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2023 DIGILAW 2014 (ALL)

Ramesh Chandra Pal v. State of Uttar Pradesh

2023-08-22

PANKAJ BHATIA

body2023
JUDGMENT : PANKAJ BHATIA, J. 1. The Vakalatnama filed by Sri R.D. Shahi on behalf of the respondent no. 7 is taken on record. The short counter affidavit filed on behalf of the respondent no. 7 is also taken on record. 2. Heard Sri G.C. Verma and Sri Pawan Kumar Pandey, learned Counsel for the petitioner as well as Sri Ran Vijay Singh, learned Standing Counsel and Sri R.D. Shahi and Sri Ghanshyam Verma, learned Counsel appearing on behalf of respondent no. 7. 3. The respondent no. 6 has been added without any basis, as such, he is scrolled off from the array of parties and in view of the documents submitted, there is no need to hear the respondent no. 5. 4. The present petition has been filed challenging the order dated 25/28.07.2023 (Annexure No. 1 to the petition), whereby the respondent no. 7 has been given the charge of officiating Principal superseding the claim of the petitioner, as claimed by him. 5. The facts in brief are that the petitioner was appointed as an L.T. Grade Teacher on 03.02.2004 whereas the respondent no. 7 was appointed as an L.T. Grade Teacher on 07.12.2004. Subsequently, both the petitioner as well as the respondent no. 7 was promoted on 13.03.2012 to the post of Lecturer, however, the respondent no. 7 took the charge as a Lecturer on 13.03.2012 whereas the petitioner took the charge on 14.03.2012. The date of birth of the petitioner is 09.09.1970 and that of the respondent no. 7 is 05.08.1971. 6. The contention of the Counsel for the petitioner is that in the institution in question, one Rajendra Prasad Sharma, the lecturer, was officiating as Principal and subsequently, on having expressed his inability to continue any further, a dispute arose in between the petitioner and the respondent no. 7 with regard to the claim for the post of officiating Principal in the institution in question. It is argued by the Counsel for the petitioner that the petitioner being senior to the respondent no. 7, was eligible for being recommended by the Committee of Management for appointment to the post of officiating Principal, which was done by the Committee of Management and on the recommendation so made, an order came to be passed on 30.09.2011 appointing the petitioner as an officiating Principal. 7, was eligible for being recommended by the Committee of Management for appointment to the post of officiating Principal, which was done by the Committee of Management and on the recommendation so made, an order came to be passed on 30.09.2011 appointing the petitioner as an officiating Principal. The said order passed by the Committee of Management is on record (Annexure-18 to the writ petition). It is argued that in pursuance to the said recommendations made in favour of the petitioner, the signatures of the petitioner were attested as is clear from the letter dated 18.10.2019 (Annexure20 to the writ petition). 7. It is argued that an order issued by the respondent no. 4 on 25.09.2019 directing the Management for appointment of the senior most lecturer as an ad hoc Principal and in pursuance thereof, the consequential order passed by the respondent no. 5, Committee of Management to the effect that as per seniority, the petitioner was appointed as an officiating Principal, came up for challenge in Writ Petition No. 28823 (SS) of 2019. In the said writ petition, directions were issued for filing of the counter affidavit initially and subsequently on 06.11.2019, certain directions were issued in the said writ petition. The order dated 06.11.2019 is annexed as Annexure-22 to the writ petition. Later on, the said writ petition came to be dismissed as withdrawn on 11.01.2023. 8. It is argued that in the meanwhile, Sri Rajendra Prasad Sharma, who had earlier expressed his inability to function as an officiating Principal, was appointed as a regular Principal by the Commission and probably because of the said, the writ petition was dismissed as withdrawn. It is admitted in between the parties that subsequently, Sri Rajendra Prasad Sharma only continued for a period of two months and thereafter, once again a vacancy arose in the office of the Principal of the institution in question and once again the claim of the petitioner arose in view of the seniority list issued by the Committee of Management once again indicating that the petitioner was the senior most to the respondent no. 7. He further argues that the request was also made by the Committee of Management for attesting the signatures of the petitioner. Without considering the said request, the impugned order came to be passed holding that as the respondent no. 7. He further argues that the request was also made by the Committee of Management for attesting the signatures of the petitioner. Without considering the said request, the impugned order came to be passed holding that as the respondent no. 7 had taken charge on 13.03.2012 as a lecturer, he was senior to the petitioner and accordingly issued order appointing the respondent no. 7 as an ah hoc Principal of the institution in question, the said order is impugned herein. 