Madhya Pradesh High Court
Kusum Bai Jain Girls College Bhind Thr. vs The State Of Madhya Pradesh on 24 August, 2017
1
W.P. No.2205/2017
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ANAND PATHAK
Writ Petition No.2205/2017
Kusum Bai Jain Girls College Bhind
Vs.
State of M.P. and Others
Shri Jitendra Sharma, learned counsel for the petitioner.
Shri C.R. Roman, learned Government Advocate for
respondents No.1 to 5/State.
Shri Gaurav Mishra, learned counsel for respondent No.6.
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Writ Petition No.2496/2017
Dr. Smt. Mithilesh Kushwah
Vs.
State of M.P. and Others
Shri Gaurav Mishra, learned counsel for the petitioner.
Shri C.R. Roman, learned Government Advocate for the
respondents/State.
Shri Jitendra Sharma, learned counsel for respondent No.4.
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ORDER
(Delivered on this day of August, 2017) With consent, heard finally.
2. Regard being had to the similitude of the facts and controversy in question, both the petitions are heard analogously. For the sake of convenience, facts of W.P. No.2205/2017 are borrowed.
3. The present writ petition under Article 226 of the Constitution of India has been preferred by the petitioner/ college being crestfallen by the order dated 31/03/2017 (Annexure P/1) passed by respondent No.5 whereupon petitioner has been insisted to handover the charge of Principal of Kusum Bai Jain Girls College, Bhind to respondent No.6 whereas the government body of the petitioner/ college vide its resolution dated 15/06/2016 provided charge of Principal to Smt. Asha Jain which according to the petitioner 2 W.P. No.2205/2017 is the senior most employee of the college and therefore, considering her seniority as well as administrative capacity charge has been given to her.
4. According to learned counsel for the petitioner, petitioner/college is a society registered under the provisions of M.P. Society Registrikaran Adhiniyam, 1973 (for short "the Act of 1973") and engaged for imparting education to the students. It is a minority institution as per Article 30 of the Constitution of India and is receiving 100% grant-in-aid from the State Government for the purpose of running the college including salary etc. The service conditions of the petitioner/ college, their teachers and other staff members are governed by the M.P. Ashashkiya Shikshan Sanstha (Anudan Ka Praday) Adhiniyam, 1978 and under the provisions of said Adhiniyam, the State government conferred the power of education officer in favour of respondent No.5.
5. After retirement of regular principal Dr. Smt. Asha Sharma on 31/12/2016, president of government body of the institution provided temporary current charge of principal to Smt. Asha Jain vide resolution dated 22/02/2017 (Annexure P/4). On receipt of the said letter dated 22/02/2017, respondent No.5 raised the objection to the petitioner/ college about the power/authority to provide current charge of principal to Smt. Asha Jain. Despite that government body of the petitioner/ college vide resolution dated 15/03/2017 approved the earlier decision to provide current charge of the principal of Smt. Asha Jain till regular appointment of the principal is made by the petitioner/ college. An advertisement was also issued in daily newspaper Patrika and Times of India in respect of the appointment to the post of principal of the college and a letter was sent to the registrar Jiwaji University for constitution of selection committee for appointment of the principal as per college code (statue 28). It is further 3 W.P. No.2205/2017 submitted that respondent No.5 was interested to provide the current charge of post of principal to respondent No.6 and therefore, made correspondence in this regard and issued the impugned order dated 31/03/2017 (Annexure P/1). Being aggrieved by the same, this petition has been preferred. The act of the respondents, according to the petitioner is violation of Article 30 of the Constitution of India as respondent No.5 has no power or authority to insist upon the petitioner in respect of appointment to the post of principal and to appoint a particular person on said post. The provisions of current charge is a stop gap arrangement and has been made till the full fledged principal takes charge of the petitioner/ college.
6. According to learned counsel for the petitioner the objection raised by respondent No.5 regarding Smt. Asha Jain is arbitrary and baseless and amounts to malafide. He relied upon the judgment rendered by this Court in the matter of Siddhi Bala Bose Library Association Vs. State of M.P., 1979 MPLJ 379. He also relied upon the earlier circulars of 2003 and 2008 in this regard and submits that petitioner/ college has done nothing arbitrary and illegal by appointing senior most employee of the institution as in- charge principal/ on current charge.
