JUDGMENT Ram Das Yadav, son of Late Rameshwar Yadav describing himself as officiating Principal of C.A.V. Inter College, Allahabad is before this Court, assailing the validity of the order dated 16.05.2016 passed in Civil Misc. Writ Petition No. 22362 of 2016 (Ram Das Yadav Vs. State of U.P. and others), wherein learned Single Judge has proceeded to allow the preliminary objection raised by respondent no.5 Nawab Singh and proceeded to dismiss the writ petition as pre-mature and therefore, not maintainable. 2. Brief background of the case as is emanating that there is an institution known as C.A.V. Inter College, Allahabad, which is duly recognized institution under the provision of U.P. Intermediate Education Act, 1921. The institution in question is in grant in aid list of the State Government and the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal/Teacher is to be made strictly in consonance with the provision as contained under U.P. Secondary Education Services Selection Board Act,1982 along with U.P. Secondary Education Services Selection Board Rules, 1998 read alongwith the provisions of U.P. Intermedite Education Act 1921 and the Regulations framed thereunder. In the institution concern, petitioner/appellant claims that he has been appointed as Lecturer (Hindi) on 09.09.1996 and had been performing and discharging his duty in the said capacity. Dr. Bhagwat Singh, who was Principal of the institution was to retire on 30.06.2015 and Managing Committee of the institution before he could attain the age of superannuation has proceeded to place Dr. Bhagwat Singh under suspension on 28.06.2015 and in his place Nawab Singh, respondent no.5 was not asked to perform and discharge his duty as Officiating Principal of the institution. Nawab Singh due to problem in his vision and that he would be not able to perform duty as officiating Principal. Thereafter in the meeting dated 28.06.2015 held by the Committee of Management candidature of Nawab Singh, respondent no.5 was found to be unsuitable, as he was unable to read and was unfit to perform day-to-day administrative function of the institution, in view of this, name of petitioner/appellant was recommended on the post of Officiating Principal and signature of petitioner/appellant has also been attested by the District Inspector of Schools, Allahabad on 04.07.2015. This much is also reflected that against the order dated 04.07.2015 passed by the District Inspector of Schools, Allahabad, Nawab Singh, respondent no.5 preferred Civil Misc. Writ Petition No. 37849 of 2015 before this Court and this Court on 13.07.2015 passed following order. "Heard learned counsel for the petitioner, Sri N.K. Chaturvedi, appearing for the sixth respondent and the learned Standing Counsel, appearing for the State-respondents. The petitioner is the senior-most Lecturer working with the fifth respondent, C.A.V Inter College, Allahabad (hereinafter referred to as the 'Institution'), the sixth respondent, Ram Das Yadav is junior to the petitioner. The petitioner is aggrieved by the order dated 4 July 2015, passed by the District Inspector of Schools, Allahabad and the resolution dated 28 June 2015, passed by the Committee of Management of the Institution, denying petitioner charge as officiating Principal of the College thereby approving the name of the sixth respondent as officiating Principal. The submission of the learned counsel for the petitioner is that the petitioner is not completely blind, is able to perform his duties as an officiating Principal, the impugned order is against the statutory provisions contained in Regulation 2 of Chapter II of the Regulation, framed under the U.P.Intermediate Education Act 1921, also in violation of the provisions of U.P. Secondary Education Services Selection Board Act 1982 and the U.P. Secondary Education Services Selection Board Rules, 1998. Sri N.K. Chaturvedi, appearing for the sixth respondent would submit that the District Inspector of Schools in the impugned order has noted and recorded a finding that the petitioner upon appearing before the committee of management expressed his inability to perform duties as an officiating Principal on being visually handicapped, thereafter the sixth respondent was appointed officiating Principal of the Institution. Learned