9. In respect to the challenge to the order impugned, Sri G.C. Verma, learned Counsel appearing on behalf of the petitioner argues that in terms of the mandate of Section 18 of the Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 (in short “the 1982 Act”) it is incumbent upon the Management to notify a vacancy to the Board for filling the post of the Principal or the Headmaster and in case, the said vacancy is not filled up for a period of two months, the Management is empowered to fill up such vacancy on ad hoc basis by promoting to the senior most teacher. 10. The Section 18(2) of the 1982 Act provides that in the event, the Management fails to promote the senior most teacher under sub-section (1), the Inspector is authorized to issue an order of promotion of such teacher and the teacher concerned shall be entitled to get salary as the Principal or the Headmaster. 11. For the sake of remedy, Section 18(1) and (2) of the 1982 Act are quoted below: “18. Ad hoc Principals or Headmasters: (1) Where the Management has notified a vacancy to the Board, in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the management shall fill such vacancy on purely ad hoc basis by promoting the senior-most teacher. (a) in the lecturer's grade in respect of a vacancy in the post of the Principal. (b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster. (a) in the lecturer's grade in respect of a vacancy in the post of the Principal. (b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster. (2) Where the Management fails to promote the senior-most teacher under sub-section (1) the inspector shall himself issue the order of pro-motion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he joins such post is pursuance of such order of promotion.” 12. Sri G.C. Verma, learned Counsel appearing on behalf of the petitioner further argues that for the purpose of determination of seniority, the provisions are contained in Chapter-II of the Regulation framed under the 1982 Act. He places reliance on Regulation 3 of the Chapter-II, which is quoted herein below: “3 (1) The Committee of Management of every institution shall cause a seniority list of teachers to be prepared in accordance with the following provisions: (a) The seniority list shall be prepared separately for each grade of teachers whether permanent or temporary, on any substantive post. (b) Seniority of teachers in a grade shall be determined on the basis of their substantive appointment in that grade. If two or more teachers were so appointed on the same date, seniority shall be determined on the basis of age. (bb) Where two or more teachers working in a grade are promoted to the next higher grade on the same date, their seniority inter se shall be determined on the basis of the length of their service to be reckoned from the date of their substantive appointment in the grade from which they are promoted: Provided that if such length of service is equal, seniority shall be determined on the basis of age. (c) A teacher in a higher grade shall be deemed to be senior to a teacher in the lower grade irrespective of the length of service. (d) If a teacher who is placed under suspension is reinstated on his original post his original seniority in the grade shall not be affected. (e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision. (d) If a teacher who is placed under suspension is reinstated on his original post his original seniority in the grade shall not be affected. (e) Every dispute about the seniority of the teacher shall be referred to the Committee of Management which shall decide the same giving reasons for the decision. (f) mi[k.M ¼³½ ds v/khu ÁcU/k lfefr ds fofu'p; ls O;fFkr dksbZ v/;kid ,slk fofu'p; ,sls v/;kid dks lwfpr fd;s tkus ds fnukad ls 15 fnu ds Hkhrj lEcf/kr {ks=h; mif'k{kk funs'kd dks vihy dj ldrk gS vkSj vihy ij lEcfU/kr i{kksa dks lquokbZ dk volj nsus ds mijkUr mif'k{kk funs'kd viuk fu.kZ; dkj.k lfgr nsxk] tks vfUre gksxk vkSj ÁcU/k lfefr }kjk dk;kZfUor fd;k tk;sxkA (g) ;fn ,d xzsM esa dk;Zjr nks ;k vf/kd v/;kid fdlh ,d gh frfFk ij inksUufr fd, tk,a rks mudh T;s"Brk dk vk/kkj ml xzsM dk lsokdky gksxk] ftlesa os dk;Zjr Fks] ijUrq ;fn lsokdky cjkcj gS] rks inksUufr dks n'kk esa vk;q ds vk/kkj ij T;s"Brk fu/kkZfjr dh tk;sxhA (2) The seniority list shall be revised every year and the provisions of Clause (1) shall mutatis mutandis apply to such revision.” 