7. Learned counsel for the respondents/State opposed the prayer made by the petitioner by way of filing return and submits that as per order of the State Government, current charge of the principal is to be handed over to the senior most employee (professor/ assistant professor) of the institution. Relevant order in that regard dated 30/03/2013 (Annexure R/1) was referred wherein this clause has been clearly stipulated. The post of a principal in a college is the head of administration and he controls the grant given by the State Government, therefore, the said post has to be filled up as per the directions of the State Government and any 4 W.P. No.2205/2017 attempt on the part of the petitioner to handover the control of grant to a person of its choice is an arbitrary exercise on the part of the petitioner. Respondent No.6-Dr. Mithlesh Kushwaha is the senior most employee of the college, therefore, he has to be given the charge whereas Smt. Asha Jain is a librarian and does not fall in the teaching cadre. He referred the order dated 16/04/2010 (Annexure R/2) wherein distinction has been made between teaching staff and librarian. He submits that earlier also, petitioner tried to commit the same mischief and at that time also, vide letter dated 18/11/2014 (Annexure R/3), directions have been given to appoint senior most employee (professor/ assistant professor) of the college/ institution on the post of the principal. The respondents/State also alleged inaction on the part of the petitioner/ college in not appointing a regular principal as earlier incumbent on the post of principal was also holding the post in officiating capacity for more than two years and therefore, since long regular principal has not been appointed and therefore, this adhoc arrangement appears to be suitable to the petitioner/ college for controlling the grant and therefore, arbitrariness and motive of the petitioner/ college is clearly shown and therefore, the impugned communication has been issued.
8. Learned counsel for respondent No.6 through return opposed the prayer made by the petitioner and submits that petitioner/ college has overlooked the instructions of the Ministry of the Higher Education Department whereby the Commissioner Higher Education Department vide letter dated 30/03/2013 (Annexure R/1) and 18/11/2014 (Annexure R/3) have instructed the petitioner/ college to give charge of principal to the senior most professor/ assistant professor of the college. Respondent No.5 has time and again vide letter dated 16/02/2017, 22/02/2017 and 25/02/2017 (Annexure 5 W.P. No.2205/2017 R/6-1) directed the president of the petitioner/ college to comply with the directions issued by the Higher Education Department (Annexure R/6-1), but still petitioner/ college has not complied with the same. Petitioner has not challenged the instructions of State Government before this Court and therefore, as long as the instructions are existing petitioner has to work according to the said instructions and said instructions mandate that senior most teaching faculty should be appointed as principal.
9. The governing body of the petitioner/ college has no power to challenge or amend the regulations as framed by the State Government. Similarly, respondent No.6 and two other teaching faculties are forced to work under a librarian which is not a desirable situation. Respondent No.6 is the senior most professor of the petitioner/ college and is having an experience to handle the charge of principal of petitioner/ college as she rendered her service as in-charge principal between 24/07/2015 to 10/03/2016. He prayed for dismissal of the petition.
10. Respondent No.6-Smt. Mithlesh Kushwaha of this petition has filed writ petition, viz W.P. No.2496/2017, in which she prayed for a direction to respondents/State as well as to college to hand over the charge of principal to respondent No.6.
11. Order of this petition would govern the disposal of W.P. No. 2496/2017 (Dr. Smt. Mithlesh Kushwaha Vs. State of M.P. and Others) also which is filed, being aggrieved by the order dated 22/02/2017 (Annexure P/1) as well as wider proceedings in pursuant thereto whereby respondent No.4/ college (petitioner in W.P. No.2205/2017) has given current charge to Smt. Asha Jain, who happens to be librarian of the college and does not fall in the teaching cadre. In the said case, (W.P.No.2496/2017) respondents No. 4 and 5 (college) 6 W.P. No.2205/2017 are contesting respondents. They filed the return and contested the claims made by the petitioner. Submission of respondents No.4 and 5 therein mainly revolves around the justification of the respondents/ college in respect of their action. Respondents No.1, 2 and 3/ State supported the petitioner herein and made an application for adoption of reply filed in W.P. No.2205/2017.
