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2012 DIGILAW 696 (ALL)

CHAUHARYA DUBEY v. STATE OF U. P.

2012-03-22

S.P.MEHROTRA, SUNITA AGARWAL

body2012
Sunita Agarwal, J. The present Special Appeal has been filed against the judgment and order dated 22.9.2008 passed by the learned Single Judge dismissing Civil Misc. Writ Petition No. 49796 of 2008 filed by the petitioner-appellant. 2. It appears that the petitioner-appellant was working on the post of Lecturer in Gangapur Inter College, Gangapur, Varanasi ( hereinafter also referred to as "the institution in question"). By the order dated 7.3.2008, Prabandh Sanchalak was appointed in the institution in question. One Dashrath Singh, who was working as the Principal of the institution in question, after attaining the age of superannuation retired from the post of Principal on 30.6.2008. 3. By the order dated 1.7.2008 passed by the Prabandh Sanchalak of the institution in question, the petitioner was appointed as Officiating Principal of the institution in question. It was further observed in the said order dated 1.7.2008 that the pay, allowances, etc., admissible for the said post, would be payable after the consent/approval of the District Inspector of Schools, Varanasi. 4. By the order dated 26.7.2008, the District Inspector of Schools, Varanasi attested the signature of the petitioner- appellant consequent to his appointment as Officiating Principal of the institution in question. It further appears that by the order dated 5.9.2008 passed by the Additional Director of Education ( Intermediate), Uttar Pradesh, Allahabad, the respondent no.6, who was working as the Principal of Gahmar Inter College, Gahmar, Ghazipur, was transferred as Principal of the institution in question. It further appears that the said transfer order was made after the Committee of Management, Gahmar Inter College, Gahmar passed a Resolution dated 17.8.2008 and gave its No-Objection Certificate dated 17.8.2008, and also the Prabandh Sanchalak of the institution in question passed a Resolution dated 19.8.2008 and gave his No-Objection Certificate dated 19.8.2008. Pursuant to the said Transfer Order dated 5.9.2008, the respondent no.6 submitted his joining on the post of Principal of the institution in question. The District Inspector of Schools by the order dated 15.9.2008 attested the signature of the respondent no.6 as the Principal of the institution in question. The petitioner-appellant filed the aforesaid Civil Misc. Pursuant to the said Transfer Order dated 5.9.2008, the respondent no.6 submitted his joining on the post of Principal of the institution in question. The District Inspector of Schools by the order dated 15.9.2008 attested the signature of the respondent no.6 as the Principal of the institution in question. The petitioner-appellant filed the aforesaid Civil Misc. Writ Petition No. 49796 of 2008, interalia, making the following prayer: "i) a writ, order or direction in the nature of certiorari to call for the record as well as order dated 5.9.2008 passed by the Additional Director of Education ( Secondary), U.P., Allahabad and to quash the same; ii) a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in the functioning of the petitioner as Principal of the Gangapur Inter College, Gangapur, Varanasi and to pay his salary regularly month to month applicable to the said post; iii) a writ, order or direction in the nature of mandamus restraining the respondent no.6 from the joining the post of Principal in Gangapur Inter College, Gangapur, Varanasi; iv) any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case; v) award costs of the writ petition to the petitioner." By the order dated 22.9.2008, the learned Single Judge dismissed the said Writ Petition filed by the petitioner-appellant. 6. Thereupon, the petitioner-appellant has filed the present Special Appeal. By the order dated 14.10.2008, a Division Bench of this Court granted interim order in the present Special Appeal, which is reproduced below: "We have heard Sri Ashok Khare, learned senior counsel assisted by Sri V.K. Singh for the appellant, learned standing counsel appearing for respondents no.1, 2, 3 and 4 and Sri G.K. Gupta, learned counsel appearing for respondent no.6. They pray for and are allowed one month's time to file counter affidavit. The appellant shall have two weeks thereafter to file rejoinder affidavit. The appellant shall take steps, to serve respondent no.5 by registered post, within a week. The office shall send notice returnable at an early date. List on the date fixed by the office in the notice. Learned counsel for the appellant has urged that in the institution Prabandh Sanchalak has been appointed. The appellant shall take steps, to serve respondent no.5 by registered post, within a week. The office shall send notice returnable at an early date. List on the date fixed by the office in the notice. Learned counsel for the appellant has urged that in the institution Prabandh Sanchalak has been appointed. As per Regulations 55 to 61 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921 the transfer from one institution to another can be