13. In the light of the said two provisions, in nutshell, the argument of the learned Counsel for the petitioner is that there was no occasion for the respondents to pass an order as the situation contemplated under Section 18(2) did not arise. He argues that the Committee of Management had recommended the name of the petitioner in terms of the powers conferred upon the Management under Section 18(1) of the 1982 Act and the powers under Section 18(2) could only be exercised, if the Management failed to exercise power under Section 18(1) and therefore, the order impugned deserves to quash on that ground alone. 14. In addition to the said arguments, the Counsel for the petitioner Sri G.C. Verma argues that the Regulation 3 (bb) and the Regulation 3(g) specifically provide for the manner for determining seniority, where there are two or more teachers working in a same grade and are promoted on the same date. It also provides the manner in which the seniority shall be determined inter se in between two or more teachers. In the light of the said, he argues that admittedly both the petitioner and the respondent no. It also provides the manner in which the seniority shall be determined inter se in between two or more teachers. In the light of the said, he argues that admittedly both the petitioner and the respondent no. 7 were promoted on 13.03.2012 and admittedly, the length of service of the petitioner from the date of the substantive appointment was more than that of the respondent no. 7 and in that case, the claim of the petitioner was rightly acknowledged by the Management and duly recommended. He further argues that in the impugned order, the date of taking charge has been referred to for the purpose of determining the seniority, which is contrary to the mandate of Regulation 3(bb) and Regulation 3 (g) of the Chapter-II. He also argues that although there is a dispute with regard to taking charge, however, even for the sake of argument, the same is treated to be correct, the same would have no relevance in view of the crystal clear provisions contained in Regulation 3(bb) and the Regulation 3(g) of the Chapter-II. 15. In sum and substance, on the basis of the submissions recorded above, he argues that it is the petitioner, who is the senior most teacher and should be permitted to continue as an ad hoc Principal and the order impugned is contrary to the mandatory scheme and thus, is liable to be quashed. He also argues that the petitioner was senior in age to the respondent no. 7, which is also relevant in view of the proviso to Regulation 3(bb) of the Chapter-II. 16. Sri R.D. Shahi, learned Counsel appearing on behalf of the respondent no. 7, on the other hand, has filed a short counter affidavit and places on record, a copy of the seniority list allegedly sent by the Committee of Management on 10.05.2016 wherein the respondent no. 7 is shown to be senior to the petitioner on the basis of the date of promotion, which in the case of respondent no. 7 is recorded as 13.03.2012 whereas in the case of the petitioner, it is recorded as 14.03.2012. It is also argued that on the basis of the said seniority list, the claim of the respondent no. 7 for the appointment to the post of ad hoc Principal was wholly justified and the impugned order does not require any interference as substantive justice has been done. It is also argued that on the basis of the said seniority list, the claim of the respondent no. 7 for the appointment to the post of ad hoc Principal was wholly justified and the impugned order does not require any interference as substantive justice has been done. He further argues that the impugned order itself records that no seniority list was submitted by the Committee of Management, thus, the respondent was well within his right to exercise the power as are vested by virtue of Section 18(2) of the 1982 Act. He thus argues that the writ petition is liable to be dismissed. 17. Sri Ran Vijay Singh, learned Counsel appearing on behalf of the DIOS, on the basis of the instructions, which has been handed over across the bar, argues that the Committee of Management did not furnish any seniority list, despite repeated requests. He further argues that against the same impugned order, the petitioner has already approached the Joint Director of Education through his representation dated 05.08.2023, as such, the petitioner cannot be permitted to avail simultaneous remedies before two different forums and accordingly, the writ petition should be dismissed on that ground also. In short, he tries to justify the order by arguing that the Committee of Management failed to fulfill the requirement which are stipulated in Section 18(1) and thus, the exercise of powers under Section 18(2) is justified. 