12. Heard the learned counsel for the parties and perused the documents appended with the petition.
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. 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 7 W.P. No.2205/2017 to the principal.
14. Petitioner could not establish the fact that librarian comes under the teaching cadre and/ or the college contains curriculum in which a librarian is performing her duties as teaching faculty, therefore, for the purpose of providing current charge of principal, librarian cannot be equated with teaching faculty who are regularly imparting class-room education to the students, therefore, current charge of the principal cannot be given to a librarian. The circular dated 30/03/2013 (Annexure R/1 ) and 18/11/2014 (Annexure R/3) are clear in this regard.
15. Perusal of Annexure P/15 of W.P. No.2496/2017 reveals that the president of the petitioner/ college has itself opposed the appointment of principal and has wrote a letter to the Managing Committee on 12/04/2017 therefore, this aspect further reveals that stubborn attitude has been adopted by the petitioner/ college and its managing committee by continuing Smt. Asha Jain (librarian) as principal with current charge, treating her to be the senior most teaching faculty.
16. Conduct of the petitioner/ college is also important wherein respondents/ State has categorically submitted that petitioner/ college is running through adhoc arrangement of principal for last two years and therefore, flow of grant is not in accordance with the Act of 1978 and Rules of 2008. Petitioner/ institution cannot be allowed to enjoy privileges flowing from the State Government without any accountability/ responsibility towards the State. It is surprising that petitioner/ institution has come up with a case for handing over the current charge of the principal to a particular individual. The concerned principal (current charge) has not filed this petition. On this count, it appears that petition is misconceived. No violation of any fundamental rights or other legal rights of petitioner/ institution is 8 W.P. No.2205/2017 apparent on the face of the record to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
17. The judgment as relied upon by the petitioner in the matter of Siddhi Bala Boss (supra) is not of much help to the petitioner. The Division Bench of this Court in the said case has struck down certain provisions of Section 6 of the Act of 1978 as violative of Article 30 of the Constitution of India. Other provisions of the Act of 1978 gives sufficient power to the authorities/ State to prevail upon the petitioner/ college for enforcement of the policies in accordance with law. Once the Commissioner Higher Education Department has approved the stand for handing over the current charge of the principal to the senior most teaching faculty (professor/ assistant professor) then it is the duty of the petitioner/ college to obey the directions and handover the current charge of principal to respondent No.6-Dr. Smt. Mithilesh Kushwah being the senior most teaching faculty. Therefore, petitioner/ college is bound to obey the impugned communication dated 31/03/2017 (Annexure P/1) issued on behalf of the respondents/ State. Petitioner has also referred the judgment of the Hon'ble Apex Court in the matter of State of Haryana Vs. S.M. Shama and Others, AIR 1993 (SC) 2273 in respect of conferral of current duties / charge. The said judgment is not applicable in the present fact situation of the case. In fact, the Hon'ble Apex Court in categorical terms has provided that no one has the right for asking for and providing current duties/ charge, therefore, this analogy does not help the cause of the petitioner/ institution rather it binds the petitioner/ college, not to insist upon for continuance of current duties/ charge to Smt. Asha Jain.
18. Therefore, the W.P. No.2205/2017 preferred by 9 W.P. No.2205/2017 petitioner college is hereby dismissed. The W.P. No.2496/2017 preferred by respondent No.6 of W.P. No.2205/2017 is disposed of with direction to the respondents to give current charge to the petitioner-Dr. Smt. Mithlesh Kushwaha (petitioner of W.P. No.2496/2017) forthwith, if she is the senior most teaching faculty (professor/ assistant professor) of the college/ institution (petitioner of W.P. No.2205/2017) in accordance with the directions of the State Government.
19. The petition W.P. No.2496/2017 stands disposed of accordingly and therefore, the W.P. No.2205/2017 preferred by petitioner/ college is hereby dismissed.
(Anand Pathak) Judge vc