Allahabad High Court
Suresh Chandra Mishra vs State Of U.P. Thru Secy.Secondary ... on 10 July, 2018
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 23 Case :- SERVICE SINGLE No. - 6600 of 2018 Petitioner :- Suresh Chandra Mishra Respondent :- State Of U.P. Thru Secy.Secondary Edu.Civil Sectt.Lko.& Ors. Counsel for Petitioner :- Shiwa Kant Tiwari Counsel for Respondent :- C.S.C.,Ajay Pratap Singh,Diwakar Singh,Raj Kr Singh Suryvanshi Hon'ble Irshad Ali,J.
Heard Sri Shiwa Kant Tiwari learned counsel for the petitioner, learned Addl. Chief Standing Counsel, Sri Ajay Pratap Singh, Sri Diwakar Singh and Sri Raj Kr Singh Suryvanshi for the respondents.
By means of the present writ petition, the petitioner is challenging an order dated 05.02.2018 passed by the Director of Education (Secondary) U.P. at Lucknow, whereby the dispute of seniority, determined by the statutory authority, is stayed till the pendency of the writ petition and consequential order of the District Inspector of Schools dated 24.02.2018, whereby the respondent no. 7 has been authorized to function as officiating/ad hoc Principal of the institution.
There is society registered under the Societies Registration Act, 1860. The society runs and manages an educational institution, which has been accorded recognition under the provisions of the U.P. Intermediate Education Act, 1921. The institution is receiving aid from the State Government. Therefore, the provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, inasmuch as provisions of the U.P. Secondary Education Services Selection Board Act, 1982 and the rules framed thereunder, as amended up to date, are applicable to the said institution.
Brief facts of the case is that in the year 1989 the respondent no. 6 institution, namely, Sri Sukh Pal Inter College Tirhut, District Sultanpur invited applications from the eligible and qualified persons for the selection and appointment on the post of Assistant Teacher (L.T. Grade) against short term vacancy. In response thereto the petitioner applied for and, after appearing in the interview before the duly constituted selection committee, he was selected on the said post. Thereafter, appointment of the petitioner was approved by the District Inspector of Schools, Sultanpur vide order dated 29.05.1989. The petitioner was regularized vide order dated 26.09.2000 issued by the Joint Director of Education, Faizabad Mandal, Faizabad. The committee of management under resolution dated 16.03.2003 proposed promotion of the petitioner on the post of Lecturer (Economics) and paper in that regard were sent for approval. The Regional Joint Director of Education vide order dated 02.11.2004 rejected the proposed promotion of the petitioner on the post of Lecturer.
Against the order dated 02.11.2004, the petitioner filed Writ Petition No. 1354(S/S) of 2005, which was finally disposed of with a direction to the respondents to consider and decide the representation of the petitioner by means of a reasoned speaking order within the time specified. Thereafter, the Regional Joint Director of Education rejected the representation of the petitioner vide order dated 15.10.2005 on the ground that he is not entitled for the post of Lecturer, as he has not completed requisite service and the post of lecturer in question falls within the quota for scheduled caste.
Being aggrieved, the petitioner filed Writ Petition No. 3402(S/S) of 2006, which was finally disposed of vide order dated 26.04.2006 with a direction upon respondent no. 3 to consider and decide the claim of the petitioner afresh without being influenced by the order dated 15.10.2005 within the time specified by the Court.
The U.P. Secondary Education Service Selection Board (respondent no. 5) recommended the name of Shri Mukesh Kumar Saroj for joining on the post of Lecturer (Economics). As the matter of petitioner was pending consideration before the respondent no. 3, the select panel was also returned back to the respondent no. 5 for adjustment in any other institution.