Standing Counsel would submit that the fact regarding ability of the petitioner in performing duties as officiating Principal can be gone into by the Joint Director of Education, Allahabad Region, Allahabad. Be that as it may, without entering into the merits of the case and the contentions raised by the learned counsels, it is provided that the Joint Director of Education, Allahabad Region, Allahabad shall consider and decide the representation of the petitioner by a reasoned and speaking order, preferably within six weeks from the date of filing of a certified copy of this order along with a copy of the representation. It is made clear that the fifth and sixth respondents, Committee of Management, C.A.V Inter College, Allahabad and Sri Ram Das Yadav, respectively shall be heard before the order is passed. The impugned order shall abide by the decision taken by the Joint Director of Education, Allahabad. With the aforesaid observations, the writ petition is disposed of". 3. Pursuant to the order passed by this Court on 13.07.2015, matter was examined extensively by the Joint Director of Education, Allahabad Division, Allahabad on 24.11.2015 and looking into the physical condition of Nawab Singh, respondent no.5 categorical mention was made that he is not physically fit to discharge and perform his duty as officiating Principal of the institution. 3. Pursuant to the order passed by this Court on 13.07.2015, matter was examined extensively by the Joint Director of Education, Allahabad Division, Allahabad on 24.11.2015 and looking into the physical condition of Nawab Singh, respondent no.5 categorical mention was made that he is not physically fit to discharge and perform his duty as officiating Principal of the institution. Operative portion of order is as follows: - fu.kZ; ;kph Jh uokc flag] izoDrk ¼vaxzsth½] lh0,0oh0 dkyst] bykgkckn] izfroknhx.k }kjk miyC/k djk;s x;s fyf[kr vfHkdFku ¼lqlaxr lk{;ksa lfgr½ rFkk i=koyh esa miyC/k i=tkrksa@vfHkys[kksa dk xgurk ls vuq'khyu@ijh{k.k djus ds Ik'pkr eSa bl fu"d"kZ ij igWwpk gWw fd Jh uokc flag izoDrk ¼vaxzsth½ 'kS{kf.kd nkf;Roksa ds fuoZgu esa v{ke gSA vr% fo|ky;@Nk=fgr esa bUgsa rnFkZ iz/kkukpk;Z dk inHkkj lkSiuk fof/klEer ugh gS rFkk uSlfxZd U;k; ds izfrdwy gSA blls fo|ky; ds Nk=ksa dk Hkfo"; izHkkfor gksxkA Lis'ky vihy la[;k&44@2012 desVh vkQ eSustes.V dqoj jkuh lR;ohj dU;k b.Vj dkyst cuke m0iz0 ljdkj o vU; esa ekuuh; mPp U;k;ky;] bykgkckn [k.MihB }kjk ikfjr fu.kZ; fnukad 09-01-2012 esa Hkh ;g er vo/kkfjr fd;k x;k gS fd 'kkjhfjd : i ls v{ke ofj"Brk dze izFke izoDrk dks iz/kkukpk;Z dk dk;ZHkkj lkSiuk fof/klEer~ ugh gSA b.VjehfM,V f'k{kk vf/kfu;e&1921 dh v/;k;&3 dh fofu;e &32 esa fufgr O;oLFkkuqlkj ;kph Jh uokc flag] izoDRkk ¼vaxzsth½ dks 'kS{kf.kd dk;Z dh vn{krk gksus ds dkj.k lsok ls foeqDr@(Compulsory Retirement) djus dh dk;Zokgh dh tkuh pkfg,A vr% laLFkkf/kdkfj;ka }kjk izoDrk Js.kh ds ofj"Brk dze&2 ij vafdr jkenkl ;kno dks rnFkZ iz/kkukpk;Z dk izHkkj fn;k tkuk Nk= fgr ,oa fo|ky;fgr ds fy;s mfpr gSA Jh uokc flag ds lEcU/k esa ek/;fed f'k{kk vf/kfu;e&1921 ds v/;k;&3 ds fofu;e 32 esa fufgr O;oLFkkuqlkj lsok foeqfDr@oSo';d lsokfuo`fRr (Compulsory Retirement) gsrq dk;Zokgh fd;k tkuk Hkh mfpr izrhr gksrk gSA laLFkk ds izcU/kd dks funsZf'kr fd;k tkrk gS fd Jh uokc flag ds fo: ) b.VjehfM,V f'k{kk vf/kfu;e&1921 dh v/;k;&3 dh fofu;e&32 esa mfYyf[kr izkfo/kkukuqlkj fu;ekuqlkj dk;Zokgh lqfuf'pr djsaA mi;ZqDRkkuqlkj ;kfpd la[;k&37849@2015 uokc flag cuke m0iz0 ljdkj o vU; esa ekuuh; mPp U;k;ky; }kjk ikfjr fu.kZ; fnukad 13-07-2015 ds vuqikyu esa izdj.k dk fuLrkj.k fd;k tkrk gSA g0 viBuh; ¼egsUnz dqekj flag½ la;qDr f'k{kk funs'kd bykgkckn e.My bykgkckn ** 4. This particular order dated 24.11.2015 has been subjected to challenge before this Court in Civil Misc. This particular order dated 24.11.2015 has been subjected to challenge before this Court in Civil Misc. Writ Petition No. 64 of 2016 (Nawab Singh Versus State of U.P. and 6 others) and this Court on 06.01.2016 proceeded to pass following order: - "The petitioner's claims for the officiating Principal has been rejected by the impugned order on the ground that he is partially blind thus he cannot perform the duties of the office of Principal. In the impugned order a finding has been recorded that the authority concerned has given some papers asking