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2022 DIGILAW 1051 (ALL)

Vikas Jain v. State of U. P.

2022-07-08

ASHUTOSH SRIVASTAVA, PRITINKER DIWAKER

body2022
JUDGMENT : 1. This Intra Court Appeal has been filed questioning the legality, propriety and correctness of the order dated 27.5.2022 passed by the learned Single Judge in Writ (A) No. 5601 of 2022 (Vikas Jain v. State of U.P. and 5 others) whereby the learned Single Judge has disposed of the writ petition by observing that once the appellant/petitioner refused to work on the post of Officiating Head Master, therefore, the charge was given to the Respondent No. 6, Smt. Monika. It was also observed that in between her term, she cannot be disturbed and the appellant/petitioner will have a right to raise his grievance for appointment on the post of Head Master in the Institution, once the term of Respondent No. 6 comes to an end. 2. The facts giving rise to the controversy involved in the present appeal is that the appellant/petitioner approached the learned Single Judge with the allegation that he is Senior Most Assistant Teacher in the Institution in question and vide order dated 17.5.2017 he was appointed as Officiating Head Master being the Senior Most Assistant Teacher and his signatures were duly attested by the District Basic Education Officer, Saharanpur Division, Saharanpur. On 4.6.2020, the petitioner on account of some personal unavoidable circumstances expressed his inability to perform his duty as Officiating Head Master for a short period and requested the Manager of the Institution to assign the responsibilities of the post of Officiating Head Master to some other Assistant Teacher and he would continue to discharge his duties as Assistant Teacher in the Institution. The said letter dated 4.6.2020 is on record at Page No. 70 of the paper book. 3. Pursuant to the aforesaid request of the appellant/petitioner, the charge of Officiating Head Master of the Institution was handed over to the Respondent No. 6, Smt. Monika. Subsequently, the petitioner requested the Manager to appoint him back as Officiating Head Master of the Institution but the said request was not adhered to by the Manager of the Institution and the petitioner was compelled to approach the learned Single Judge for issuance of the appropriate directions to the Respondent Authorities to appoint the petitioner on the post of Head Master in the Institution being the Senior Most Assistant Teacher in terms of the order dated 3.8.2021 of the District Basic Education Officer, Saharanpur. 4. 4. The writ petition was resisted by the Assistant Director of Education, Saharanpur Division, Saharanpur, as also the District Basic Education Officer, Saharanpur, by filing counter-affidavit stating therein that by letter dated 4.6.2020, a copy whereof has been filed at Page No. 147 of the paper book, the appellant/petitioner had clearly expressed that for the past three years he had been satisfactorily discharging the duties of Officiating Head Master of the Institution but presently on account of unavoidable reasons he is unable to perform his duties as Officiating Head Master and, accordingly, a request was made to hand over the charge to some other Assistant Teacher in the Institution. In the aforesaid letter dated 4.6.2020 relied upon by the appellant/petitioner the word ^^dqN le; ds fy,^^ is missing, which is annexed at Page No. 147. It was thus urged by the respondents that the appellant/petitioner had voluntarily tendered his resignation and in such view of the matter, he cannot be permitted to re-assume the charge as Officiating Head Master of the Institution. 5. Learned counsel for the appellant/petitioner submits that the learned Single Judge manifestly erred in law in not considering the case of the appellant/petitioner in the correct perspective and has proceeded on an erroneous assumption that once the petitioner refused to work on the post of Head Master and the charge had already been handed over to the Respondent No. 6 and the Respondent No. 6 was officiating on the post, it would not be appropriate to disturb the Respondent No. 6 till her term came to an end. It was also the case of the appellant/petitioner before the learned Single Judge that the complaints were received against the functioning of the Respondent No. 6 as Head Master of the Institution and the petitioner had requested the management for restoring him as the Officiating Head Master. Pursuant to the request, the District Basic Education Officer, Saharanpur, vide letter dated 3.8.2021 had written to the Manager of the Institution in question to hand over the charge the Officiating Head Master of the Institution to the Senior Most Assistant Teacher working in