Ultimately, petitioner was promoted on the post of Lecturer (Economics) vide order dated 08.02.2007 passed by the Regional Joint Director of Education and the copy of the said order was sent to the respondent no. 5. Ignoring the order dated 08.02.2007, the respondent no. 5 again sent name of one Mahajan for appointment on the post of Lecturer (Economics). The committee of management (respondent no. 6) informed the District Inspector of Schools that it is not possible to issue appointment letter to Sri Mahajan, as there is no vacancy available.
Feeling aggrieved Sri Mahajan filed Writ Petition No. 44417(S/S) of 2011, which was disposed of with the direction to the petitioner of the aforesaid writ petition to approach the Director of Education (respondent no. 2). Thereafter, the Director of Education (respondent no. 4), after considering the representation of Sri Mahajan, cancelled the promotion of the petitioner vide order dated 02.12.2011 without giving any opportunity of hearing to him.
Assailing the order dated 02.11.2011, the petitioner preferred a Writ Petition No. 8449(S/S) of 2011, where in an interim order dated 12.12.2011 was granted by the Hon'ble Court staying the operation of the order dated 02.11.2011. Subsequently vide order dated 10.01.2013 the interim order was affirmed by this Hon'ble Court.
Sri Aniruddh Pratap Singh, ad hoc Principal of the institution retired on attaining the age of superannuation on 31.03.2016. The petitioner claimed promotion on the post of ad hoc Principal being senior most lecturer of the college. The committee of management passed a resolution whereby the respondent no. 7 was granted ad hoc promotion on the post of Principal, which was duly approved by the District Inspector of Schools.
The respondent no. 7 was granted appointment by the committee of management of the institution on 04.07.1992 and submitted papers before the District Inspector of Schools for approval. In the institution there was no post of Lecturer (Agriculture Mathematics) in the college, therefore no approval to the appointment of the respondent no. 7 was granted by the District Inspector of Schools.
Respondent no. 7 filed Writ Petition No. 1882(S/S) of 2001 before this Hon'ble Court, which was disposed of vide order dated 08.05.2013 with the direction to the State Government to consider and pass appropriate order for the creation of post of Lecturer in the institution in the subject of Agriculture. In compliance to the order of the Court, the State Government created 9 post of Lecturer in the institution in Agriculture. Thereafter the Regional Level Committee considering the claim of the respondent no. 7 regularized his services vide order dated 26.04.2016 on the post of Lecturer (Agriculture Mathematics) subject to the decision in Special Appeal No. 673 of 2014.
The committee of management handed over charge of the post of officiating Principal of the institution to the respondent no. 7 under order dated 30.04.2016 ignoring the claim of the petitioner. The petitioner filed his objection before the committee of management vide representation dated 07.05.2016. The committee of management differed the matter vide resolution dated 23.06.2016, therefore, the petitioner filed Writ Petition No. 10389(S/S) of 2016 for issuance of a direction to the committee of management for deciding the dispute of seniority of the lecturers appointed in the institution. The petitioner also filed an appeal under Regulation 3(f) before the Regional Joint Director of Education on 14.06.2016 against the order passed by the committee of management on 23.06.2016.
The Regional Joint Director of Education decided the dispute vide order dated 13.12.2017, passed in compliance of the order passed by this Court on 04.10.2017 in Writ Petition No. 10389(S/S) of 2016, holding the petitioner to be senior to the respondent no. 7. In compliance thereof the District Inspector of Schools attested the signature of the petitioner as officiating/ad hoc Principal of the college.
The respondent no. 7 filed Writ Petition No. 31303(S/S) of 2017 challenging the order of the Regional Joint Director of Education dated 13.12.2017 and the consequential order passed by the District Inspector of Schools, wherein no interim order was granted. During the pendency of the Writ Petition No. 31303(S/S) of 2017 the respondent no. 7 filed an other writ petition, being Writ Petition No. 56(S/S) of 2018, requesting therein to direct the Director of Education (Secondary) to decide his representation filed against the order of the Regional Level Committee dated 13.12.2017 and consequential order of the District Inspector of Schools dated 28.12.2017.
