Allahabad High Court
C/M Mihir Bhoj Inter College, Gautam ... vs State Of U.P. And 3 Others on 5 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2879
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 39 Case :- WRIT - A No. - 17046 of 2019 Petitioner :- C/M Mihir Bhoj Inter College, Gautam Buddh Nagar, And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bheem Singh Counsel for Respondent :- C.S.C. Hon'ble Manoj Misra,J.
Heard Sri Bheem Singh, learned counsel for the petitioners; the learned Standing Counsel for the respondents 1, 2 and 3; and perused the record.
The petitioner is the Committee of Management of Mihir Bhoj Inter College, Dadri, Gautam Buddh Nagar, which is an institution aided and recognized up to the Intermediate level under the provisions of U.P. Intermediate Education Act, 1921 (Act, 1921) and therefore the provisions of the Act, 1921, the Regulations framed thereunder and the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teacher and other Employees) Act, 1971 including the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (for short Act, 1982) are applicable on the institution.
It is not in dispute that the post of Principal in the institution is lying vacant and has been notified to the Board for recommending a candidate to fill up the said vacancy. It is also not disputed that the fourth respondent (Satya Pal Singh Arya) is the senior most lecturer, with necessary eligibility qualifications, available for appointment as Officiating Principal in the institution.
It further appears that up to 30th March, 2019, the Officiating Principal of the institution was Sri Satyendra Kumar Sharma. On his attaining the age of superannuation, as to who would take over as an Officiating Principal of the institution became an issue.
The fourth respondent being the senior most lecturer in the institution staked a claim for appointment as Officiating Principal but, it appears, the management by resolution dated 28.03.2019 sought appointment of one Ajay Kumar Singh. Aggrieved by that, the fourth respondent addressed a claim before the Joint Director of Education, Meerut Region, Meerut which was rejected by order dated 29.06.2019 upon finding that, on certain charges, the management had initiated proceedings against him and had issued an order of suspension on 23.06.2019.
Aggrieved by the order dated 29.06.2019 passed by the Joint Director of Education, the fourth respondent filed Writ A No. 11088 of 2019 which was disposed off by order dated 06.08.2019. The said order is extracted below:-
"Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Harshul Bhatnagar, learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the State-respondents.
The petitioner claims that at the present moment he is Senior Most Lecturer in an aided Institution, namely, Mihir Bhoj Inter College, Dadri Gautam Buddha Nagar which is governed under the provisions of U.P.Intermediate Education Act, 1921 and Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 as well as Act No.5 of 1982.
It is claimed that the petitioner was at serial no.2 in the Institution and at an earlier point of time he was appointed as officiating Principal in 2012 as the senior most teacher in the Institution, namely, Satendra Kumar Sharma declined to officiate as Principal. The petitioner continued as such till May, 2018. When Sri Satendra Kumar Sharma again showed his willingness to officiate as Principal, the petitioner stepped down and, therefore Sri Satendra Kumar Sharma continued as Principal. While officiating as Principal he retired on 31st March, 2019. After his retirement the petitioner again claimed to be considered for being appointed as officiating Principal but the Committee of Management passed a resolution dated 28th March, 2019 appointing a person, who was at serial no.8 as officiating Principal and forwarded the papers to the District Inspector of Schools.
The petitioner protested against the appointment of a person, who was at serial no.8. The Joint Director of Education initiated a proceeding by issuing notice on 2.5.2019 fixing 4.6.2019 and the last date for hearing was fixed as 28.6.2019. In the meantime, on 23.6.2019 the Committee of Management placed the petitioner under suspension.
It is submitted that when the Deputy Director of Education was considering the claim of the petitioner, he rejected the claim on the ground that the petitioner has been placed under suspension. It is further submitted that the final order has been passed rejecting the claim of the petitioner which could not have been done.
Since the suspension of the petitioner still has not been approved by the DIOS and the maximum period for which the petitioner being Lecturer in the Institution could be put under suspension is 60 days under 16-G Clause-7 of the Act, after the expiry of sixty days, the suspension automatically come to an end. It is, therefore, submitted that the Deputy Director of Education instead of rejecting the claim of the petitioner, could have waited till the period of suspension was over.
I have considered the submissions of the learned counsel for the petitioner.
