Allahabad High Court
C/M Kunwrani Prema Satyaveera Kanya ... vs State Of U.P. And Others on 9 January, 2012
Author: Ran Vijai Singh
Bench: Syed Rafat Alam, Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Chief Justice's Court Case :- SPECIAL APPEAL No. - 44 of 2012 Petitioner :- C/M Kunwrani Prema Satyaveera Kanya Inter College Respondent :- State Of U.P. And Others Petitioner Counsel :- Bheem Singh Respondent Counsel :- C.S.C., Amit Kr. Srivastava Hon'ble Syed Rafat Alam, Chief Justice Hon'ble Ran Vijai Singh, J.
This intra-court appeal is preferred by the Committee of Management against the order of the learned Single Judge dated 05.08.2011 dismissing appellant's Writ Petition No. 36168 of 2010 for quashing the order of the District Inspector of Schools dated 13.04.2010 whereby the signature of respondent no.5, Smt. Aruna Garg is attested as ad hoc Principal of the institution in question.
The short facts giving rise to this appeal are that Kunwrani Prema Satyaveera Kanya Inter College (hereinafter referred to as the 'institution'), is a recognized institution under the provisions of the Intermediate Education Act, 1921 and is imparting education upto intermediate level. The payment of salary to the teachers and other employees of the institution is governed under the provisions of the Uttar Pradesh High Schools and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971. As per the appellant's version, in the seniority list published in the month of April, 2005, one Smt. Sangeeta Gupta was shown seniormost teacher of the institution in question and respondent no.5 was junior to her. It appears that again in another seniority list also circulated in the year 2008, respondent no.5 was shown junior to Smt. Sangeeta Gupta. It is significant to note that respondent no.5 did not challenge the aforesaid two seniority lists before any authority. However, when the regular Principal of the institution retired on 30.06.2009 and the signature of Smt. Sangeeta Gupta was attested as ad hoc Principal of the institution, the respondent no.5 challenged the same before this Court by filing Writ Petition No. 47714 of 2009.
The learned Single Judge, after hearing learned counsel for the parties, was of the view that the dispute regarding inter se seniority between respondent no.5 and Smt. Sangeeta Gupta, ought to have been decided by the Committee of Management of the institution (appellant) and, thus, disposed of the writ petition vide order dated 14.09.2009 with the direction to the appellant to decide the seniority within 10 days from the date of production of a certified copy of the order. It was further directed that in the event of default by the Committee of Management in deciding the seniority, the District Inspector of Schools shall pass appropriate order superceding the Management and Authorized Controller shall be appointed to resolve the dispute of seniority. It was further directed that any appointment made in the meantime shall abide by the order to be passed by the Committee of Management/Authorised Controller pursuant to the order of the learned Single Judge dated 14.09.2009. Pursuant to the aforesaid direction of this Court, the appellant decided the seniority dispute vide order dated 29.10.2009 wherein the respondent no.5 is found junior to Smt. Sangeeta Gupta. Aggrieved respondent no.5 filed an appeal before the Joint Director of Education 12th, Region Moradabad - respondent no.3, which was decided by order dated 12.04.2010 wherein respondent no.5 was held senior to Smt. Sangeeta Gupta. The signature of respondent no.5 was, accordingly, attested by the District Inspector of Schools, respondent no.4 on the very next date, i.e. 13.04.2010.