to write the name of the petitioner and the institution's name at certain serial numbers, which according to the authority, the petitioner has miserably failed. The contention of the learned Counsel for the petitioner is that apart from the said finding the Joint Director has also recorded a finding that the services of the petitioner should be dispensed with on the ground of his physical infirmity. It is submitted by the learned Counsel for the petitioner that the Joint Director has exceeded his jurisdiction by recommending dismissal of the petitioner. This Court in Writ Petition No. 37849 of 2015 has directed him to decide the claim of the petitioner in respect of officiating Principal but the Joint Director has recommended the Committee of Management to dispense the services of the petitioner. The said direction, prima facie, appears to be unjustified. I find merit in the submission of learned Counsel for the petitioner. Learned Standing Counsel has accepted notice on behalf of respondent nos. 1 to 4, Sri A.K. Yadav, learned Advocate appears for respondent no. 5, and Sri N.K. Chaturvedi, learned Advocate has put in appearance on behalf of seventh respondent. Issue notice to respondent no. 6 returnable at an early date. The notice will indicate that the respondent may file counter affidavit within six weeks from the date of receipt of the notice. Counter affidavit be filed by other respondents within the same period. Rejoinder affidavit, if any, may be filed within a week thereafter. List accordingly. Until further order, the effect and operation of the impugned order dated 24.11.2015, insofar as the recommendation of the Joint Director to dispense with the services of the petitioner is concerned, shall remain stayed". 5. Counter affidavit be filed by other respondents within the same period. Rejoinder affidavit, if any, may be filed within a week thereafter. List accordingly. Until further order, the effect and operation of the impugned order dated 24.11.2015, insofar as the recommendation of the Joint Director to dispense with the services of the petitioner is concerned, shall remain stayed". 5. In-spite of the fact that order dated 24.11.2015 passed by the Joint Director of Eduction, Allahabad Division, Allahabad has been holding the field and limited interim order has been passed by this Court on 06.01.2016 to the extent that so far as the recommendation of the Joint Director to dispense with the services of the Nawab Singh, respondent no.5 is concerned same shall remain stayed. It appears that novel device was adopted by Nawab Singh, respondent no.5 to prima facie over come and over reach the order passed by this Court as well as the order passed by Joint Director of Education that has been holding the field and once again with this design he has proceeded to approach the Managing Committee of the Institution by mentioning that there are various institutions wherein physically impaired incumbents are performing and discharging their duty as Head Master/Officiating Principal, and in view of this, order dated 28.06.2015 passed by the Committee of Management be recalled. This much is also reflected that meeting of Managing Committee of the institution has been convened on 07.05.2016 and resolve has been taken to hand over the charge of officiating Principal to Nawab Singh, respondent no.5. Petitioner/appellant at the said juncture preferred Civil Misc. Writ Petition No. 22362 of 2016 and learned Single on the preliminary objection raised by Sri Kshitij Shailendra, learned counsel for the respondent no.5 as well as Sri Rahul Agarwal, learned counsel for the respondents Managing Committee of the institution that the writ petition is not maintainable since the order of the Committee of Management is not final and in any case the impugned order is subject to the approval or disapproval by the District Inspector of Schools and the signature of the respondent no.5 is yet to be attested and therefore, writ petition with a direction to the Committee of Management is not maintainable and said preliminary objection has been upheld and this has impelled the petitioner/appellant to be before this Court. 6. 