The writ petition is disposed of with the direction that either till the date petitioner's suspension is approved by the DIOS or till the date it automatically ends upon the expiry of 60 days, i.e., on 26th August, 2019, whichever is earlier, the impugned order dated 29.6.2019 (Annexure-11 to the writ petition) shall be kept in abeyance only in so far as it relates to the petitioner regarding final rejection of his claim on account of his being put under suspension. "
Pursuant to the order dated 06.08.2019, as the order of suspension was not approved in the interregnum and the period of 60 days had elapsed from the date of issuance of the order of suspension, the District Inspector of Schools, by the impugned order dated 05.10.2019, directed the management to allow the fourth respondent to officiate as Principal of the institution.
The petitioners have assailed the order dated 05.10.2019 on the ground that only when the management fails to appoint an Officiating Principal, the power to direct for appointment can be exercised by the District Inspector of Schools under sub-section (2) of Section 18 of the Act, 1982. But here, the management had already taken a decision on 28.03.2019 to appoint one Ajay Kumar Singh as Officiating Principal, therefore, the power under sub-section (2) of Section 18 was not available.
To understand the weight of the above submission, it would be useful to notice the provisions of Section 18 of the Act, 1982, which are extracted below:-
""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." "
A bare reading of the aforesaid provisions would reveal that the power to direct for appointment under sub-section (2) of Section 18 of the Act, 1982 accrues upon the District Inspector of Schools when the management fails to promote the senior most teacher under sub-section (1).
As it is not in dispute that the management has failed to appoint the senior most lecturer in the institution as an Officiating Principal and has rather passed a resolution for appointment of one Ajay Kumar Singh who, admittedly, is not the senior most lecturer in the institution, the contingency for exercise of the power under sub-section (2) of Section 18 of the Act stood fulfilled and, therefore, on that ground, the challenge laid to the impugned order dated 05.10.2019 cannot be sustained.
The next submission of the learned counsel for the petitioners is that the impugned order dated 05.10.2019 has been passed without affording opportunity of hearing to the management and without taking a decision on the prayer to approve the suspension of the fourth respondent.
In so far as not providing opportunity of hearing is concerned, it is well settled legal principle that the principles of natural justice are not to be applied as a straight jacket formula to set aside an order where ever opportunity of hearing is not provided. If it is demonstrably clear that the result would not have been different even if opportunity of hearing had been provided, the order is not to be interfered with only ground of lack of opportunity of hearing.
In the instant case, nothing has been shown that the fourth respondent was not in a position to accept the responsibility of the institution as an Officiating Principal. The only ground that has been taken to deny him the charge of an Officiating Principal is that the order of suspension has been passed against him, which, admittedly, by now has lapsed consequent to expiry of sixty days. More over, this Court while disposing off Writ A No. 11088 of 2019, had specifically dealt with the aforesaid aspect and had taken a view that if the suspension is not approved it would not last on expiry of 60 days.
As, admittedly, the period of 60 days, from the date of issuance of suspension order, has elapsed and, admittedly, the order of suspension has not been approved, the disability, if any, that the fourth respondent had, has come to an end.
Under the circumstances, the prayer of the petitioners to quash the order dated 05.10.2019 is rejected.
At this stage, the learned counsel for the petitioners has pressed the second and third prayer made in this petition, which is for a direction upon the District Inspector of Schools, Gautam Buddh Nagar (third respondent) to take a decision with regard to approval of the order of suspension passed against fourth respondent. In this regard, reliance has been placed on Full Bench decision of this Court in Chandra Bhushan Misra v. District Inspector of Schools, Deoria : (1995) 1 UPLBEC 460 so as to contend that approval can be granted even after expiry of 60 days and, if approved, the suspension would again revive even though 60 days had lapsed since the date of its issuance.
In view of the Full Bench decision noticed above, it is provided that in case the third respondent has not taken any decision, as yet, on the approval of the order of suspension passed against fourth respondent, he shall take a decision on the same, preferably, within a period of six weeks from the date a certified copy of this order is furnished in his office, after giving opportunity of hearing to the parties concerned.
With the aforesaid observations/directions, petition is disposed off.
Order Date :- 5.11.2019 Sunil Kr Tiwari