Allahabad High Court
Ram Subhav Yadav vs Joint Director Of Education And Ors. on 5 April, 2004
Equivalent citations: 2004(3)AWC2436
Author: D.P. Singh
Bench: D.P. Singh
JUDGMENT D.P. Singh, J.
1. Pleadings have been exchanged and the counsel for the parties agree that the petition may be finally disposed of under the Rules of the Court.
2. Heard counsel for the parties.
3. This petition is directed against an order dated 7.7.2001, passed by the District Inspector of Schools, Azamgarh, whereby the suspension order passed against the respondent No. 5 has been disapproved and also a direction was issued that the respondent No. 5 should be appointed as officiating/ad hoc Principal of the institution.
4. Panchayat Inter College, Khanpur Sarai Meer, Azamgarh (hereinafter referred to as an institution) is a duly recognized and aided institution imparting education uptil Intermediate level. It is alleged that the petitioner was initially appointed as a untrained L. T. grade teacher on 12.7.1971 whereafter he completed his B.Ed. examination and his services were approved in 1973. The respondent No. 5 was initially appointed as a L. T. grade teacher on 1.7.1969 and his services were approved in 1970. It is alleged that in the seniority list filed by the Committee of Management before the District Inspector of Schools, the name of the petitioner stood at serial number 3 while that of respondent No. 5 at serial No. 5. The post of Principal fell vacant on 30.6.2001. On 24.5.2001, a charge-sheet was issued to the respondent No. 5 levelling various charges of the period 1971 to 1975. The Committee of Management in its resolution dated 4.7.2001, resolved that the respondent No. 5 was guilty of indiscipline etc. and since there was serious charges already levelled against him, he should be placed under suspension. By the impugned order the District Inspector of Schools disapproved the suspension order and held that the respondent No. 5 was seniormost teacher, attested his signatures as officiating Principal. It is worthy of note that the management has not challenged this order but the petitioner, who is another teacher of the institution, claiming to be the seniormost has come up before the Court.
5. Learned- counsel for respondent No. 5 has raised a preliminary objection that the petition was not maintainable at the behest of the petitioner as the matter of suspension was between the management and the respondent No. 5. However, learned counsel for the petitioner has urged that even assuming the petitioner was second seniormost, since the suspension has been illegally not approved, he has a right to entertain this petition because in case the order is set aside, the petitioner would be entitled under law to officiate on the post of Principal.
6. The Apex Court in the case of Devkinandan Verma v. State of Haryana and Anr., 1995 Suppl (3) SCC 431, was examining a case where the Government had rectified the date of birth of an incumbent entitling him to continue in service which was challenged before the High Court by his junior and the High Court set aside the order of rectification holding that since the chance of the next junior incumbent was in jeopardy, the Government should have heard him before passing the rectification order. On these facts, Hon'ble Supreme Court held as follows :
"We are at a loss to understand as to how and on what logic the High Court imported the rules of natural justice in a matter where it has no relevance at all. The least we can say is that the High Court fell into patent error almost bordering perversity in interfering with the order dated 18.6.1992 on the ground that it should have been passed after hearing the affected persons. When correction regarding date of birth is made in the service record of a person the State Government is doing what is required under law. A person has a right to continue in service till he attains the age of superannuation. When wrong date of birth is entitled in the service record the right of the person to remain in service till superannuation is obviously infracted. Rectification of the date of birth is a matter between the person concerned and the State Government and no other person has locus standi to prefer a caveat in such a matter."
7. Again in Ranjit Prasad v. Union of India and Ors., (2000) 9 SCC 313, a police officer was issued a charge-sheet for gross misconduct which was set aside by the High Court which was challenged by a practising advocate who contended that he had a right to maintain the petition as a public interest litigation in view of charges levelled against the officer. The Apex Court rejected the petition holding that such disciplinary proceedings are essentially matters between the employer and the employee and none other can challenge it as it would amount to abuse of process of court.
8. In Devkinandan Verma's case the Court was considering whether another employee was entitled to be heard before rectification of date of birth. In my view the ratio of that case would not apply to the present controversy as the exception of the junior in that case was too remote. In the present case, the petitioner has a right under law to officiate as Principal, in Ranjeet Prasads case, there was absolutely no nexus between subject and the stranger that is why the Court held that it was abuse of process of court. In my view, ratio of none of the two cases applies to the facts of the present case.
9. A Division Bench of this Court in the case of Shobh Nath Singh v. Director of Education, 1991 (2) UPLBEC 1174, was confronted with whether students or parents of the students could challenge the declaration of an institution as a minority institution, it held that they would have locus to challenge it. The ratio of this case is fully applicable to the present case. In the present case, if the suspension of the contesting respondent is approved, the petitioner under law would be entitled to function as officiating principal and though he may not have any right to be heard, he certainly has interest in the outcome of the suspension proceedings. He can challenge the non-approval of suspension order before the competent court as his interest is proximate and inter linked with the outcome of the proceedings.
