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Madhya Pradesh High Court · body

2025 DIGILAW 442 (MP)

Archana Jain v. State of Madhya Pradesh

2025-08-05

ASHISH SHROTI

body2025
ORDER : Ashish Shroti, J. 1. The petitioner is aggrieved by the order dated 27/02/2025 (Annexure- P/1), whereby respondent no.3 has directed handing over of current charge of the post of Principal of the college to respondent no.5. 2. The facts necessary for decision of this case are that the petitioner is working as Assistant Professor (Economics) in S.S.L. Jain P.G. College, Vidisha (M.P.) which is aided by the State Government. One Dr. (Smt.) Shobha Jain was working as in-charge Principal of this college and was due to retire w.e.f. 28/02/2025. The Rajmata Vijaya Raje Scindia Girls P.G. College, Vidisha is the lead college in respect of S.S.L. Jain P.G. College, Vidisha (M.P.). In view of nearing retirement of Dr. (Smt.) Shobha Jain, respondent no.6 made recommendation for giving charge of the post of the Principal of the college to the petitioner in view of the fact that she is the senior most Assistant Professor in the college. It appears that the petitioner also made application to the State Government for grant of charge of the post of Principal to her. In response, Under Secretary, Higher Education Department wrote to respondent no.3 on 24/02/2025 (Annexure-P/3) to initiate the process for grant of charge of the post of Principal in accordance with rules. 3. The Additional Director, Higher Education, Bhopal-Narmadapuram Division, Bhopal- respondent no.7, passed an order on 27/02/2025 (Annexure-P/4) thereby directing grant of charge of the post of the Principal to the petitioner on account of retirement of Dr. (Smt.) Shobha Jain. It is stated in the said order that drawing and disbursing power shall continue to remain with respondent no.6 i.e. Principal of lead college. In compliance of this order, the petitioner offered her joining on the post of Principal on 28/02/2025 (Annexure- P/4-A). 4. It is further gathered from the record that the meeting of the Governing Body of the Society was held on 28/01/2025, wherein a resolution was passed to give charge of the post of Principal of the college to respondent no.5. This resolution was passed keeping in view the punishment which was imposed on the petitioner on account of certain charges of indecent behaviour. This resolution was passed keeping in view the punishment which was imposed on the petitioner on account of certain charges of indecent behaviour. In view of resolution of Governing Body, the respondent no.3 wrote to respondent no.7 on 27/02/2025 itself (Annexure-P/5) requesting him to cancel the order dated 27/02/2025 (Annexure-P/4) on the ground that the said order is in contravention with the resolution of Governing Body of the society. 5. Simultaneously, respondent no.3 passed another order on 27/02/2025 itself thereby directing the charge of the post of the Principal of the college to be given to respondent no.5 (Annexure -P/1). The petitioner has filed this petition against this order passed by respondent no.5. 6. The respondent no.4 had appeared on caveat. The respondents no.1, 2, 6 & 7 were represented by the Government counsel while respondents no.3, 4 & 5 appeared suo-moto through their counsel. This Court on 20/06/2025 granted time to respondents to file reply within a period of two weeks. The time was further granted on 22/07/2025 and looking to the urgency involved in the case, the matter was directed to be listed on 05/08/2025. However, reply has been filed by respondent no.3 alone. Since the issue raised by the petitioner is with regard to the authority of respondent no.3 to pass order dated 27/02/2025 (Annexure-P/1), the matter has been heard finally with the consent of the parties. 7. Considered the arguments of counsel for the parties and perused the record. 8. The learned Senior counsel appearing for respondent no.3 raised a preliminary objection that the petitioner cannot file a writ petition against the action of respondent no.3 of giving the charge of the post of Principal to respondent no.5. He placed reliance upon the Apex Court judgment in the case of State of Haryana Vs. S.M. Sharma and others reported in 1993 Supp. (3) SCC 252. It was the case where the petitioner therein was relieved of the current charge of the Executive Engineer on account of posting of other officer as Executive Engineer. Since the petitioner therein was holding only the current charge of the post, the Apex Court held that no one has a right to ask for or stick to a current duty charge and since no financial loss or prejudice of any kind is caused to the petitioner, he had no cause of action to invoke the writ jurisdiction of the High Court. 