Aggrieved Smt. Sangeeta Gupta, therefore, filed Writ Petition No. 26608 of 2010 before this Court wherein vide order dated 11.05.2010, notices were issued to respondents inviting counter affidavit. However, the appointment of respondent no.5 as ad hoc Principal was directed to abide by the order to be passed in that writ petition. The appellant also challenged the order of the District Inspector of Schools dated 13.04.2010 by filing Writ Petition No. 36168 of 2010, where from this appeal has arisen, on the ground, inter-alia, that as per the provisions contained in Section 18 (1) of the U.P. Secondary Education Services Selection Boards Act, 1982 (in short, 'the Act'), it is the Committee of Management of the institution who is empowered to fill up the vacancy caused on account of retirement which remained vacant for more than two months though it was notified to the Board and, therefore, the senior most teacher is to be promoted as ad hoc Principal as provided in sub-section (1) of Section 18 of the Act by the Committee of Management. However, in the instant case, the District Inspector of Schools attested the signature of respondent no.5 the very next day of the decision of respondent no.3, i.e. 13.04.2010 in exercise of powers under sub-section (2) of Section 18 of the Act without waiting for the decision of the Committee of Management. The power under sub-section (2) of Section 18 of the Act could have been exercised by the District Inspector of Schools only when the Committee of Management had failed to promote the seniormost teacher under sub-section (1) of Section 18 of the Act, whereas in the case in hand, without there being any complaint from respondent no.5 that the appellant-Committee of Management is delaying the matter in recommending and forwarding her name to the District Inspector of Schools for attestation of her signature as ad hoc Principal and without there being any recommendation by the Committee of Management, the District Inspector of Schools immediately passed the order under sub-section (2) of Section 18 of the Act attesting the signature of respondent no.5 which could not have been done, unless it is found that the Committee of Management was delaying the matter arbitrarily and illegally. In short, the case of the appellant is that it is the Committee of Management who would decide about the ad hoc Principal and only when it fails to appoint anyone as ad hoc Principal within two months, the District Inspector of Schools will suo motu exercise power appointing the seniormost teacher as ad hoc Principal. The learned Single Judge, however, dismissed the writ petition merely on the ground that since Smt. Sangeeta Gupta, the person aggrieved has already filed Writ Petition No. 26008 of 2010 and also obtained an interim order, the Committee of Management cannot subsequently file writ petition to assail the same order without challenging the decision taken by the Regional Level Committee, which is impugned in this appeal.
Sri Bheem Singh, learned counsel for the appellant, relying on Section 18 (1) of the Act, vehemently contended that undisputedly the power to initiate the process of appointment of an ad hoc Principal of an institution, is primarily vested with the Committee of Management and in the event, the Committee of Management fails to appoint ad hoc Principal, the District Inspector of Schools can take suo motu action in that regard under Section 18 (2) of the Act. It is contended that in the facts of the case and under the provisions of the Act, it was not open for the District Inspector of Schools to attest the signature of respondent no.5 hurriedly without giving reasonable time to the appellant to take decision and make recommendation for appointment of the ad hoc Principal. He further submits that in the matter of appointment of ad hoc Principal or Head Master of the institution, seniority is not the only criteria nor the Committee of Management is bound to send the name of seniormost teacher only, if he is unsuitable and his appointment as Principal would be detrimental to the interest of the institution.
On the other hand, Sri Anil Bhushan, learned counsel appearing for respondent no. 5 while refuting the contention, submitted that once the Joint Director of Education has found Smt. Aruna Garg-respondent no. 5 senior to Smt. Sangeeta Gupta, then, natural corollary would be that she should be appointed as ad hoc Principal and taking that aspect into consideration, the District Inspector of Schools has attested her signature. His contention is that the Committee of Management since has already exercised his power by recommending the name of Smt. Sangeeta Gupta for appointment as ad hoc Principal, therefore, the power having already been exercised, directing for fresh resolution or recommendation from the Committee of Management (appellant) would be a futile exercise. Hence, the learned Single Judge has rightly dismissed the writ petition.
Dr. Y.K. Srivastava, learned Standing Counsel appearing for the State respondents has fairly submitted that there can be no quarrel with the proposition that the Committee of Management can only appoint the seniormost teacher of the Institution and in appropriate cases if the character roll entry of the seniormost teacher and the antecedent are found to be adverse, he can be by-passed. However, the seniormost teacher can only be ignored or by-passed in exceptional cases where he is found to be facing grave charges detrimental to the interest of the Institution or where a seniormost teacher suffers from such serious physical disability that he cannot perform the function of the Principal properly. He further placed reliance on the judgment of this Court in Tribhuwan Mishra Vs. District Inspector of Schools, Azamgarh & Ors., (1992) 1 UPLBEC 716.