18. Sri G.C. Verma, in rejoinder to the arguments raised by the Counsel for the respondents, argues that in terms of the provisions of Section 18 of the 1982 Act as well as the provisions as contained in Chapter-II, although an appeal is provided with regard to the determination of seniority, the same is confined to any order of determination of seniority passed by the Committee of Management and no appeal or representation or any other remedy is provided either in the Act or in the Regulations in respect of the passing of the order of the nature impugned as has been done in the present case. He argues that the communication dated 05.08.2023 can at best be treated as complaint against the action of the DIOS and cannot be equated with the remedy available under law in respect of an order passed under the statutory provisions. He argues that the communication dated 05.08.2023 can at best be treated as complaint against the action of the DIOS and cannot be equated with the remedy available under law in respect of an order passed under the statutory provisions. He further argues that remedy of appeal is a creation of the statutes and unless specifically provided for cannot be termed as a remedy against an order and thus, the writ petition would lie and has been rightly filed by the petitioner. 19. Considering the submissions made at the bar and recorded above and after going through the pleadings including the writ petition, the short counter affidavit as well as the instructions handed over by Shri Ran Vijay Singh, what emerges is that the DIOS has exercised the power vested in him under Section 18(2) of the 1982 Act without recording that any request or appointment was made by the Committee of Management which is required under Section 18(1). The impugned order merely records that the seniority list despite repeated requests has not been furnished by the Committee of Management. The same is erroneous as the power under sub-Section (2) of Section 18 can be exercised only when the Management fails to promote the senior most teacher, which is not the case in the present scenario where the Management had sent a request for attestation of signatures of the petitioner. The order is further bad in law, inasmuch as, while deciding the seniority, the principle as laid down in Regulation 3(bb) read with Regulation 3(g) have been completely overlooked by the DIOS as he has determined the seniority based upon the date of taking charge, which is neither contemplated nor provided for either under Regulation 3 (bb) or the Regulation 3(g). Admittedly the petitioner is senior to the respondent no. 7 in terms of the age, the appointment of the petitioner in the L.T. Grade being prior in point of time than the respondent no. 7 and both the petitioner and the respondent no. 7 were promoted on the same date to the post of lecturer i.e. on 13.03.2012, thus, these aspects ought to have been considered, even if, for the sake of argument, it is presumed that the DIOS has passed the order under Section 18(2) which clearly has not been done. 7 and both the petitioner and the respondent no. 7 were promoted on the same date to the post of lecturer i.e. on 13.03.2012, thus, these aspects ought to have been considered, even if, for the sake of argument, it is presumed that the DIOS has passed the order under Section 18(2) which clearly has not been done. The order being contrary to the mandate of Section 18(1), 18(2) and in complete violation of the mandate of provisions of Regulation 3 (bb) and Regulation 3 (g) of Chapter-II cannot be sustained and is quashed. 20. The matter is remitted to the DIOS to pass an order on the request made by the Committee of Management with regard to the attestation of signatures. 21. The respondent no. 7 would be at liberty to challenge any seniority list sent by the Management in terms of the powers of appeal conferred under Regulation 3(f) of the Chapter-II, if he is so advised. 22. Needless to say that the final order passed on a challenge in appeal, if any, shall govern the issue with regard to the appointment of the ad hoc Principal in future. The DIOS shall pass fresh orders as directed above within a period of two weeks. 23. In the meanwhile, the petitioner, who is prima-facie senior to the respondent no. 7 shall continue to work as officiating Principal till the fresh order is passed as directed above. 24. In view above, the writ petition stands allowed.