Allahabad High Court
C/M S.G.M.Inter College Thru Manager vs State Of U.P.& 4 Ors. on 16 September, 2013
Author: V.K. Shukla
Bench: V.K. Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 1 RESERVED ON 09.09.2013 DELIVERED ON 16.09.2013 Case :- WRIT - A No. - 46465 of 2013 Petitioner :- C/M S.G.M.Inter College Thru Manager Respondent :- State Of U.P.& 4 Ors. Counsel for Petitioner :- Vineet Kumar Singh,H.N.Singh Counsel for Respondent :- C.S.C.,S.K.Pandey Hon'ble V.K. Shukla,J.
Committee of Management of S.G.M Inter College, Khairgarh District Firozabad through its Manager Ajay Kumar Gupta has approached this Court for quashing of the order dated 01.07.2013 passed by District Inspector of Schools, district Firozabad wherein he has proceeded to pass an order for handing over the charge of Principal to the senior most Lecturer in the institution concerned and further pursuant to order dated 01.07.2013 has attested the signature of Raj Kumar respondent no. 4 on 10.07.2013 in the capacity of Principal of the institution.
Brief facts of the case as is reflected from the record that S.G.M Inter College, Khairgarh District Firozabad is an educational institution imparting education upto the intermediate level and is recognized under the provision of U.P. Act No. II of 1921 and the provision of U.P. Act No. V of 1982 and U.P. Act No. 24 of 1971 are also applicable to the said institution.
In the institution concerned Raj Kumar, respondent no. 4 was appointed as Lecturer in Civics vide appointment order dated 13.10.2008 and prior to it post of Principal has fallen vacant on 30.06.2007 and one Mitthu Singh Verma had been appointed on Adhoc basis to function as Principal of the institution and he left the charge on medical ground in February, 2010 and thereafter charge of Officiating Principal was handed over to Raj Kumar respondent no. 4 on 20.02.2010 and this much is also reflected that said Raj Kumar, respondent no. 4 thereafter expressed his disinclination to function as Officiating/Adhoc Principal of the institution on 28.01.2011. Thereafter in place of Rajkumar charge in question has been handed over to one Rajendra Kumar Jain and resolution in this regard has been passed on 20.05.2011. Record in question further reflects that Rajendra Kumar Jain has attained the age of superannuation on 30.06.2013 and issue arose as to who should be handed over the charge of Officiating/ Adhoc Principal. It appears that Committee of Management of the institution came up with the case that Rajkumar has refused to act as Principal vide application dated 21.062013, and as Rajkumar was not interested in being installed as Officiating/ Adhoc Principal, accordingly one Kunj Bihari Lal Saraswat, Assistant Teacher in L.T. Grade was sought to be installed as Officiating/Adhoc Principal. It appears that Raj Kumar, respondent no 4 has represented the matter and thereafter District Inspector of Schools has proceeded to pass order on 01.07.2013 directing therein that senior incumbent should be permitted to function as Officiating/ Adhoc Principal and charge should not be handed over to junior incumbent and thereafter on 10.07.2013, signature of Raj Kumar, respondent no. 4 has also been attested which has impelled the petitioners to be before this Court.
Counter affidavit has been filed in the present case and stand has been taken that Raj Kumar respondent no. 4 has been victim of arbitrary action of petitioners and on the earlier occasion when charge on the post of Officiating/ Adhoc Principal has been handed over to Raj Kumar Jain at that point of time, respondent no. 4 was perturbed on account of death of his young daughter and further categorical stand has been taken that forged proceeding in question has been undertaken wherein adverse entry has been shown to be awarded and he has been prohibited to function as in charge Principal in future and even letter dated 21.06.2013 purported to be written by him, has been termed to be forged and further it has been contended that an unqualified ineligible incumbent cannot be handed over the charge of Officiating/Adhoc Principal.
Rejoinder affidavit has been filed disputing the averments mentioned in the counter affidavit and therein copy of two resolutions dated 20.05.2011 and 05.06.2011 have been appended, and based on the same it has been stated that by no stretch of imagination Raj Kumar could be handed over the charge of Officiating/Adhoc Principal of the institution and in the facts and circumstances of the case, directives issued by the District Inspector of Schools is per se bad.
After pleading mentioned hereinabove have been exchanged present writ petition has been taken up for final hearing and disposal with the consent of the parties.