We have considered the submission made by the learned counsel for the parties and perused the records and are of the view that the learned Single Judge fell in error in dismissing the writ petition merely on the ground that the impugned order had already been assailed by Smt. Sangeeta Gupta in another writ petition wherein interim order has also been obtained, the Committee of Management (appellant) cannot file another writ petition challenging the same order. The ground on which the appellant has assailed the order of the District Inspector of Schools dated 13.04.2010 is different to that raised by Smt. Sangeeta Gupta. The challenge made on behalf of the appellant is that under the relevant Statute, it is the Committee of Management who appoints the ad hoc Principal of an institution where a requisition has already been sent to select and appoint Principal but no appointment is made within two months. However, only where the Committee of Management fails to perform his duties by promoting the seniormost teacher or a suitable teacher of the institution as an ad hoc Principal to discharge the function of the Principal till the regular appointment on the basis of the recommendation made by the Board, sub-section (2) of Section 18 of the Act authorised the District Inspector of Schools to promote the seniormost teacher as ad hoc Principal. However, the ad hoc appointment made under sub-sections (1) and (2) of Section 18 of the Act shall come to an end after joining of the candidate recommended by the Board. Section 18 of the Act reads as under:-
"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 seniormost 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.
(2) Where the Management fails to promote the seniormost teacher under sub-section (1), the Inspector shall himself issue the order of promotion 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 in pursuance of such order of promotion.
(3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of Principal or the Headmaster, as the case may be, due to any act or omission on the part of the Management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.
(4) Every appointment of an ad hoc Principal or Headmaster under sub-section (1) or sub-section (2) shall cease to have effect from when the candidate recommended by the Board joins the post."
From a careful reading of Section 18 (1), it is apparent that, first of all, it is the Committee of Management, who is competent to appoint an ad hoc Principal and in the event of failure on the part of the Committee of Management, the power can be exercised under sub-section (2) of Section 18 of the Act by the District Inspector of Schools.
Therefore, in the facts and circumstances of the case, it has rightly been urged on behalf of the appellant that in the absence of any reasonable ground or basis showing that there was delay on the part of the Committee of Management in appointing the seniormost teacher as ad hoc Principal, the District Inspector of Schools could not have exercised his power under sub-section (2) of Section 18 of the Act and, thus, the order of the District Inspector of Schools, being apparently in violation of the provisions of the Act, the appellant being the Committee of Management is aggrieved party and its right given under the Act has wrongly been usurped, hence, could maintain the writ petition.
The issue as to who could be said to be the "person aggrieved" is no more res integra as the Apex Court as well as this Court in a catena of decisions, while considering as to who could be said to be the "person aggrieved", held that although the meaning of expression "person aggrieved" may vary according to the context of the Statute and facts of the case nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance; a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongfully refused something, or wrongfully affected his title to someone.
In M.S. Jayaraj Vs. Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552, the Supreme Court considered the matter at length and placing reliance upon a large number of its earlier judgments including the Chairman, Railway Board & Ors., Vs. Chandrima Das (Mrs.) & Ors., AIR 2000 SC 988; held that the Court must examine the issue of locus standi from all angles and the petitioner should be asked to disclose as what is the legal injury suffered by him.
The term "person aggrieved" was also considered and defined in Re: Sidebotham, (1880) 14 Ch. D. 458, wherein it has been observed as under :-
"The words ''person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something."
In K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi & Ors., AIR 1974 SC 2177, the Supreme Court examined the case of a resident of a locality where a cinema hall was to be constructed contrary to the Building Town Planning Scheme. The resident was held to be entitled to maintain writ on the ground that the residential area would stand spoiled by the construction in violation of the statutory provisions and the municipal authorities owed a public duty and an obligation under the Statute not to allow the construction of a cinema hall in a residential area. The Supreme Court observed as under:-
"... The question whether an individual who is one of a class for whose benefit such an obligation is imposed can or cannot enforce performance by an action must depend on the purview of the legislature in the particular statute. Injury may be caused either by the fulfillment of the duty cast by statute or by failure to carry it out or by negligence in its performance.
In order to succeed in an action for damages for breach of statutory duty the plaintiff must establish a breach of a statutory obligation which, on the proper construction of the statute was intended to be a ground of civil liability to a class of persons of whom he is one. He must establish an injury or damage of a kind against which the statute was designed to give protection."
