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Allahabad High Court · body

2008 DIGILAW 1536 (ALL)

UDAI RAJ SINGH v. STATE OF UTTAR PRADESH

2008-08-06

RAJES KUMAR

body2008
JUDGMENT Hon’ble Rajes Kumar, J.—By means of present writ petition, petitioner is seeking the following reliefs : (a) to issue a writ, order or direction in the nature of certiorari quashing the orders dated 27.6.2008 passed by the District Inspector of Schools, Mainpuri and 16-6-2008 passed by the committee of management of the institution/Chairman Zila Panchayat, Mainpuri (Annexure-14 and 13 respectively to the writ petition). (b) to issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the functioning of the petitioner as adhoc principal of Chaudhari Suraj Singh Zila Panchayat Inter College, Jagir, District Mainpuri. (c) to issue any suitable order or direction as this Hon’ble Court may deem fit and proper under the circumstances of the case. (d) to award cost of the petition in favour of the petitioner. 2. Brief facts giving rise to the present writ petition are as follows : Petitioner is the Lecturer in Chaudhary Suraj Singh Zila Panchayat Inter College, Jagir, Mainpuri (hereinafter referred to as “Institution”) recognised under the provisions of U.P. Intermediate Education Act, 1921. The Institution is managed by Zila Panchayat, Mainpuri. The Chairman of Zila Parishad, Mainpuri is the Manager of the committee of management. The Institution receives grant-in-aid from the State Government and the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salary of Teachers and other Employees) Act, 1971 are applicable to it. Petitioner was initially appointed as Lecturer in Civics and Geography in a substantive vacancy on 19.7.1978. He joined the Institution on 22.7.1978 and after completion of probation period of one year, petitioner was confirmed as Lecturer. 3. There are two Institutions in district Mainpuri, namely, Chaudhary Suraj Singh Zila Panchayat Inter College, Jagir, Mainpuri and Sri Rajendra Singh Zila Panchayat Uchchtar Madhyamik Vidyalaya, Nava Teda, Mainpuri. A combined seniority list of the head of the institution and another combined seniority list of teachers in accordance to Regulation 3-A of Chapter-II of U.P. Intermediate Education Act, 1921 were prepared. Petitioner claims to be senior most Lecturer in the seniority list of the Lecturers of the two institutions and legally entitled to function as adhoc Principal of the institution, after the retirement of the permanent Principal on 21.8.1996. It appears that a dispute arose relating to the seniority of the petitioner vis-a-vis, Kunwar Pal Singh. Petitioner claims to be senior most Lecturer in the seniority list of the Lecturers of the two institutions and legally entitled to function as adhoc Principal of the institution, after the retirement of the permanent Principal on 21.8.1996. It appears that a dispute arose relating to the seniority of the petitioner vis-a-vis, Kunwar Pal Singh. In compliance of the order dated 18.4.2001 passed by this Court in Writ Petition No. 10996 of 2001, Kunwar Pal Singh v. Director of Education (Secondary) and others, petitioner is held to be senior to Kunwar Pal Singh. Being senior most Lecturer in the institution, signature of the petitioner as adhoc Principal has also been attested by District Inspector of Schools vide order dated 15.1.2003. 4. The vacancy for the post of Principal were advertised by U.P. Secondary Education Services Selection Board, Allahabad (hereinafter referred to as “Selection Board”) vide advertisement No. 1 of 2002, which was published in daily news paper “Dainik Jagaran” whereby the vacancy had been advertised for making regular selection on the post of Principal of large number of educational institutions including the present institution. The interview for the post of Principal was held on 16.1.2003 in the campus of Secondary Education Services Selection Board, Allahabad. The petitioner being senior most Lecturer and officiating Principal of the institution was legally entitled to be called for the interview for the post of Principal before the Board in accordance to Rule 12 (6) of U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as “Rules”). It appears that the committee of management did not forward the name of the petitioner to the Board. When the petitioner came to know that his name has not been forwarded for the interview he made representation on 20.1.2003 before the Selection Board stating therein that the petitioner had been illegally deprived of his statutory right for appearing before the Selection Committee for the post of Principal of the institution. Petitioner also made a request to cancel the selection on the post of Principal in pursuance of the advertisement dated 16.1.2003. When the representation of the petitioner has not been considered, petitioner filed Writ Petition No. 9061 of 2003 before this Court. Petitioner also made a request to cancel the selection on the post of Principal in pursuance of the advertisement dated 16.1.2003. When the representation of the petitioner has not been considered, petitioner filed Writ Petition No. 9061 of 2003 before this Court. This Court vide order dated 4.3.2003 finally disposed of the writ petition with the direction to the Selection Board to decide the representation of the petitioner dated 20.1.2003 in accordance to the law preferably within a period of fifteen days from the date of filing the certified copy of the order. Petitioner claimed that the certified copy of the order dated 4.3.2003 alongwith the copy of the representation was served upon the Selection Board on 12.3.2003. The said representation claims to be pending disposal till today. 