6. Sri N.K. Chaturvedi, learned counsel for the petitioner/appellant submitted with vehemence that in the present case Committee of Management performs statutory duty in the matter by making appointment on the post of Principal though boith under Chapter-II Regulation-2 first proviso as well as under Section 18 of U.P. Act No. 5 of 1982 and once Committee of Management exercises its statutory duty and in the past matter has travelled to this Court and no interim order has been passed by this Court, then Managing Committee of the institution has no authority to review the order as has been done in the present case, totally ignoring the order passed by the Joint Director of Education, Allahabad Division, Allahabad on 24.11.2015, and in view of this, preliminary objection raised on behalf of the respondent no. 5, writ petition is not maintainable, is totally wrong opinion. 7. Countering the said submission, learned Standing Counsel, Sri Kshitij Shailendra, learned counsel for the respondent no.5 as well as Sri Rahul Agarwal, learned counsel for the respondents on the other hand contended that writ petition has rightly been held to be not maintainable since the order of the Committee of Management is not final and in any case the impugned order is subject to the approval or disapproval by the District Inspector of Schools and the signature of the respondent no.5 is yet to be attested. 8. Under U.P. Intermediate Act 1921, Chapter-II deals with appointment of Head of Institution and Regulation-2 of Chapter-II has a proviso that mandates that till regular selection is not made, senior most qualified teacher should be promoted as Head of Institution. Section 32 of U.P. Act No. 5 of 1982 talks of applicability of U.P. Act No. 2 of 1921 and the Regulations framed thereunder to the extent they are not inconsistent to provision of U.P. Act No. V of 1982. Section 18 of U.P. Act No. 5 of 1982 provides that once office in question has fallen vacant to the post of Principal, then senior most incumbent is to be appointed by the Committee of Management and once Managing Committee fails to promote the senior most incumbent then District Inspector of Schools has a right to intervene and issue appointment letter himself. Managing Committee is obligated to make officiating/ad-hoc arrangement to the office of Principal/Head Master by promoting senior most incumbent. Managing Committee is obligated to make officiating/ad-hoc arrangement to the office of Principal/Head Master by promoting senior most incumbent. Same is a rule but various exceptions have been carved out through judicial pronouncements. A Full Bench of our Court in the case of Km. Radha Raizada Vs. D.I.O.S. 1994 (3) UPLBEC 1555 has dealt with the contingency when senior most incumbent could be by-passed. View to the similar effect has been taken by a coordinate Bench of this Court in the case of Committee of Management Kunwrani Prema Satyaveera Kanya Inter College, Bijnore Vs. State of U.P. 2012 (7) ADJ 692 as follows: - "We further hold that the senior most teacher of the institution shall ordinarily be appointed as ad-hoc Principal, provided he is not facing grave charge and his appointment as ad-hoc Principal would not be detrimental to the interest of institution nor he suffers from such serious physical disability on account of which he cannot perform the duties and function of Principal properly. It is only in these eventualities, the senior most teacher can be denied ad-hoc promotion". 9. Here accepted position is that Managing Committee of Institution in exercise of statutory power has proceeded to non suit the candidature of Nawab Singh, respondent no.5 being physically unfit to carry out the function of Principal. Said order has been subjected to challenge before this Court and this Court relegated the matter to be decided by the Joint Director of Education, Allahabad Division, Allahabad and Joint Director of Education, Allahabad Division, Allahabad also ratified the said situation by mentioning that Nawab Singh was unfit to perform and discharge duty as Principal. Nawab Singh has filed writ petition before this Court and has failed to get any interim order and net effect of the same is that petitioner/appellant continued to function as officiating Principal of the institution and then what has not been accorded to him directly, same has been sought to be accorded indirectly as thereafter Nawab Singh, respondent no.5 