This Court passed an order in Writ Petition No. 56(S/S) of 2018 whereby direction was issued to the Director of Education to pass an appropriate order on the pending representation filed by the respondent no. 7.
In compliance of the order of this Court, the Director of Education has proceeded to pass the impugned order dated 05.02.2018 and in consequence thereof the District Inspector of Schools has passed the order dated 24.02.2018 whereby the respondent no. 7 has been authorized to function as officiating/ad hoc Principal of the institution.
Assailing the order passed by the Director of Education dated 05.02.2018, the learned counsel for the petitioner submitted that under Regulation 3 of Chapter II of Regulations framed under U.P. Intermediate Education Act, 1921 (hereinafter referred to as ''Act, 1921') it has been provided that seniority of a teacher of an institution recognized under the aforesaid provisions shall be circulated every year by the committee of management under the provisions of Regulation 3 (a) and if there is objection to any of the teacher in regard to the placement in the seniority, he has right to raise his objection before the Committee of Management, who is empowered to decide the dispute of the seniority. The order passed by the Committee of Management, determining seniority, is appealable before the Regional Joint Director of Education of the concerned Region in view of the provision contained under Regulation 3 (f) of the Regulation of Chapter II, framed under U.P. Intermediate Education Act, 1921.
The submission of the learned counsel for the petitioner is that once the Regional Joint Director of Education passed an order under the statutory provisions of law, which was not subject matter of challenge before the competent court of law having jurisdiction, the same attained finality in the eyes of law. Under Regulation 3 of Chapter II the Director of Education (Secondary) is not an authority defined under the aforesaid Regulation to be an authority having jurisdiction to entertain the second appeal or revision against an order passed by the Regional Joint Director of Education. Thus, the submission of the learned counsel for the petitioner is that the order passed by the Director of Education (Secondary) is wholly without jurisdiction.
Next submission of the learned counsel for the petitioner is that the order impugned dated 05.02.2018 passed by the Director of Education is in pursuance to an order passed by this Court. Therefore, his submission is that the Hon'ble Supreme Court in catena of decision has held that if statute does not permit an authority to pass an order, the Court cannot create a jurisdiction. In support of the submission he relied upon a judgment of the Hon'ble Supreme Court in the case of Anurag Kumar Singh and others vs. State of Uttarakhand and others, reported in 2016 9 SCC 426.
Per contra learned counsel appearing on behalf of respondent nos. 6 and 7 submitted that, after determination of seniority by the Regional Joint Director of Education, the petitioner was declared to be senior to the respondent no. 7 and in pursuance thereof a direction was issued to the District Inspector of Schools to handover the charge of the post of Principal to the petitioner.
Challenging the order of the Regional Joint Director of Education, the respondent no. 7 filed a Writ Petition No. 56(S/S) of 2018 before this Court and with the consent of the parties a direction was issued to the respondent no. 2 (Director of Education) to pass appropriate order and in pursuance thereof the Director of Education has passed the impugned order, which cannot be termed to be without jurisdiction. Therefore, there is no illegality in the order of the Director of Education and the same is a just and valid order.
Learned Addl. Chief Standing Counsel appearing on behalf of the State respondents submitted that the Director of Education (Secondary), after hearing the affected parties, has passed the order dated 05.02.2018. Therefore, the order is a just and valid order and does not suffer from any infirmity or illegality.
He next submitted that the Director of Education during the pendency of the matter has stayed the operation of the order of the Regional Joint Director of Education till the seniority dispute is decided in the pending writ petition.
After the rival contentions of the learned counsel for the parties, this Court has perused the material on record.