In The Nagar Rice and Flour Mills & Ors., Vs. N. Teekappa Gowda & Bros. & Ors., AIR 1971 SC 246, the Supreme Court rejected the claim of an existing Mill owner that in case any other Mill is shifted to the locality wherein his Mill is situated, he would be adversely affected, therefore, has a locus standi to maintain the suit/writ. The Supreme Court held that the right to carry on business being fundamental right guaranteed under Article 19 (1) (g) of the Constitution, its exercise is subject to reasonable restrictions imposed by the law in the interest of general public under Article 19 (6) (i) of the Constitution.
The "person aggrieved" means a person who is wrongfully deprived of his entitlement which he is legally entitled to receive and it does not include any kind of disappointment or personal inconvenience. "Person aggrieved" means a person who is injured or he is adversely affected in a legal sense. (Vide K.N. Lakshminarasimaiah Vs. Secretary, Mysore S.T.A.T., (1966) 2 Mys. L.J. 199).
Whether a person is injured in strict legal sense, must be determined by the nature of the injury considering the facts and circumstances involving in each case. A fanciful or sentimental grievance may not be sufficient to confer a standi to sue upon the individual. There must be injuria or a legal grievance, as the law can appreciate and not a stat pro ratione valuntas reasons.
In Messrs. Swami Motor Transport (Private) Ltd. Vs. Messrs. Raman & Raman (Private) Ltd. & Ors., AIR 1961 Mad. 180, a Full Bench of Madras High Court, while considering the provisions of Madras Motor Vehicles Act, considered the issue and approved the law laid down in The King Vs. Richmond Confirming Authority, (1921) 1 KB 248; and The King Vs. Groom & Ors., 1901 (2) KB 157, and laid down the principle as under:-
"The true principle is to determine whether the applicant has an interest distinct from the general inconvenience which may be suffered by the law being wrongly administered."
A Constitution Bench of the Supreme Court in State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12, held that the existence of a legal right in favour of the writ petitioner is the foundation for the exercise of jurisdiction under Article 226 of the Constitution. In Kalyan Singh Vs. State of U.P. & Ors., AIR 1962 SC 1183, the Apex Court enunciated the proposition that the right to maintain a writ postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested.
In Ghulam Qadir Vs. Special Tribunal & Ors., (2002) 1 SCC 33, the Supreme Court considered the similar issue and observed as under:-
"There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea change with the development of constitutional law -------------In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi."
However, in Mehsana District Central Cooperative Bank Ltd & Ors., Vs. State of Gujarat & Ors, AIR 2004 SC 1576, the Apex Court observed that where there are allegations of violation of statutory rules which have been brought to the notice of the authorities and if the authorities concerned fail to perform their statutory obligations, any aggrieved citizen can bring the inaction to the notice of the Court, which may pass the appropriate orders. Similarly, the locus of the University teacher for challenging the appointments made illegally and irregularly, in contravention of the University Statute has been recognized by the Supreme Court in Dr. ( Mrs.) Meera Massey Vs. Dr. S.R. Mehrotra & Ors.,AIR 1998 SC 1153, but he should be genuinely concerned to rectify the wrongs without "any personal animosity against anyone." It should not be for "personal gain" and he must have "bona fide feelings". His action should not be "politically motivated" nor for "publicity".
