Gupta, the person eligible for appointment was the second person in panel i.e. respondent in the appeal.” 15. The learned counsel for the petitioner has further placed reliance upon an unreported decision dated 15.2.2001, passed in Writ Petition No.4227 of 2000, Qamar Uddin v. The District Inspector of Schools, Bareilly and another, in which it was held : "If Hasin Husain was not qualified for being appointed and for any reason his appointment was cancelled, subsequently, (his appointment was cancelled on the ground of having been submitted the forged marksheet), the person whose name stood at Serial No.1 in the waiting list, ought to have been given appointment.” 16. In the present case, the provision of Section 16-FF of the Intermediate Education Act is applicable. There is no provision for making a panel by the Selection Committee. In the present case, the provision of Section 16-FF of the Intermediate Education Act is applicable. There is no provision for making a panel by the Selection Committee. However, a panel was made and the person at Sl.No.1 joined. Consequently, the panel was implemented and given effect to. The judgment cited by the learned counsel for the petitioner, Sri Jag Mohan Singh, are distinguishable because in those cases it was held that the panel had not been implemented nor had been given effect to and that the appointment was void and therefore, the issuance of such an appointment letter was an exercise in futility. In my view, once the candidate at Sl.No.1 joins, the panel comes to an end and the same panel could not be utilized again. 17. In the present case, the panel was utilized and Sri Cicil Naveen Kumar Charan was appointed. His appointment was questioned but before his appointment could be set aside, he submitted his resignation and thereafter Ajai Kumar Sinha was appointed as an Officiating Principal. The question of utilizing the panel, after Ajai Kumar Sinha was appointed as the officiating Principal cannot be made. It is no longer open for the petitioner to contend that the panel should be utilized again after the resignation of the candidate at Sl.No.1. Much water has flown since the joining of the candidate at Sl.No.1. The panel came to an end upon the joining of the candidate at Sl.No.1 of the panel. 18. In my view, the panel stood exhausted the moment Cicil Naveen Kumar was appointed as a Principal. Recently, a Division Bench in Civil Misc. Writ Petition No. 3447 of 2002, Arun Kumar Singh v. State of U.P. and others, decided on 8.7.2005, after considering the entire case law on the subject, held, that the waiting list gets exhausted the moment the candidate joins and even if the candidate submits his resignation, the waiting list could not be invoked or utilized for another appointment. The Division Bench considered the judgment of Kishori Raman Shiksha Samiti (supra) and disapproved the same. It is also relevant to state here, that the State Government has also issued a Government Order dated 23.12.1997 holding that a waiting list could not be utilized again where a candidate from the said list had joined and subsequently resigned. 19. The Division Bench considered the judgment of Kishori Raman Shiksha Samiti (supra) and disapproved the same. It is also relevant to state here, that the State Government has also issued a Government Order dated 23.12.1997 holding that a waiting list could not be utilized again where a candidate from the said list had joined and subsequently resigned. 19. In view of the aforesaid, I am of the opinion, that the petitioner is not entitled for any relief. The panel came to an end upon the appointment of Cicil Naveen Kumar Charan on the post of Principal. Upon his resignation, the panel could not be invoked again for another appointment on the post of Principal. The petitioner being at Sl. No. 2 of the panel list could not be given an appointment. Consequently, the writ petition of Jag Mohan Singh fails and is dismissed. 20. Sri Ajai Kumar Sinha had also filed the writ petition praying for the quashing of the selection process and for the payment of the salary. No interim order was granted at the time of filing of the writ petition. Pursuant to the selection process, Sri Cicil Naveen Kumar Charan was appointed and thereafter he resigned and, upon his resignation, the Management appointed, Ajai Kumar Sinha again as an Officiating Principal. The learned counsel for Ajai Kumar Sinha submitted that the word “officiating” was a misnomer and in fact he had been appointed on a permanent basis and that there could not be any direct recruitment on the post of Principal. No provision has been shown by the learned counsel to fortify his submission, namely that the post of Principal could only be filled up by way of promotion and not by direct recruitment. In my opinion, the post of Principal can only be filled up by direct recruitment since it is a single post. The contention of the learned counsel that Ajai Kumar Sinha was not appointed as an officiating Principal and was appointed as a permanent Principal is also devoid of merit and is without any basis. The record clearly indicates that he was appointed as an Officiating Principal. In my view, the writ petition filed by Ajai Kumar Sinha has become infructuous and is accordingly dismissed as such. The record clearly indicates that he was appointed as an Officiating Principal. In my view, the writ petition filed by Ajai Kumar Sinha has become infructuous and is accordingly dismissed as such. However, Sri Ajai Kumar Sinha is entitled for payment of the salary of a Principal for the period which he has officiated as Principal of the institution. 21. Before parting, it is clear, that Ajai Kumar Sinha is continuing as an Officiating Principal. The Committee of Management is, therefore directed to make all arrangements for making an appointment of a suitable candidate on the post of Principal, in accordance with law, at the earliest. 22. In view of the aforesaid, both the writ petitions are dismissed. There shall be no order as to cost. Petitions Dismissed. ————