For deciding the issue in regard to the dispute of seniority, the provisions contained under Regulation 3 of Chapter-II of the Regulations framed under the U.P. Intermediate Education Act, 1921 is necessary to be taken into consideration. Thus, Regulation 3 is being quoted 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 ;
(f) mi[k.M ¼³½ ds v/khu izcU/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 lEcfU/kr {ks=h; mi&f'k{kk funs'kd dks vihy dj ldrk gS] vkSj vihy ij lEcfU/kr i{kksa dks lquokbZ dk volj nsus ds mijkUr mi f'k{kk fnus'kd viuk fu.kZ; dkj.k lfgr nsxkk] tks vfUre gksxk vkSj izcU/k lfefr }kjk dk;kZfUor fd;k tk;sxkA
(g) ;fn ,d xszM esa dk;Zjr nks ;k vf/kd v/;kid fdlh ,d gh frfFk ij inksUUkfr fd, tk,¡ 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."
On perusal of Regulation 3, it is evident that the Committee of Management is empowered to determine the seniority after circulation amongst the teachers appointed in the institution and in case of dispute the aggrieved party has right to file an appeal before the Regional Joint Director of Education under Regulation 3(f). The order passed by the Regional Joint Director of Education in appeal is final and no second appeal or revision lies before any authority. The aggrieved party has right to challenge the same before the competent court of law. Therefore, the order of the Director of Education (Secondary), staying the operation of the order of the Regional Joint Director of Education, is wholly without jurisdiction and is not sustainable in law.
In regard to the question that whether the High Court can create a jurisdiction upon an authority by passing an order, the Hon'ble Supreme Court in the case of Anurag Kumar Singh (supra), in paragraph 16, has held as under:
"Judicial discretion can be exercised by a Court only when there are two or more possible lawful solutions. In any event, courts cannot give any direction contrary to the statute or rules made thereunder in exercise of judicial discretion. It will be useful to reproduce from Judicial Discretion (1989) by Aharon Barak which is as follows:
"Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the Judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The Judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several."
In view of the law report referred herein above, there is no substance in the submission advanced by the learned counsel for the respondents that the order of the Director of Education, staying the order of the Regional Joint Director of Education, is a valid order under the statutory provisions of law and in pursuance thereof the District Inspector of Schools attested the signature of the petitioner vide order dated 24.02.2018 to continue on the post of ad hoc Principal of the institution. The date of substantive appointment of the petitioner on the post of Lecturer is 08.02.2007. The date of substantive appointment of respondent No.7 is 26.04.2016. Therefore, in view of the provisions contained under Regulation 3 Chapter 2 of the regulations framed under the U.P. Intermediate Education Act, 1921 the petitioner is senior to the respondent No.7. Therefore, the respondents have committed gross illegality in passing the impugned order. The respondents would have first decided the issue involved in regard to the seniority so that the entitlement of the Lecturers working in the institution to hold the post of Principal on ad hoc basis/officiating capacity be decided accordingly. Here, in the present case, the Regional Joint Director of Education decided the issue of seniority in favour of the petitioner and accordingly, the District Inspector of Schools attested the signature and permitted the petitioner to continue on the post of Principal of the aforesaid institution. Accordingly, the interference at the level of Director of Education is wholly without jurisdiction and suffers from apparent illegality.
The order of the Director of Education (Secondary) has not been passed under any statutory provisions of law and contrary to the dictum of the Hon'ble Supreme Court as has held in the case of Anurag Kumar Singh (supra). Therefore, the order being wholly without jurisdiction is liable to be set aside.
Accordingly, the impugned order dated 05.02.2018, passed by the Director of Secondary Education (respondent no. 2) and consequential order passed in pursuance thereof on 24.02.3018 by the District Inspector of Schools, Sultanpur are hereby set aside.
The writ petition succeeds and is allowed.
The respondents are directed to permit the petitioner to discharge his duties on the post of ad hoc Principal of Sri Sukh Pal Inter College, Trihut, District Sultanpur and to pay him regular monthly salary month by month, as admissible to the post of Principal till regularly selected candidate is recommended by the U.P. Secondary Education Services Selection Board, Allenganj, Allahabad.
No order as to costs.
Order date:10.07.2018 Pkb/