10. In view of the aforesaid, the preliminary objection raised on behalf of the respondent is rejected.
11. Learned counsel for the petitioner has firstly urged that in the seniority list sent to the District Inspector of Schools the petitioner was shown senior to the respondent No. 5. He has also urged that by an order dated 8.10.1998, as corrected by order dated 14.10.1998, the Joint Director had stopped payment of a day's salary which was to be taken into consideration for continuity in service of the petitioner. Thus, it is urged that the continuity in service of the respondent No. 5 had been broken, therefore, he could not be held to be senior to the petitioner. From the record, it is evident that the services of the respondent No. 5 even according to the petitioner, had been confirmed much prior to that of the petitioner. Under the regulation framed under Chapter II, the respondent No. 5 would be deemed to be senior to the petitioner. In the counter-affidavit it is denied that any seniority list was sent to the District Inspector of Schools and, in fact, the very existence of the said seniority list had been denied. So far as the break in service is concerned, it is evident from the said two orders that prior to passing the order, no opportunity was given to the respondent No. 5 and after he had submitted an application, salary, which had been deducted, was paid to the respondent No. 5 by the District Inspector of Schools on the direction of the Joint Director of Education. This document is annexed as Annexure-1 to the counter-affidavit filed by the respondent No. 5 and authenticity of which has not been denied in the rejoinder-affidavit. Therefore, this argument of the learned counsel for the petitioner lacks merit.
12. Learned counsel for the petitioner has then urged that the respondent No. 5 was not a fit person to be given the charge of ad hoc Principal. In support of this contention, learned counsel for the petitioner has relied upon the decision of the Apex Court rendered in Ram Murti Singh v. D.I.O.S., 1995 SCC (L&S) 1134 and Union of India v. K.V. Janki Ram, AIR 1991 SC 2010, and several other cases. No doubt the ratio in the aforesaid cases that a person of questionable reputation and who does not enjoy good rapport with the students etc., can be by-passed. But the same has to be examined on the facts of each case. Learned counsel for the petitioner while referring to the charge-sheet has submitted that the respondent No. 5 was in jail between 25.11.1972 to 28.2.1974 in a case under Section 395, I.P.C. and this fact he did not disclose to the management and remained absent, he has further urged that, in fact, the respondent No. 5 was convicted in the said case and an appeal is pending against his conviction. A copy of the judgment of the criminal court convicting the respondent No. 5 has been annexed with the rejoinder-affidavit. A perusal of the same shows that there was some property dispute in the family and collaterals of the respondent No. 5 which led to the filing of the criminal case. The trial court did not find the respondent No. 5 guilty under Section 395, I.P.C. and gave him a clear acquittal. He was found guilty of intimidation under Section 506, I.P.C., but it did not sentence the respondent No. 5 but released him on probation after he executed bond and security for good and peaceful behaviour for three years vide its order and judgment dated 16.6.1980. This criminal case cannot fall in the category involving moral turpitude. It was a property dispute and that too is being used by the management after 30 years. It is too remote an incident to be taken note of in 2001. There are some allegation of misbehaviour in 1998 but they are hardly serious even to be noted. The very inclusion of the criminal case of 1972 in the grounds to suspend him discloses the animus of the management against the respondent No. 5. The Full Bench in the case of Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors., (1994) 3 UPLBEC 1551, has held in paragraphs 45 and 46 that even a seniormost teacher could be superseded after opportunity in case he has been found incompetent for a incident proximate in time of consideration. Therefore, this argument of the learned counsel for the petitioner also lacks merit and is to be rejected.
13. It is then urged that the impugned order is not a speaking order and, in fact, it is a collusive order, therefore, ought to be quashed. The District Inspector of Schools while considering such matter is not required to pass a detailed judgment. The District Inspector of Schools rightly considered the alleged charges against the respondent No. 5 and fond that the management slept over it for year's together and has mala fidely raised the issue to harm the respondent No. 5. From the impugned order, it cannot be said that there is no application of mind or the order is perverse.
14. It has then been contended that the District Inspector of Schools ought to have waited for seven days before passing the order. In my view, this argument is not available to the petitioner and the management has not chosen to challenge the order. Even otherwise from the order it is evident that the District Inspector of Schools has considered all the documents supplied with the letter of the management. Merely because the signatures of respondent No. 5 were attested on the same day on which the impugned order was passed, it cannot be said that there was collusion. In fact, the resolution itself sent by the management in favour of the petitioner had raised these points and therefore, the District Inspector of Schools was well within his jurisdiction to have passed the order in the manner it has done and it cannot be said that there was any collusion. Thus, even this argument of the learned counsel has no force. No other point has been urged.
15. In view of the discussions hereinabove, I do not find that this is a fit case for interference under Article 226 of the Constitution of India. The writ petition is rejected.