Sri H.N. Singh, Senior Advocate assisted by Sri Vineet Kumar Singh, Advocate submitted that in the present case once Raj Kumar, respondent no. 4 had his expressed disinclination to function as Officiating /Adhoc as Principal of the institution and valid resolution has already been passed against him that he should not be handed over the charge of office of Principal of the institution in future then he could not have staked his claim as has been done in the present case, his claim accordingly ought not to have been accepted and the resolution of handing over charge of Officiating /Adhoc as Principal of the institution to one Kunj Bihari Lal Saraswat, who is senior most teacher in the institution though is Assistant Teacher in L.T. Grade ought to have been accepted, in view of this impugned order should be quashed and the resolution passed by the petitioners should be implemented and given effect to.
Countering the said submission, Sri G.K. Singh, Senior Advocate assisted by Sri S.K. Pandey, Advocate on the other hand contended that resolution, dated 05.06.2011 is a forged resolution and same has been set up only to defeat the right of respondent no. 4 to function as Officiating /Adhoc as Principal of the institution and the incumbent, who has been sought to be installed as Officiating /Adhoc as Principal of the institution is not at all qualified to be appointed as Officiating /Adhoc as Principal of the institution in view of this once choice has to be made in between ineligible person and eligible person then preference has to be given to an eligible incumbent i.e. Raj Kumar, respondent no. 4. in view of this no interference should be made.
In order to appreciate respective arguments Section 18 of U.P. Act No. V of 1982 which covers the field of making arrangement qua the office of Principal, same is being quoted below:
Section 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.
(2) Where the Management fails to promote the senior most teacher under sub-section (1) the Inspector shall himself issue the order to 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 is 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 the 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 92) shall cease to have effect from when the candidate recommended by the Board joins the post."
Bare perusal of the provisions quoted above would go to show that 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 in the Lecturer's Grade in respect of vacancy on the post of Principal in the trained graduate's grade in respect of a vacancy in the post of the Headmaster. Sub Section (2) of Section 18 provides that where the Management fails to promote the senior most teacher under sub-section (1) the Inspector shall himself issue the order to 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 is pursuance of such order of promotion. Sub Section (3) of Section 18 takes care of the situation where the teacher to who order of promotion is issued under Sub Section 2, unable to to join the post due to any or omission on the part of Management, such teacher may submit joining report to the inspector then he shall 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. Sub-section (4) of Section 18 states that every appointment of an ad hoc Principal or Headmaster under sub-section (1) or sub-section (2) shall cease to have effect from the date when the candidate recommended by the Board joins the post.
Section 18 has been subject matter of interpretation before this Court and Division Bench of this Court in the case of Surendra Pal Singh Vs. Kamlesh Singh and others reported in 2006 (6) ADJ 500 clearly ruled that ordinarly a senior most teacher is to be selected as Ad-hoc Principal but his/her rights can be by-passed while he/she is on the death bed or suspended or such like. Relevant extract of the aforementioned judgment is quoted below;
"The senior most Lecturer can be by-passed only in the most extraordinary circumstances where, say, he is on the death bed or he has been suspended and such like. The Rule is not that the senior most Lecturer is ordinarily to be selected as ad hoc Principal, but the Rule is that only in the most extraordinary circumstances can such senior most Lecturer not be selected as ad hoc Principal."
The view to the similar effect of another Division Bench of this Court in the case of Committee of Management, Kunwrani Prema Satyaveera Kanya Inter College, Bijnor Vs. State of U.P. & others reported in 2012 (7) ADJ 692 is as follows;
"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."
On the parameters of the aforementioned provisions quoted above, this much is clearly reflected that on 28.02.2010, Rajkumar was handed over the charge of Principal and thereafter he expressed his willingness not to function as Principal and to take the charge of Principal from him and accordingly resolution was passed on 20.05.2011, for taking charge from him and charge being handed over to one Rajendra Prasad Jain. The first first issue to be answered is as to whether, once respondent no. 4 Raj Kumar has refused to function as Officiating/Adhoc Principal of the institution, can he be given second chance to function as Officiating/Adhoc Principal of the institution as a matter of right on the second occasion also.
Said issue has already been considered by this Court in the case of Prem Murti Dixit Vs. Sri Satyavir Singh Raghuvanshi 1996 (1) ESC 362. Relevant extract of the aforesaid judgment is being extracted below:
"Although Dixit initially accepted the post of officials Principal on 1.7.1991 and continued to work as such for almost one and half years, but he resigned on 4.11.1992 and his resignation was accepted by the management on 18.11.1992. On the same date Raghuvanshi was appointed in place of Dixit as officiating Principal. Thereafter the Manager of the College sent a letter dated 25.11.1992 to the DIOS for attesting the specimen signatures of Raghuvanshi in place of Dixit. On receiving the aforesaid letter, DIOS required Dixit to appear before him on 23.12.1992. On 23.12.1992 Dixit appeared before the DIOS where he not only accepted that he has subitted his resignation but also expressed his inability to work as officiating Principal, in view of mental torture he is suffering due to disappearance of his younger daughter. Dixit has, thus, voluntarily and intentionally relinquished the post of officiating Principal. It is, therefore, not open to him to claim the said post again. Once a teacher has either declined to accept the promotional post or after having accepted the said post, he has voluntarily given it up, it is not open to him to lay his claim to the said post again after some one else has been promoted to that post. DIOS was thus not justified to direct the management to appoint Dixit again as officiating Principal and hand over the charge of the said post to him.
