Committee of Management, Mahatma Gandhi Sainik Inter College vs U.P. Secondary Education Service Commission and Others

R.A. Sharma, J.—The Committee of Management, Mahatma Gandhi Sainik Inter College, Pachhayan Gaon, Etawah (hereinafter referred to as ''the College''), appointed Sri Baij Nath Singh Yadav, Lecturer in the College, as ad hoc Principal. This appointment was approved by the District Inspector of Schools (hereinafter referred to as ''the D.I.O.S.''). Sri Dinesh Chandra Dubey challenged the said order appointing Sri Baij Nath Singh Yadav as ad hoc Principal before this Court in Writ Petition No. 826 of 1990. The Committee of Management suspended Sri Dinesh Chandra Dubey and passed a resolution for his removal from service. In view of the provisions contained in the U.P. Secondary Education Service Commission and Selection Board Act, 1982 (hereinafter referred to as ''the Act''), the removal of the Principal or teacher by the Committee of Management cannot be effective unless approved by the Secondary Education Service Commissioner (hereinafter referred to as ''the Commission''). The Committee of Management accordingly sent its resolution for removal of Sri Dinesh Chandra Dubey from the post of Lecturer to the Commission. The Commission, however, rejected the proposal of the Committee vide order dated 17.2.1990. The Committee of Management has thereafter filed Writ Petition No. 6360 of 1990 before this Court. Both these writ petitions were heard together by the learned single Judge who allowed Writ Petition No. 826 of 1990 on the ground that Sri Dinesh Chandra Dubey being the seniormost Lecturer was entitled to be appointed as ad hoc Principal in view of the law laid down by a Division Bench of this Court in Km. Bandana Banerji v. Administrator, Arya Kanya Pathshala Inter College 1990 (1) UPLBEC 116 and accordingly directions were issued by the learned Judge to the Management to handover charge of the post of ad hoc Principal to Sri Dinesh Chandra Dubey within a month from the date a certified copy of the Court''s Order is produced before it. It was further directed that Sri Dinesh Chandra Dubey shall continue till a candidate duly selected by the Commission joins the post. The other Writ Petition No. 6360 of 1990 filed by the Committee of Management against the order of the Commission rejecting the proposal of the Committee for removal of Sri Dinesh Chandra Dubey from service was dismissed by the learned Judge holding that Commission''s order was a well considered and reasoned order which has been passed after hearing both the parties and after taking into consideration the facts and circumstances of the case. Against the aforesaid judgment of the learned single Judge, two Special Appeal Nos. 202 of 1992 and 196 of 1992 have been filed by the Committee of Management. We have heard both the appeals together and they are being disposed of by a common judgment.

Sri Ashok Khare, learned counsel for the Appellant, has made two submissions in support of the appeals, namely, (1) the appointment of ad hoc Principal of an Intermediate College cannot be made merely on the ground of seniority but it has to be on the basis of seniority-cum-merit and, therefore, the learned single Judge was not justified in following the writ petition of Sri Dinesh Chandra Dubey merely on the ground that he was seniormost Lecturer and (2) the order of the Commission refusing to approve the proposal of the Committee of Management to remove Sri Dinesh Chandra Dubey from service is vitiated because it was based upon a Farzi/fictitious Character Roll.

Sri A. P. Sahi, learned counsel for Dinesh Chandra Dubey, apart from disputing the above contentions, has also raised an objection to the effect that it is not necessary to decide the controversy on merit because Dinesh Chandra Dubey will attain the age of superannuation on 24.12.1997 on which date he will retire. In this connection, the learned counsel has pointed out that in the appeals filed by the Appellant in 1992, no interim order was passed by this Court with the result that Sri Dinesh Chandra Dubey is working as ad hoc Principal till date. The fact that Sri Dubey is working as ad hoc Principal till date and will retire on the said date is not disputed.

A Full Bench of this Court in Km. Radha Raizada v. Committee of Management and Ors. 1994 (3) UPLBEC 1551, has held that in the appointment of ad hoc Principal, the criteria is seniority subject to rejection of unfit. The Supreme Court in Ram Murti Singh v. District Inspector of Schools (1995) 30 ATC 620 has, while interpreting Rule 4 of the U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981, held that "ordinarily the seniormost person may expect that he would be appointed but not if he is not competent". Therefore, it is established that for appointment of ad hoc Principal, seniority is the prime consideration but the competence/merit cannot be ignored altogether. If a person is found unfit for appointment to the post of Principal even if he is seniormost, it is not necessary for the Committee of Management to appoint him as ad hoc Principal. In the instant case, the Committee of Management refused to appoint Sri Dubey as ad hoc Principal on the ground that he has been suspended and disciplinary proceedings against him have been initiated. His claim was not rejected on merit/competency. As regards the disciplinary proceedings and the proposal of removal from service of Sri Dubey passed in pursuance thereof, the Commission has held that the same was vitiated being contrary to Rules and Regulations. In view of the order of the Commission, the disciplinary proceedings and the order passed by the Management to remove Sri Dubey came to an end. It is well settled that an order of suspension of an employee ceases to exist after the disciplinary proceedings are concluded. Therefore, the ground on which Sri Dubey was refused ad hoc promotion to the post of Principal does not survive. That apart, there is no finding that Sri Dubey was not competent to perform the duly of Principal. In fact he was appointed earlier as Acting Principal and he was removed from that post by the Resolution of the Committee on account of his suspension and initiation of disciplinary proceedings against him. Therefore, the rejection of the claim of Sri Dinesh Chandra Dubey for appointment to the post of ad hoc Principal cannot be sustained. The judgment of the learned single Judge in Writ Petition No. 826 of 1990 has to be upheld and the Special Appeal No. 202 of 1992 filed against the said judgment has, therefore, to be dismissed. The first contention of Shri Khare is accordingly rejected.