5. The list of panel of the selected candidates for the post of Principal of different institutions were declared by the respondent No. 2 on 4.6.2003, in which the name of the institution find place at serial No. 35 and the name of the respondent No. 6 has been shown at serial No. 1 in the panel for the post of the Principal of the institution. Being aggrieved by the aforesaid selection, petitioner filed Writ Petition No. 26080 of 2003, in which interim order dated 20.6.2003 was passed staying the implementation of the selection of the respondent No. 6 on the post of Principal of the institution. In compliance of the interim order dated 20.6.2003 passed by this Court, order dated 24.6.2003 was passed by the respondent No. 2 directing the District Inspector of Schools, Mainpuri not to take any steps for the implementation of the selection of the respondent No. 6 in pursuance of the selected list dated 4.6.2003. District Inspector of Schools, Mainpuri vide order dated 28.6.2003 permitted the petitioner to continue as adhoc Principal of the institution. After exchange of counter and rejoinder affidavits, Writ Petition No. 26080 of 2003 was finally disposed of on 20.1.2004. This Court held as follows : “By means of the present writ petition filed under Article 226 of the Constitution of India the petitioner has challenged the advertisement No. 1 of 2002 published by the U.P. Secondary Education Services Selection Board, Allahabad for making selection on the post of Principal in Chaudhary Suraj Singh Zila Panchayat Inter College, Jagir, Mainpuri and selection made pursuant thereto. This Court has already set aside the advertisement and selection made pursuant thereto in Civil Misc. Writ Petition No. 13122 of 2002, Nathu Lal Verma v. State of U.P. and others, decided on 16.10.2003. However, the selected candidate Suraj Pal Singh respondent No. 5 has filed Special Appeal before the Hon’ble Supreme Court has directed to maintain status quo in the matter of the employment of the petitioner as obtaining on that date. The writ petition is disposed of with the direction to the District Inspector of Schools, to ensure compliance of the order dated 14.1.2004 passed by the Hon’ble Supreme Court and to permit the persons who was working on 14.1.2004 as Principal in the said College. Shri Praveen Kumar has put in appearance for the U.P. Secondary Education Services Selection Board, Allahabad and Sri A.K. Yadav has put in appearance for opposite party No. 4.” 6. Respondent No. 6 filed Special Leave Petition No. 1419 of 2004 against the order dated 16.10.2003 passed in Writ Petition No. 11322 of 2002, which has been relied upon in the judgment dated 20.1.2004. In the aforesaid Special Leave Petition, interim order of status quo was passed by the Apex Court. The aforesaid writ petition has been finally decided alongwith other writ petitions on 16.5.2008 and the selection for the post of Principal/Head Master of the aided/recognised institution by the Selection Board have been upheld. In this way, the selection of the respondent No. 6 has been upheld. 7. Learned Counsel for the petitioner submitted that the representation of the petitioner dated 20.1.2003 is still pending before the Selection Board, in which he has claimed his statutory rights for being called in the interview being senior most Lecturer in accordance to the Rule 12 (6) of the Rules. He submitted that the petitioner being the senior most Lecturer was to be called for the interview for the selection of the Principal while the same has not been done. Therefore, the selection of the respondent No. 6 of the institution of the petitioner is wholly illegal. 8. Sri R.K. Ojha, learned Counsel appearing on behalf of respondent No. 6 stated that in Writ Petition No. 26080 of 2003, the petitioner has raised the same grounds, which the petitioner are raising in the present writ petition. Therefore, the selection of the respondent No. 6 of the institution of the petitioner is wholly illegal. 8. Sri R.K. Ojha, learned Counsel appearing on behalf of respondent No. 6 stated that in Writ Petition No. 26080 of 2003, the petitioner has raised the same grounds, which the petitioner are raising in the present writ petition. From the perusal of the record of Writ Petition No. 26080 of 2003 reveals that the petitioner has raised such pleas but has not raised at the time of final hearing and, therefore, it is not open to the petitioner to raise the same issues in the present writ petition. He further submitted that the appointment of the respondent No. 6 has been upheld by the Apex Court and, therefore, it is not open to the petitioner to block the way of the respondent No. 6 to take the charge of the Principal of the institution. In support of the contention, he relied upon the order dated 30.7.2008 passed in Special Appeal No. 66 of 2008, Anil Kumar Tripathi v. State of U.P. in a similar circumstances. 9. Having heard learned Counsel for the parties, I do not find any merit in the writ petition. Learned Counsel for the petitioner as well as respondent agree that in Writ Petition No. 26080 of 2003 the petitioner has raised the similar issues as raised in the present writ petition, namely, challenging the appointment of respondent No. 6 on the ground that the petitioner being the senior most Lecturer should be called for the interview in accordance to Rule 12 (6) of the Rules and the statutory right of the petitioner has been violated. It appears from the perusal of the judgment and order dated 20.1.2004 passed in Writ Petition No. 26080 of 2003 that at the time of final hearing, the petitioner has not argued such issues. Therefore, it is not open to the petitioner to raise the same issues in the present writ petition. The appointment of the respondent No. 6 as Principal made by the Selection Board, has been upheld by the Apex Court. Therefore, the issue with regard to the legality of the selection of the respondent No. 6 is now closed. 10. In the case of Mohd. The appointment of the respondent No. 6 as Principal made by the Selection Board, has been upheld by the Apex Court. Therefore, the issue with regard to the legality of the selection of the respondent No. 6 is now closed. 10. In the case of Mohd. Akram Ansari v. Chief Election Officer and others, 2008 AIR SCW 416, Apex Court held that the point not mentioned in the judgment of High Court, the presumption is that said point was not pressed before the High Court and it was given up, thus, cannot be permitted to be raised in the appeal. 11. In view of the above, writ petition stand dismissed. ————