It is true that a teacher can resign only by giving three months' notice or pay in lieu thereof. It is also true that notice given in this connection by the teacher should not expire in the months of January, February and March. But if the teacher has resigned voluntarily and thereafter he has stopped functioning willingly on the promotional post, the management cannot force him to work. The management has to run the College and for running of the College there has to be a Principal after the person has relinquished his job voluntarily the management has to make alternative arrangement by making fresh appointment of another eligible person in his place. Such a case would not be a simple case of resignation. It will also be a case of intentional and deliberate giving up of the promotional post for which compliance with Regulation 29 is not necessary."
On the principle as has been laid down in the aforesaid case, factual situation that would emerge in the present case that Raj Kumar has been handed over the charge of Officiating/Adhoc Principal of the institution concerned and this much is also accepted that he has refused to function as Officiating/Adhoc Principal and resolution in question in this regard has been passed on 20.05.2011 and one Rajendra Prasad Jain was handed over the charge and thereafter Rajendra Prasad Jain has retired on 30.06.2013 and thereafter Raj Kumar has once again staked his claim to function as Officiating/Adhoc Principal.
In normal course of business as in the past he has refused to continue with the Officiating/Adhoc assignment on the post of Principal then second chance cannot be given him to function as Officiating/Adhoc Principal, inasmuch as he has resigned voluntarily as is reflected from resolution dated 20.05.2011. Vacancy in question has been substantively vacant since 30.06.2007 and till date regular selection has not been made then whatever arrangement is to be made said arrangement still is to be made on officiating basis/adhoc basis from amongst next senior most eligible incumbent. The zone of consideration being limited to Lecturers alone. Once such a refusal is there to function as Officiating/Adhoc Principal then in normal course of business second chance cannot be accorded to function as Officiating/Adhoc Principal.
In the present case peculiar situation has arisen, inasmuch as, as per Section 18 of U.P. Act No. V of 1982 in case an incumbent is to be appointed as Officiating/Adhoc Principal, said incumbent has to be senior most teacher and coupled with this in Intermediate college only teachers who are performing and discharging duty as Lecturer are to be accorded promotion as Section 18 is clear and categorical in its term, by proving that Management shall fill such vacancy on purely adhoc basis by promoting senior most teacher, from amongst teachers working as Lecturer for the post of Principal and in the institution concerned there is only one Lecturer available i.e. Raj Kumar, respondent no. 4, in such a situation and in this background issue is as to whom the charge of Officiating/Adhoc Principal is to be given. Managing Committee of the institution has resolved to hand over the charge to one Kunj Bihari Lal Saraswat, Assistant Teacher in L.T. Grade of the institution concerned.
Under Section 18 of U.P. Act No. V of 1982, L.T. Grade teacher is not at all eligible and entitled to be offered appointment as Officiating/Adhoc Principal of the institution of a Intermediate College. Once such is the factual situation that an Assistant Teacher in L.T. Grade cannot be appointed as Officiating/Adhoc Principal of the institution of Intermediate College and the incumbent who has in the past refused to function as Officiating/Adhoc Principal of the institution can he be in the facts and circumstances of the case permitted to function as Officiating/Adhoc Principal of the institution and be given a second chance, when he is prepared to accept the aforementioned assignment.
This Court in the case of Shamshul Zama Vs. District Inspector of Schools, Chandauli and others reported in 2001 (4) AWC 2911 has clearly taken the view that even in the matter of appointment as Officiating/Adhoc Principal under Section 18 of U.P. Act No. V of 1982 an incumbent has to possess essential qualification for the post of Principal and incumbent who does not fulfil minimum qualification cannot be appointed even on the post of Officiating/Adhoc Principal of the institution. It has also been mentioned therein, that it will look incongruous that a institution should be headed by a person, who does not possess even the prescribed minimum qualification. It is all the more necessary that only a qualified person be appointed ad-hoc Principal.