The other Writ Petition No. 6360 of 1990 is directed against the order of the Commission refusing to approve the action of the Management for removal of Sri Dubey. The Commission had disapproved the action of the Management on several grounds, one of which is the appointment of Manager of the College as Enquiry Officer. Regulation 35, Chapter III framed under the U.P. Intermediate Education Act which provides for appointment of Enquiry Officer is reproduced below:

On receipt of a complaint or an adverse report of fact of a serious nature, the Committee may in the case of a teacher appoint the Head Master or Principal or Manager as the enquiry officer (or the Manager may himself set up the enquiry if such power has been delegated to him by the Committee under the Rules), and in the case of Head Master or Principal, small sub-Committee with instructions to submit the report as expeditiously as possible.

According to the said Regulation, in respect of a teacher, a Head Master, Principal or Manager can be appointed of the Enquiry Officer but in the case of Principal or Head Master, a Small Sub-Committee has to be appointed for conducting disciplinary enquiry. In the instant case, Sri Dubey was a Lecturer and he was suspended and tried as a Lecturer and not as a Principal or Head Master. Therefore, the appointment of the Manager as Enquiry Officer under Regulation 35 cannot be said to be vitiated on that account. But the Manager who was appointed Enquiry Officer was an "interested person" in the matter. At least three of the charges levelled against Sri Dubey relate to insubordination and non-compliance of the orders of the Manager and the D.I.O.S. These charges are based on the letters of the Manager himself. Sri Dubey has denied the charges of insubordination and disobedience of the orders. Whether the allegations levelled by the Manager against Sri Dubey about insubordination and disobedience of orders are or are not correct was a question to be decided by the Enquiry Officer. The Manager was thus a person vitally interested in getting the charges levelled against Sri Dubey proved. In U.P. State v. Mohammad Noor AIR 1958 SC 86 , the diciplinary proceeding was held vitiated on account of the Enquiry Officer himself giving evidence In the enquiry. On that ground, the Enquiry Officer became disqualified to hold the enquiry because the two roles (one of Enquiry Officer and the other of a witness) could not be played by one and the same person. The reason was that such an Enquiry Officer was not expected to decide which of the two versions is correct. In The Andhra Pradesh State Road Transport Corporation, Hyderabad and Another Vs. Sri Satyanarayana Transports (Private) Ltd., Guntur and Others, , the Supreme Court held that a person who tries a cause should be able to deal with the matter objectively, fairly and Impartially. Such a person, therefore, "must be able to act above suspicion of unfairness." The relevant extract from the said decision of the Supreme Court is reproduced below:

It is an elementary rule of natural justice that a person who tries a cause should be able to deal with the matter before him objectively, fairly and impartially. As has been observed in the Jewitt''s Dictionary of English Law, "anything which tends or may be regarded as tending to cause such a person to decide a case otherwise than on evidence must be held to be biased." If a person has a pecuniary interest in the case brought before him, that is an obvious case of bias which disqualifies him to try the cause. If a person is hostile to a party whose cause he is called upon to try, that again would introduce the infirmity of bias and would disqualify him from trying the cause. In dealing with cases of bias, it is necessary to remember that "no one can act in a Judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind." The broad principle which is universally accepted is that a person trying cause even in quasi-Judicial proceedings, must not only act fairly, but must be able to act above suspicion of unfairness.

In J. Mohapatra and Co. and Another Vs. State of Orissa and Another, , the Supreme Court declared that the author of the book should not be appointed as member of the Committee which is to select the books. In this connection, the Supreme Court has held as under:

It is, however, unnecessary to go further into this controversy for the real question in this Appeal is of far greater importance. That is the question of bias on the part of some of the members of the Assessment Sub-Committee. This question has been answered against the Appellants and forms the subject-matter of the third and fourth grounds on which the High Court rested its decision. Nemo Judex in causa sua, that is, no man shall be Judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in Courts of Law are open to the public except in those cases where for special reason the law requires or authorizes a hearing in camera. Justice can never be seen to be done if a man acts as a Judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceedings but also to quasi-judicial and administrative proceedings.

The Supreme Court further held that the actual bias is not material but what is relevant is the possibility of such bias and if there is a possibility of a bias on the part of a member, he is disqualified to be the member of the Committee.

In the instant case, the Manager was the complainant and many of the charges levelled against Sri Dubey were based on the allegations contained in his letters. The Manager was thus disqualified to hold the disciplinary proceedings against Sri Dubey because she cannot be a Judge in her own cause.

As the order of the Commission can be sustained on the above ground alone, it is not necessary to deal with other points on the basis of which the Commission declined to approve the Management''s action. It is also not necessary to deal with the second contention of Mr. Khare, although it has been seriously disputed by the learned counsel for Sri Dubey, because the disciplinary proceedings conducted against Sri Dubey were vitiated on account of the fact that the Enquiry Officer was biased and a "person interested'' in the dispute. Special Appeal No. 196 of 1992 is also liable to be dismissed.

For the reasons given above, both the appeals are dismissed with costs.