The submission of the learned Counsel for the respondent no. 5 that once the power has been exercised by the Committee of Management and the appointment has been made on the post of Principal on ad hoc basis, now after deciding the seniority dispute, it was not open for the Committee of Management to re-exercise the power under sub-section (1) of Section 18 of the Act, is misconceived. The earlier decision recommending the name of Smt. Sangeeta Gupta since was not approved, as the respondent no.3 found respondent no.5 senior to her, the Committee of Management, i.e. appellant is required to take fresh steps under sub-section (1) of Section 18 of the Act. In the matters of appointment of ad hoc/officiating Principal of an institution, the seniority is not the only criteria and even the seniormost teacher may not be given officiating charge of the office of the Principal if he is not found suitable for the post or his appointment as such would be detrimental to the interest of the institution etc. However, for denying the seniormost teacher from holding the charge of the office of the ad hoc Principal, there must be strong reason and the same cannot be denied on mere abrasion in the character roll or sour relationship with the Committee of Management. The Committee of Management, apart from the seniority, can also look into the antecedent of the seniormost teacher before appointing him as ad hoc Principal. The above view finds support from a Division Bench judgment of this Court in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region I, Meeurt Division, Meerut & Ors., [2007(2) ESC 987 (All) (DB)] in which one of us (S. Rafat Alam, J. as then was) was a Member, where the Division Bench taking note of the earlier decisions of this Court in Km. Vandana Banerji Vs. Administrator, Arya Kanya Pathshala, 1990(1) UPLBEC 116, Tribhuvan Mishra Vs. DIOS Azamgarh, 1992(1) UPLBEC 716, Dhanesh Kumar Sharma Vs. State of U.P., 2004 (3) ESC 1884 (All) has held that seniormost teacher shall have right to officiate as a Principal unless such right is denied for justified reasons. It is also observed that the seniormost teacher can be unsuited for promotion/appointment on ad hoc basis on the post of Principal only after disclosing the reasons after notice. The Apex Court in the case of Dr. Mahak Singh Vs. Chancellor, Ch. Charan Singh University, Meerut & Ors., (1996) 11 SCC 760 has also taken the same view although dealing with the appointment of ad hoc Principal in the post graduate college, wherein, also there was almost similar provisions to appoint seniormost teacher on the post of Principal on ad hoc basis. The Apex Court has declined to grant relief to the seniormost teacher on the ground that he was facing trial under Section 302 IPC.
In view of foregoing discussions, we find that the power to appoint an ad hoc Principal is primarily vested with the Committee of Management and, therefore, the action of the District Inspector of Schools in attesting the signature of respondent no. 5 immediately after passing of the order dated 12.4.2010 by the respondent no. 3 on the ground that the respondent no.5 happens to be the seniormost teacher can not be approved as the same has been passed in haste without giving reasonable time to the Committee of Management to send the recommendation. Therefore, in the facts of the case and in view of the enunciation of law, it is difficult to hold that the appellant is not aggrieved party.
Besides that, where a Statute requires to do certain thing in a particular method, then that thing must be done in that very method and other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid legal proposition is based on a legal maxim " Expressio unius est exclusio alterius", meaning thereby that 'if a Statute provides for a thing to be done in a particular manner, then it has to be done in that very manner and other manner and procedure is ordinarily not permissible'. (Vide Taylor Vs. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed Vs. King Emperor, AIR 1936 PC 253; Deep Chand Vs. State of Rajasthan, AIR 1961 SC 1527; Haresh Dayaram Thakur Vs. State of Maharashtra & Ors., (2000) 6 SCC 179; Dhanajaya Reddy Vs. State of Karnataka etc. etc., (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633).
It is also well settled that if any thing has not been done in the manner provided for under the Statute and the Statute has provided a consequence for non-performance of such act as provided for, then those provisions are mandatory and not directory. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose behind it to achieve. It may also be necessary to find out the intention of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application.
The Supreme Court in the case of Dattatraya Moreshwar Vs. The State of Bombay & Ors., AIR 1952 SC 181 has observed that a law which creates public duty is directory but if it confers private rights, it is mandatory. Relevant passage from this judgment is quoted below:-
"It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done."
A Constitution Bench of the Hon'ble Supreme Court, in State of U.P. & Ors., Vs. Babu Ram Upadhya, AIR 1961 SC 751, while considering the issue as to whether a provision contained in a Statute is mandatory or directory, observed as under:-
"For ascertaining the real intention of the Legislature, the court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."
In Raza Buland Sugar Co. Ltd., Rampur Vs. Municipal Board, Rampur, AIR 1965 SC 895; and State of Mysore Vs. V.K. Kangan, AIR 1975 SC 2190, whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other.
In Sharif-Ud-Din Vs. Abdul Gani Lone, AIR 1980 SC 303, the Supreme Court, while considering the provisions of Sub-section (3) of Section 89 of the J&K Representation of People Act, 1957, held that the difference between a mandatory and directory rule is that the former requires strict observance while in the case of latter, substantial compliance of the rule may be enough and where the statute provides that failure to make observance of a particular rule would lead to a specific consequence, the provision has to be construed as mandatory. The Apex Court held as under:-
"In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted. If the object of the law is required to be defeated by non-compliance with it, it has to be regarded as mandatory.....Whenever the statute provides that a particular act is to be done in a particular manner and also lays down that the failure to compliance with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."