the Institution. It is also submitted that the Assistant Director of Education (Basic) Saharanpur Division, Saharanpur has also written to the District Basic Education Officer, Saharanpur to ensure compliance of the letter dated 3.8.2021. It is also submitted that the Assistant Director of Education (Basic) Saharanpur Division, Saharanpur has also written to the District Basic Education Officer, Saharanpur to ensure compliance of the letter dated 3.8.2021. It is further submitted by learned counsel for the appellant/petitioner that till a regular Head Master is appointed in the Institution the post of Officiating Head Master is required to be filled up from the Senior Most Assistant Teacher functioning in the Institution. Reliance is placed on a decision of this Court passed in Writ (A) No. 13974 of 2004 (Dhanesh Kumar Sharma v. State of U.P. and another) reported in 2004(5) AWC 4091 in support of his contention that the right of the appellant/petitioner to officiate as Head Master cannot be defeated simply on the ground that on the earlier occasion he has expressed his inability to function as Officiating Head Master. 6. We have heard Sri R. K. Ojha, learned Senior Counsel assisted by Sri Salilendu Kumar Upadhyay, learned counsel for the appellant, Sri Pradeep Kumar Singh, learned Counsel for the respondents and have perused the record. 7. We find that the appellant/petitioner herein is admittedly the Senior Most Assistant Teacher in the Institution in question and had been satisfactorily discharging the function as the Officiating Head Master of the Institution since last more than three years. It is on the request of the appellant/petitioner that the Respondent No. 6 came to be appointed as Officiating Head Master of the Institution. According to the appellant/petitioner, the arrangement was requested for some time. On the other hand, the respondents relying on the letter of the appellant/petitioner himself, as set out in the letter dated 4.6.2020 at Page No. 147 of the paper book, handed over the charge to the Respondent No. 6 to officiate as Head Master of the Institution. It is not in dispute that as on date the Respondent No. 6 is Officiating as Head Master of the Institution. It is also not in dispute that on the representation of the appellant/petitioner, the District Basic Education Officer, Saharanpur, has required the Manager of the Institution to forthwith make arrangement for handing over the charge of Officiating Head Master to the Senior Most Assistant Teacher working in the institution under the intimation to his Office. (Reference Letter dated 3.8.2021 at Page No. 97 of the paper book). 8. (Reference Letter dated 3.8.2021 at Page No. 97 of the paper book). 8. The Assistant Director of Education (Basic) Saharanpur Division, Saharanpur, vide his letter dated 14.12.2021 has also written to the District Basic Education Officer, Saharanpur, to ensure compliance of the letter dated 3.8.2021. The District Basic Education Officer, Saharanpur vide letter dated 22.12.2021 addressed to the Manager of the Institution has further required to take necessary action in the matter under intimation to his Office as also to the Divisional Office. 9. Prima facie, we are of the view that the charge of the Officiating Head Master, till the appointment of a regular Head Master takes place, is to be held by the Senior Most Assistant Teacher working in the Institution unless he is held to be unsuitable or disqualified to hold the charge. No such unsuitability or disqualification has been pointed out in respect of the appellant/petitioner. We find that the issue regarding the appointment of the Senior Most Assistant Teacher of the Institution is already pending with the Assistant Director of Education (Basic) Saharanpur Division, Saharanpur and the District Basic Education Officer, Saharanpur. In such circumstances, we do not approve of the view taken by the learned Single Judge and deem it appropriate to dispose of the Appeal by modifying the order of the learned Single Judge by directing the Assistant Director of Education (Basic) Saharanpur Division, Saharanpur, to take a final decision regarding appointment of Officiating Head Master in the Institution strictly in accordance with law after giving adequate opportunity to the parties concerned i.e. the appellant/petitioner, the Respondent No. 6 as also the Manager of the Institution. The said exercise may be completed by the Assistant Director of Education (Basic) Saharanpur Division, Saharanpur, within a period of one month from the date of production of a certified copy of this order. The order of the learned Single Judge shall stand modified accordingly. 10. The Intra Court Appeal stands disposed of in terms of above.