Apex Court in the case of Balbir Kaur and another Vs. U.P. Secondary Education Services Selection Board Allahabad and others reported in JT 2008 (8) SC 381 has held that for being appointed as Principal of the institution of Intermediate College the service rendered as Headmaster of a High School or as a Lecturer only has to be taken into consideration and further keeping in view the provisions of Section 32 of U.P. Act No. V of 1982, the note to Sub-Rule (5) of Rules 1998 will prevail, and teaching experience as contemplated under the "Note" would apply to both the required experience and the experience more than that ,and therefore, even for required experience only service rendered as Head Master/Lecturer is relevant. For appointment on the post of Principal, the qualifying experience as stipulated in the "Note" would apply.
Thus, both these judgments are clear and categorical that for being offered appointment as Principal of an Intermediate College requisite minimum eligibility criteria prescribed under Appendix-A to Regulation 1 of Chapter II of U.P. Act No. II of 1921 read with Rule 12 (5) of U.P. Secondary Education Services Selection Board Rules 1998 has to be there and in ignorance of such eligibility criteria, an incumbent cannot be appointed as Principal of an Intermediate College either on substantive basis or either on Officiating/Adhoc basis.
Once such is the factual situation that Raj Kumar, respondent no. 4 is the only eligible Lecturer available in the institution and as in the past he has refused to accept assignment of Officiating/Adhoc Principal then what should be the arrangement made specially as of now when he is prepared to function as Officiating/Adhoc Principal and shown his inclination before the District Inspector of Schools to function as Officiating/Adhoc Principal.
Once such is the factual situation that there is only one incumbent available in the institution concerned who is eligible to be offered appointment as Officiating/Ahoc Principal by virtue of being Lecturer then in such a situation and in this background applying the principle of doctrine of necessity even though he has proceeded to refuse to function as Officiating/Adhoc Principal in the past, arrangement which has to be made the same has to be made from amongst eligible candidate and making such an arrangement, would be an exception to the rule, as has been laid in the case of Prem Murti Dixit Vs. Satyavir Singh reported in 1996 (1) ESC 362, wherein categorical mention has been made, that fresh appointment of another eligible person has to be made, as eligibility is sine qua non for being offered appointment as Officiating/ Adhoc Principal of the institution concerned.
Doctrine of necessity has been subject matter of consideration in the case of Election Commission of India and another Vs. Dr. Subramaniam Swamy and another (1996) 4 SCC 104 wherein view has been taken that law permits certain things to be done as a matter of necessity, if the choice is between allowing a biased person is applied to act or to stifle the action altogether the choice must fall in favour of the dormer as it is the only way to promote decision making. Apex Court in the case of State of U.P. Vs. S.S.L. Srivastava 2006 (3) SCC 276, has taken the view that where doctrine of necessity is applicable compliance with principle of natural justice would be excluded. Apex Court in the case of Lalit Kumar Modi Vs. BCCI 2011 (10) SCC 106, took the view that doctrine of necessity is common law doctrine and is applied to tide over the situation when there are difficulties as law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over. Said judgment have been given pressing the doctrine of necessity as an exception to the rule against the doctrine of bias. Said doctrine of necessity in Principle can also be pressed into service to tide over the situation, where statutory provisions are being breached, i.e. where choice is to be made between an eligible and ineligible person, and a solution has to be found out rather than allowing the illegality to perpetuate.
On the unveils of aforesaid doctrine as Raj Kumar has refused in the past to function as Officiating/Adhoc Principal and now has offered himself to function as Principal and in the institution concerned only one eligible incumbent to function as Principal in Intermediate college is available then there is no other choice available, in such a situation if choice is to be made in between an eligible person and an ineligible person, the choice would certainly fall in favour of eligible person, as it is the only way out to avoid a situation, wherein otherwise institution in question shall be headed by a person who does not even possess the minimum required qualification, and who in normal course of business can even not dream of becoming Principal, as for being appointed as a Principal of an Intermediate college the service rendered as a Headmaster of High School or as a Lecturer only has to be taken into consideration and in such a situation action taken by the District Inspector of Schools cannot be faulted once arrangement made is the demand of the situation and there has been no other alternative.
In the facts of the case much emphasis has been laid by the petitioners on the resolution dated 05.06.2011 wherein petitioners have proceeded to pass resolution awarding adverse entry to Raj Kumar, and it has also been mentioned therein Raj Kumar would never be made Incharge Principal in future.
Raj Kumar, respondent no. 4 has proceeded to dispute the validity of aforesaid resolution itself and has precisely proceeded to mention that his signatures are forged and in order to demonstrate this fact he has tried to submit that two signatures as has been shown at page 23 and 26 in reference to Agenda and resolution are materially different and coupled with this signatures on service book at page 29 are also forged.