Similar view has been reiterated in Dinkar Anna Patil & Anr. Vs. State of Maharashtra & Ors., (1999) 1 SCC 354; Shashikant Singh Vs. Tarkeshwar Singh, AIR 2002 SC 2031; Balwant Singh & Ors., Vs. Anand Kumar Sharma & Ors., (2003) 3 SCC 433; Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. & Ors., AIR 2003 SC 511; and Chandrika Prasad Yadav Vs. State of Bihar & Ors., AIR 2004 SC 2036).
In B.S. Khurana & Ors., Vs. Municipal Corporation of Delhi & Ors., (2000) 7 SCC 679, the Supreme Court considered the provisions of the Delhi Municipal Corporation Act, 1957, particularly those dealing with transfer of immovable property owned by the Municipal Corporation. After considering the scheme of the Act for the purpose of transferring the property belonging to the Corporation, the Court held that the Commissioner could alienate the property only on obtaining the prior sanction of the Corporation and this condition was held to be mandatory for the reason that the effect of non-observance of the statutory prescription would vitiate the transfer though no specific power had been conferred upon the Corporation to transfer the property.
In Ramchandra Keshav Adke Vs. Govind Joti Chavare & Ors., AIR 1975 SC 915, the Apex Court held that where the imperative language, the beneficent purpose and importance of the provisions for efficacious implementation of the general scheme of the Act, all unerringly lead to the conclusion that they were intended to be mandatory, neglect of any of those statutory requisites would be fatal.
The law on this issue can be summarised that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. But the circumstance that the Legislature has used the language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the Statute is to be construed as peremptory.
In the case in hand, the consequence for non-performance of duty under Section 18(1) of the Act has been made under Section 18 (2) of the Act. Therefore, we are of the view that the provision contained under sub-section (1) of Section 18 of the Act is mandatory in nature and only in case of the failure of Management to exercise its power given under sub-section (1) of Section (18), the District Inspector of Schools could exercise the power under sub-section (2) of Section 18 of the Act for appointing the seniormost teacher as in-charge or ad hoc Principal.
We, therefore, hold that the provisions contained in sub-section (1) of Section 18 of the Act is mandatory and only when the Management fails to appoint ad hoc Principal under sub-section (1) of Section 18, the District Inspector of Schools can issue order promoting a teacher as ad hoc Principal as provided under sub-section (2) of Section 18 of the Act. We further hold that the seniormost teacher of the institution shall ordinarily be appointed as ad hoc Principal, provided he is not facing grave charges and his appointment as ad hoc Principal would not be detrimental to the interest of the institution nor he suffers from such serious physical disability on account of which he cannot perform the duties and functions of Principal properly. It is only in these eventualities, the seniormost teacher can be denied ad hoc promotion.
We, therefore, hold that in the facts and circumstances of the case and in the light of the discussions made above, the appellant being aggrieved person, writ petition at his instance was maintainable.
In the result, the appeal succeeds and is allowed. The impugned order passed by the learned Single Judge dated 5.8.2011 in Writ Petition No. 36168 of 2010 is set aside. The appellant is, accordingly, directed to take steps to recommend the name for appointment to the post of ad hoc Principal of the institution. However, if the Committee of Management fails to take steps within a period of six weeks from the date of issuance of a certified copy of this order, it would be open to the District Inspector of Schools to exercise his suo motu power vested in him under Section 18 (2) of the Act.
It is further provided that till fresh appointment is made pursuant to this order, status quo in respect of the office of the Principal as of date shall be maintained by the parties.
Order Date:- 9.1.2012
AHA/RK
(Ran Vijai Singh, J.) (S.R. Alam, C.J.)
Case :- SPECIAL APPEAL No. - 44 of 2012
****
Hon'ble Syed Rafat Alam,Chief Justice
Hon'ble Ran Vijai Singh,J.
Allowed.
For orders, see order of date passed on separate sheets.
Date:- 9.1.2012 (Ran Vijai Singh, J.) (S.R. Alam, C.J.)
AHA/RK