9. The aforesaid pronunciation of law by the Apex Court is not disputed. However, in the present case the petitioner is the senior most Assistant Professor in the college. She has challenged the authority of respondent no.3 in passing the impugned order which is in contravention to the order passed by respondent no.7 who is otherwise competent to pass the same in view of circular dated 25/08/2021 (Annexure-P/8). Thus, the present is a case wherein the authority of respondent no.3 is under challenge. Further, being the senior Assistant Professor, she has a right to hold the post of Principal, if there is no cogent reason for not giving her charge. Therefore, this Court is not inclined to dismiss the petition on technical ground of maintainability as raised by the counsel for respondent no.3. 10. The learned Senior counsel further submitted that on the date when the impugned order was passed i.e. on 27/02/2025, the petitioner was suffering punishment and therefore, she was not suitable for holding the charge of the post of Principal of the college. He further submitted that presently also, the petitioner is facing departmental enquiry pursuant to the charge-sheet dated 09/07/2025 and therefore, the charge of the post of Principal of the college cannot be given to an incumbent who is suffering punishment and is facing departmental enquiry. 11. The objection so raised on behalf of respondent no.3 is considered. 12. It is gathered from the records that the petitioner was inflicted with a punishment of stoppage of two increments with immediate effect vide order dated 22/11/2011. Thus, the rigor of punishment was over after lapse of two years and regular increments were released in her favour with effect from July' 2021 as is evident from the copy of order dated 30/07/2021 placed on record at page no.17 of the writ petition. Thus, the objection that the petitioner was under the rigor of punishment on 27/02/2025 is found to be factually incorrect. 13. So far as the other objection regarding facing of departmental enquiry by the petitioner is concerned, it is seen that the aforesaid order of punishment dated 22/11/2018 was challenged by the petitioner before this Court in W.P. No.288/2019 and vide order dated 04/04/2025 (Annexure- R/3-1), the said punishment order was set-aside. The respondent no.3, being aggrieved, challenged the order passed in writ petition by filing W.A. No.1258/2025. The respondent no.3, being aggrieved, challenged the order passed in writ petition by filing W.A. No.1258/2025. The Division Bench of this Court disposed off the appeal on 15/05/2025 (Annexure P/7), whereby the order passed by the Single Judge was maintained with slight modification that the liberty was granted to the management of the college to initiate department enquiry from the stage when the show cause notice was issued to the petitioner. Pursuant to the liberty granted by this Court, charge-sheet has been issued to the petitioner on 09/07/2025 and further proceedings are pending. 14. Considering the aforesaid facts, the objection of respondent no.3 that on 27/02/2025, the petitioner was facing departmental enquiry is also found to be incorrect inasmuch as charge sheet has been issued to her on 09/07/2025. 15. Now, the issue with regard to authority of respondent no.3 and for that matter respondent no.7 to direct giving charge of the post of Principal of the college is to be examined. 16. The petitioner has placed reliance upon the instructions issued by the office of the Commissioner, Higher Education Department, Bhopal (M.P.) vide circular dated 25/08/2021 (Annexure-P/8). The office of Commissioner has issued the instructions to all the Government lead colleges in relation to the matters regarding grant-in-aid and other establishment related works to be followed by all grantee non-government colleges. The learned counsel for the petitioner specifically placed reliance upon Clause-11 of the said circular which authorizes the Regional Additional Director of Higher Education Department to issue the order in relation to giving charge of the post of Principal of aided colleges. Clause-11 was thereafter modified vide circular dated 08/09/2021. For purposes of ready reference, Clause-11 of the circular dated 25/08/2021 as modified by circular dated 08/09/2021 is reproduced below:- 17. A bare perusal of the aforesaid Clause-11, it is evident that the Regional Additional Director is competent to issue order in relation to giving charge of the post of Principal. However, the aforesaid authority is not absolute and the Regional Additional Director is required to act upon the recommendation made by the Governing Body of the college. He is also required to pass the order keeping in view the seniority of the concerned officer as also the merits including any criminal case, court case, proposed suspension, any serious complaints against such officer. 18. He is also required to pass the order keeping in view the seniority of the concerned officer as also the merits including any criminal case, court case, proposed suspension, any serious complaints against such officer. 