made subject to the consent and approval of both the committees of management. In the instant case permission has been granted by Prabandh Sanchalak. Prima facie, we are of the opinion that Prabandh Sanchalak could not grant such an approval/consent. The question has also been referred to a larger bench as has been noticed by the learned single judge in his judgment. In this view of the matter, the appellant is entitled to interim order. Until further orders of this court, effect and operation of the judgment and order dated 22.9.2008 passed by learned single judge and the order dated 5.9.2008 transferring respondent no.6 to the appellant's institution shall remain stayed." It further appears that against the said order dated 14.10.2008, the respondent no.6 filed Special Leave Petition before the Supreme Court. By the order dated 24.10.2008, Their Lordships of the Supreme Court dismissed the said Special Leave Petition. We have heard Shri R.K. Ojha, learned counsel for the petitioner-appellant, the learned Standing Counsel appearing for the respondent nos. 1 to 4 and Shri M.D. Singh 'Shekhar', learned Senior Counsel assisted by Shri R.D. Tiwari, learned counsel for the respondent no.6, and perused the record. The main contention of the petitioner-appellant in the Writ Petition as well as in the present Special Appeal has been that the Prabandh Sanchalak appointed in the institution in question was not authorized to give consent for transfer of the respondent no.6 as Principal of the institution in question, as the said power could be exercised only by the Committee of Management. In Narendra Kumar Vs. State of U.P. and others, ( 2002) 1 UPLBEC 683,a learned Single Judge held that the Prabandh Sanchalak appointed in an Institution was authorised to give consent, like Committee of Management, for transfer of a Principal to the Institution. In Civil Misc. In Narendra Kumar Vs. State of U.P. and others, ( 2002) 1 UPLBEC 683,a learned Single Judge held that the Prabandh Sanchalak appointed in an Institution was authorised to give consent, like Committee of Management, for transfer of a Principal to the Institution. In Civil Misc. Writ Petition No. 34450 of 2001, Committee of Management, Uchchtar Madhyamik Vidhyala Samiti, Sukhpura, Ballia and another Vs. Director of Education ( Secondary) U.P., Lucknow and others connected with Civil Misc. Writ Petition No.36980 of 2001, Surendra Nath Gupta Vs. State of U.P. through Secretary Secondary Education, Government of U.P., Lucknow and others, another learned Single Judge disagreed with the view taken by the learned Single Judge in Narendra Kumar case ( supra), and referred the following questions for consideration by a Larger Bench : "1. Whether the consent of Prabandh Sanchalak appointed by Joint Director of Education under Clause 7 of the Scheme of Administration for holding election given by him under Regulation 58 of Chapter III of Regulation made under the Intermediate Education Act, 1921 for transfer of a Principal to the institution amounts to consent of the 'Committee of Management' as provided in proviso ( 1) to Regulation 61( 1) of the Regulations as above? and 2. Whether the interpretation given by learned Single Judge in favour of such consent given by Prabandh Sanchalak to be valid by interpreting proviso ( 1) to Regulation 61( 1), in Narendra Kumar Vs. State of U.P. and others, is correct." In view of the above reference, a learned Single Judge also referred Civil Misc. Writ Petition No. 46320 of 2004, Yashoda Raj Kumari Kunjil Vs. State of U.P. and others, for consideration by the Larger Bench. The said questions were answered by the Larger Bench by its decision dated 8.9.2010 holding that "once an Authorized Controller/Prabandh Sanchalak/Administrator is appointed, such a person will exercise all powers conferred by the Scheme of Administration and in addition the powers conferred by the various Acts, Regulations and the Rules."The said decision is reported in Yashoda Rajkumari Kunjil Vs. State of U.P. and others, ( 2011) 1 UPLBEC 370 . State of U.P. and others, ( 2011) 1 UPLBEC 370 . It will thus be noticed that the main contention made by the petitioner-appellant in the Writ Petition as also in the present Special Appeal stands answered against the petitioner-appellant, and it is evident that the Prabandh Sanchalak of the institution in question was authorized to give consent and No-Objection Certificate in respect of the transfer of the respondent no.6 on the post of Principal to the institution in question. In the circumstances, no interference is called for with the judgment and order dated 22.9.2008 passed by the learned Single Judge dismissing the Writ Petition filed by the petitioner-appellant challenging the transfer order dated 5.9.2008. Shri R.K. Ojha, learned counsel for the petitioner-appellant has fairly stated that the petitioner-appellant has already retired on 30.6.2009. In view of the above, the Special Appeal filed by the petitioner-appellant is liable to be dismissed, and the same is accordingly dismissed. However, on the facts and in the circumstances of the case, there will be no orders as to costs.