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2016 DIGILAW 2787 (ALL)

Durgawati Devi v. Krishnawati Singh

2016-08-11

A.P.SAHI, VIJAY LAXMI

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JUDGMENT Special Appeal No.328 of 2016 have been filed by Smt. Durgawati Devi who was admittedly, functioning as the Principal of Amar Gandhi Pustakalaya Balika Inter College, Jalalpur, district Ambedkar Nagar. She has already attained the age of 62 years and admittedly, she continued till the end of the session i.e., till 31.03.2016. The Management continued her further even thereafter that gave rise to filing of the writ petition being Writ Petition No.12316 (S/S) of 2016 by the respondent Smt. Krishnawati Singh. The said writ petition arrayed the Committee of Management as the respondent No.6 and the appellant as the respondent No.7. The Committee of Management was supporting the cause of the appellant as it claimed that it had reappointed her on the said post. The said reappointment which was being claimed by the petitioner, was questioned by the respondent on the ground that she having attained the age of superannuation and her tenure having come to an end, the appellant cannot continue as the Head of the Institution any longer. 2. The learned Single Judge entertained the writ petition on 30.05.2016 and passed the following order: - “Notice on behalf of opposite parties no.1 to 4 have been accepted by learned Chief Standing Counsel, whereas Mr. Neeraj Chaurasiya, Advocate has accepted notice on behalf of opposite party no.5 and Mr. Pawan Kumar Advocate has accepted notice on behalf of opposite party no.6. Learned counsel for the petitioner submits that the petitioner is the senior most teacher in the institution concerned, however, instead of giving charge of the post of Officiating Principal, the DIOS vide impugned order dated 12.4.2016 has certified the signature of opposite party no.7, who have been superannuated on attaining the age of superannuation. Learned Standing Counsel prays for and is granted two weeks' time to seek complete instructions in the matter. List in the month of July, 2016, as fresh.” 3. The matter was taken up on 02.08.2016 on which date, the case was directed to come up on 05.08.2016. By the impugned interim order dated 05.08.2016, the learned Single Judge has restrained the appellant from further continuing and discharging her duties on the post of Principal of the Institution presumably on the ground as disclosed that she had attained the age of superannuation. 4. By the impugned interim order dated 05.08.2016, the learned Single Judge has restrained the appellant from further continuing and discharging her duties on the post of Principal of the Institution presumably on the ground as disclosed that she had attained the age of superannuation. 4. Challenging the very same impugned order, Special Appeal No.330 of 2016 has been filed by the Committee of Management contending that the Committee has the power to appoint a person of its choice even if the said incumbent is beyond the said age about which the dispute is being raised and even otherwise, according to the Management, to consider the respondent Smt. Krishnawati Singh was not feasible as she was not qualified to occupy the post. The work of the Institution had to be continued keeping in view the fresh admissions and other formalities to be completed with regard to the students who were seeking admission in the Institution as such it was desirable to continue the appellant. 5. Dr. L.P. Misra, learned counsel has appeared for the appellant Smt. Durgawati Devi and Sri Pawan Kumar Pandey has advanced his submissions on behalf of the Committee of Management in the other special appeal. They contend that the learned Single Judge has exceeded in authority in proceeding to grant the final relief on the very first day inasmuch as, Smt. Durgawati Devi the appellant in Special Appeal No.328 of 2016 had not been represented earlier in the proceedings before the learned Single Judge. In such circumstances, the learned Single Judge should have proceeded only after exchange of affidavits to consider the grant of any relief and otherwise ought not to have restrained the appellant from functioning in the Institution pending decision in the petition. 6. Dr. L.P. Misra has further submitted that such a direction at the very threshold, could not have been given keeping in view the decision in the case of Purshottam Vishandas Rahela and another. v. Shrichand Vishandas Rahela (dead) through Lrs. and others, (2011) 6 SCC 73 and Union of India and others. v. Modiluft Ltd., (2003) 6 SCC 65 . 7. They also urge that coupled with this, Smt. Krishnawati Singh had no locus to maintain the writ petition as she was not qualified and as such, the said interim relief ought not have been granted at the instance of the respondent Smt. Krishnawati Singh. 8. Dr. v. Modiluft Ltd., (2003) 6 SCC 65 . 7. They also urge that coupled with this, Smt. Krishnawati Singh had no locus to maintain the writ petition as she was not qualified and as such, the said interim relief ought not have been granted at the instance of the respondent Smt. Krishnawati Singh. 