has represented the matter before the Managing Committee of the institution and Managing Committee of the institution, ignoring the order passed by the Joint Director of Education, Allahabad Division, Allahabad that has been quoted above and prima facie taking something from here and there has proceeded to pass resolution for appointment of Nawab Singh, respondent no.5 on the post of officiating principal. Once said resolution has been subjected to challenge for non suiting the claim of Nawab Singh, respondent no.5 then petitioner/appellant asking to avail alternative remedy cannot be accepted by us for the simple reason that once decision has been taken by the Joint Director of Education, Allahabad Division, Allahabad in the past on same subject matter, then alternative remedy suggested to approach District Inspector of schools, Allahabad is of no avail, inasmuch as District Inspector of Schools certainly would not proceed to pass any order contrary to the view that has been taken by the Joint Director of Education, Allahabad Division, Allahabad and the matter has been already engaging the attention of this Court. District Inspector of Schools certainly can proceed to exercise authority only when Managing Committee of the institution fails to appoint senior most incumbent being entitled to be appointed. Here fact and situation has been al-together different. 10. In view of this, objection on which writ petition has been dismissed is over ruled and fact of the matter is that Committee of Management of the institution has taken such a resolve on the second time while performing and discharging its statutory duty, as such writ petition against Managing Committee is competent and maintainable. 11. A Full Bench of our Court in the case of Alley Ahmad Abidi Vs. D.I.O.S. 1976 AWC 721 was required to consider whether the Managing Committee of Institution is a statutory body, and if so whether writ petition would be maintainable. This Court on due consideration of provisions of U.P. Intermediate Education Act 1921, concluded that Managing Committee is not a statutory body, such Managing Committee is still amenable to writ jurisdiction when such Managing Committee is entrusted with performance of statutory power and duties. Apex Court in the case of Vaish Degree College, Shamli Vs. Laxmi Narain 1976 (2) SCC 58 held that writ petition is maintainable against Managing Committee of Society running on educational institution discharging statutory duties. Both these judgement have been followed with approval by a co-ordinate Bench of this Court in the case of Shreyaskar Tripathi Vs. State of U.P, Special Appeal No. 1501 of 2007, decided on 26.11.2010, by holding writ to be maintainable against Managing Committee of Institution. 12. Both these judgement have been followed with approval by a co-ordinate Bench of this Court in the case of Shreyaskar Tripathi Vs. State of U.P, Special Appeal No. 1501 of 2007, decided on 26.11.2010, by holding writ to be maintainable against Managing Committee of Institution. 12. Here in the fact of the case, writ petition in question ought not to have been dismissed by carving out forum that was not available in the facts of case, rather writ petition ought to have been clubbed alongwith earlier Civil Misc. Writ Petition No. 64 of 2016 (Nawab Singh Versus State of U.P. and 6 others) and both the writ petitions ought to have been decided to-gether to answer the issue as to whether Managing Committee of the institution was right in reviewing its earlier order in the teeth of decision taken by the Joint Director of Education, Allahabad Division, Allahabad. 13. In view of this, order impugned dated 16.05.2016 is set aside. Special Appeal is allowed. Both the matter i.e. Civil Misc. Writ Petition No. 22362 of 2016 (Ram Das Yadav Vs. State of U.P. and others) as well as Civil Misc. Writ Petition No. 64 of 2016 (Nawab Singh Versus State of U.P. and 6 others) should be clubbed and decided together and during this interregnum period, resolution passed by the Managing Committee of the institution dated 07.05.2016 as well as its communiction under letter dated 08.05.2016 both are directed to be kept in abeyance and validity of the said subsequent resolution shall abide by final order to be passed by this Court. No order as to cost.