18. The learned Senior counsel for the petitioner submitted that circular dated 25/08/2021 as also circular dated 08/09/2021 have been passed without authority of law inasmuch as there is no enabling provision which authorizes the office of the Commissioner, Higher Education Department to issue such instructions. However, since the validity of aforesaid circular is not under challenge in the instant petition, the objection raised by learned Senior Counsel cannot be the subject matter of consideration in this petition. Therefore, the objection raised by the counsel for respondent no.3 is not entertainable in the present case. This Court is required to adjudicate the issue as per the provisions of circular, dated 25/08/2021 as also circular dated 08/09/2021. 19. Even otherwise, the coordinate bench of Court has dealt with somewhat similar issue in the case of Kusum Bai Jain Girls College, Bhind Vs. State of M.P. & others (W.P. No.2205/2017) wherein in para 13 this Court held as under :- "13. In the present case, admittedly petitioner/college has given current charge of principal to a librarian- Smt. Asha Jain, who according to the petitioner, is the senior most employee of the college and according to petitioner itself, the said arrangement is temporary. Petitioner/ institution is a grant-in-aid institution and therefore, grant as well as service conditions of its employees are governed by the Act of 1978. Provisions of the Act of 1978 coupled with Madhya Pradesh Ashasakiya Shikashan Sanstha Anudan Niyam, 2008 gives sufficient power to the State Government to control the affairs of the grant-in-aided institutions. Once the State Government is giving grant-in-aid to the petitioner/institution then it is incumbent upon the petitioner to follow the rules, regulations and instructions of the State Government. The respondents/State have issued instructions from time to time in which it has been categorically directed to all grant-in-aided institutions (and their governing bodies) to handover the charge of the principal to the senior most professor/ assistant professor and not to a professor or assistant professor who is not senior most and/ or who has attained 62 years of age. The respondents/State have issued instructions from time to time in which it has been categorically directed to all grant-in-aided institutions (and their governing bodies) to handover the charge of the principal to the senior most professor/ assistant professor and not to a professor or assistant professor who is not senior most and/ or who has attained 62 years of age. Being the grant-in-aided institution, petitioner/ college has to comply with the directions of the State Government regarding management of grant and regarding giving charge to the principal" 20. In view of the aforesaid, the authority of Regional Additional Director is to be examined keeping in view the provisions of the circular dated 25/08/2021 and 08/09/2021. 21. As observed herein above, the power of Regional Additional Director to issue order giving charge of the post of Principal of the college is subject to the recommendation made by the Principal of lead college as also the recommendation made by the Chairman of the Governing Body of the college. In the present case, the Principal of lead college i.e. respondent no.6 has made recommendation in favour of the petitioner as is evident from the communication dated 21/02/2025 (Annexure-P/2) while the Chairman of Governing Body of the college has made recommendation in favour of respondent no.5. The resolution of the Governing Body has been placed on record at page no.28 of the writ petition. The Regional Additional Director has passed the order in favour of the petitioner on 27/02/2025 (Annexure - P/4). However, it is not clear as to whether he has considered the recommendations made by respondent no.6 as well as respondent no.3. Further, the impugned order, dated 27.02.2025, (Annexure P/1) passed by respondent no.3 in favour of respondent no.5 is also without jurisdiction inasmuch as the authority to issue such order lies with Regional Additional Director, Higher Education Department. 22. In view of the aforesaid discussion of facts and law, this Court is of considered opinion that the Regional Additional Director of Higher Education Department is required to pass fresh order after taking into account the recommendations made by respondent no.3 & 6. He is also required to consider other aspects as provided under Clause 11 of circular dated 25/08/2021 and 08/09/2021. He is also required to consider other aspects as provided under Clause 11 of circular dated 25/08/2021 and 08/09/2021. This petition is accordingly disposed off directing respondent no.7/Regional Additional Director, Higher Education Department, to re-visit the entire matter and pass a fresh order keeping into account the recommendations made by respondent no.3 & 6 as also the available facts and circumstances of the case. Admittedly, the respondent no.5 is presently holding the charge of post of Principal of the college pursuant to impugned order, dated 27.02.2025, (Annexure P/1). Therefore, it is directed that the same arrangement would continue till the respondent no.7 passes a fresh order. 23. The respondent no.7 is directed to pass fresh order, as directed hereinabove, within a period of 45 days from the date of submission of certified copy of this order. With the aforesaid observations, this writ petition is disposed off.