8. Dr. L.P. Misra has invited the attention of the Court to the provisions of Section 7-A and 7-AA of the U.P. Intermediate Education Act, 1921 as well as Clause 7 (Cha) of the Government order dated 15.10.1986 to urge that the Management has the authority to appoint a teacher on part time basis keeping in view the nature of unaided recognised institutions under the aforesaid provisions. He submits that the Management was well within its authority to employ the appellant Smt. Durgawati Devi even after attaining the age of 62 years inasmuch as the Government order aforesaid also clearly permits the Management to do so. 9. Replying to the aforesaid submissions, Sri Ramesh Pandey for the respondent No.1 Smt. Krishnawati Singh submits that the issue of the qualification of the answering respondent was still there before the learned Single Judge and even otherwise, the answering respondent is qualified to occupy the post of the Principal of the College. He, however, submits that so far as the appellant Smt. Durgawati Devi is concerned, she cannot claim any right of continuance after the age of superannuation keeping in view the provisions of the Rules framed under the Government order dated 10.08.2001 in relation to unaided recognised Institutions read with the Government order dated 27.02.2004. He submits that Smt. Durgawati Devi, therefore, being not eligible to continue after 62 years of age, has been rightly have restrained by the learned Single Judge and as such, the order which has been passed, being perfectly in conformity with the law. The discretion exercised by the learned Single Judge does not suffer from any infirmity and should not be interfered with in exercise of the appellate jurisdiction of this Court. He also submits that even otherwise, the cause of the appellant Smt. Durgawati Devi was being contested by the Committee of Management that was already represented before the learned Single Judge. In this situation, where the legal position is like a water tight compartment, the interim order having been passed which is in conformity with law, cannot be questioned on any ground. In this situation, where the legal position is like a water tight compartment, the interim order having been passed which is in conformity with law, cannot be questioned on any ground. 10. So far as the issue of qualification of the answering respondent is concerned as noted above, the contention is that she being qualified, the appointment cannot be questioned on any ground either by the Committee or by Smt. Durgawati Devi who has no right to continue as Principal of the Institution. 11. We have heard the learned counsel for the parties. 12. On the first issue relating to maximum age or the age of superannuation to be observed for the purpose of continuance of a Principal of a recognised unaided Institution, we may put on record that the Government order dated 10.08.2001 that introduced the Rules for such appointment in the opening paragraph clearly recites that all the previous Government orders stand superseded. Consequently, the Government order dated 15.10.1986 is of no avail. Dr. L.P. Misra, learned counsel for the appellant vehemently urged that where there is a gap, then in that event, the Government order can be enforced for the said purpose. His submission is that the Government order of 1986 on which reliance has been placed, so far as the provisions for appointing teachers even beyond the age of superannuation, the same would continue to operate as the Rules that have been introduced by the Government order dated 10.08.2001, do not prescribe any maximum cap of age for such appointment. 13. We are unable to agree with the aforesaid proposition for two reasons. Firstly, that the Government order dated 15.10.1986 stands superseded in its entirety as noted above and, therefore, its enforcement cannot be permitted once the Rules of 2001 have been framed. Secondly, Sri Ramesh Pandey has invited the attention of the Court to the subsequent Government order dated 27.02.2004 that is extracted hereinunder: - (Vernacular Matter) 14. A perusal of the same leaves no room of doubt that the age of superannuation for the purpose of such teachers in unaided recognised Institutions have been clearly prescribed as 62 years. Consequently, the learned Single Judge did not commit any error in putting a restraint order on the appointment of Smt. Durgawati Devi who did not have any right to continue beyond the age of 62 years. 15. Consequently, the learned Single Judge did not commit any error in putting a restraint order on the appointment of Smt. Durgawati Devi who did not have any right to continue beyond the age of 62 years. 15. Assuming for the sake of arguments that the nature of the impugned relief was almost final in nature we find that the continuance of the appellant was clearly in violation of law, and in the absence of anything to the contrary, it is not necessary for us to interfere with the discretion so exercised by the learned Single Judge which is completely in consonance with law. Apart from this, we have also perused the terms of recognition granted to the institution that also refers to the appointment and engagement of the Principal and other employees in accordance with the 1921 Act and the Regulations framed thereunder. Additionally a reasonable approach and interpretation would be to apply the same criteria of superannuation as the qualifications for appointment are the same. We, therefore, decline to interfere with the aforesaid directions issued by the learned Single Judge holding that the Government order dated 27.02.2004 still holds the filed. 16. The next question is with regard to the locus of the respondent. As the Committee of Management has already questioned her status, then for that, since the writ petition is still pending before the learned Single Judge, it will be open to the Committee of management to contest the aforesaid position before the learned Single Judge to that extent. 17. The writ petition, therefore, may be heard by the learned Single Judge and he is requested to hear the matter if possible, in the coming next week. Learned counsel for the parties will approach the learned Single Judge for an expeditious and early hearing of the writ petition itself as indicated above. 18. It shall be open to the learned Single Judge to pronounce upon the said issue raised and also to make any necessary arrangement that may be required for the purpose of running the Institution either through any direction to the District Inspector of Schools or the Committee of Management as the case may be. 19. The special appeals are disposed of accordingly. 20. A certified copy of this order be given today to the learned counsel for the parties on usual charges. Order accordingly.