Agenda notice dated 29.05.2011 has been perused and as per item no. 2 the misconduct of Raj Kumar during his continuance as Officiating Principal was to be considered. Thereafter on 05.06.2011 it has been mentioned that notice was given and no satisfactory reply has been submitted and adverse entry has been awarded and resolution has been further passed that he should not be made Incharge Principal in future, at any point of time.
Raj Kumar, respondent no. 4 has categorically denied all these proceeding having been undertaken in his presence and same has been termed to be forged and fabricated.
This Court cannot go in disputed question of fact, i.e qua the genuity and ingenuity of signatures but there are various circumstances in existence, which on its face value discredits the said resolution. (I) This Court has proceeded to examine the record and finds that on 20.05.2011 already Raj Kumar has tendered his resignation and has expressed his disinclination to function as Officiating/Adhoc Principal and in the said proceeding in question at no point of time there was mention made that notice has already been issued to Raj Kumar, respondent no. 4 qua his misconduct and in order to over come the same he has proceeded to tender his resignation. The respondents have failed to explain before this Court, that when Rajkumar had already refused to function as Principal, then what was the requirement of passing such a pre-emptive resolution, that in future he would not be made in-charge Principal.
(ii) Coupled with this once Committee of Management of the institution has been labouring under the impression that there are serious charges against respondent no. 4 then some inquiry ought to have been initiated. In the present case no inquiry worth name has been initiated and the charges on its fact value are all of general nature, without giving details of the charges and it has been contended that Raj Kumar was present in the meeting as such resolution has been passed. It has also been mentioned that notice dated 26.03.2011 has been given, and no satisfactory reply has been given. The Xerox copy of resolution at page 27 of rejoinder affidavit, clearly reflects that "6" has been inserted in the date of notice. Submission of reply and non-submission of reply are two different concepts. Submission of reply is a contingency when you respond to a notice. Non submission of reply is a contingency when you don't respond to the notice. Here it has been mentioned in the resolution, that no satisfactory reply has been submitted. This language in itself implicit that some reply has been submitted but its contents are not satisfactory. Raj Kumar's precise submission has been that no notice has been there, and proceedings are forged. Neither the notice, nor the alleged reply has been brought on record. Once charges were so serious why no enquiry has been held, has not been explained.
(iii) This Court proceeds to take note of the fact, that petitioners were conscious of this fact that Rajkumar would stake his claim for the office of Principal once it would fall vacant on 30.06.2013, as Rajkumar had already written letter dated 13.05.2013 staking his claim for the post of Principal. A show cause notice was given to Raj Kumar on 14.05.2013, the very next day, and the said show cause notice opens with the fact, that show cause notice was given on 26.03.2011, and to the said show-cause notice no reply was given, which is indicative of the fact that he has accepted the charges, and then in the operative portion of the notice, it has been mentioned, that cause be shown to the facts mentioned in show-cause notice dated 26.03.2011 and of the notice dated 14.05.2013, and it has also been mentioned that failing to submit reply to the same, will invite departmental action. To this notice reply had been given that entire records are with the institution, and proceedings are motivated. Once, as per the petitioners, final decision in the shape of resolution dated 05.06.2011 had already been taken, pursuant to notice dated 26.03.2011, then under what circumstances Rajkumar was once again asked by notice dated 14.05.2013, to submit reply also to the contents of notice dated 26.03.2011. This circumstances in itself discredits the resolution dated 05.06.2011, as had the said resolution been there, pursuant to show cause notice dated 26.03.2011, then reference of the same ought to have been there, in notice dated 14.05.2013, and there was no occasion to take action once again pursuant to notice dated 26.03.3011, specially when punishment order had already been passed by resolution dated 05.06.2011. There is no explanation/reply coming forward from the petitioners, as to how such a situation has been erupted. Facts and circumstances are speaking for itself that in well designed manner, proceedings have been set up.
(iv) Coupled with this, in paragraph 49 of counter affidavit categorical mention has been made that proceedings are forged and in support of the same affidavit of teacher representative had been appended disowning any such meeting. In paragraph 36 of Rejoinder Affidavit no specific reply has been given. The resolution is accordingly not only a designed one but a motivated one also and no credibility could be attached to the same.
In view of this. once Raj Kumar is a lone eligible Lecturer available in the institution and post of Principal is that of an intermediate college, then same necessarily has to be filled from amongst eligible Lecturer available in the institution. Once such an arrangement has been made by the District Inspector of Schools then no infirmity could be found in the same as any interference in the same would amount to perpetuation of illegality.
With the above observations and direction present writ petition is dismissed.
Order Date :- 16.9.2013 Dhruv