Dr. Govind Singh Niranjan vs District Inspector of Schools and Others

R.K. Mahajan, J.—This order will dispose of two Writ Petitions No. 19557 of 1996 and 20651 of 1996 and they pertain with respect to the controversy of same subject matter, i.e., non-interference in the working of duty as a Principal of the D. V. Post Graduate College, Jalaun and stoppage of salary from March, 1996 to May, 1996. These two writ petitions have raised a very interesting question and would show how management of U.P. Educational Institutions and how the U.P. Higher Education Service Commission is functioning and how the system with respect of regular recruitment of the Principal has failed for want of indifference and listless attitude of the management and the authorities who control the functioning of the colleges. This question also involves the interpretation of Statute 12.20. Statute 12.20 is quoted below for advantage:

12.20. When the office of the Principal of an Affiliated College falls vacant, the Management may appoint any teacher to officiate as Principal for a period of three months or until the appointment of a regular Principal, whichever is earlier. If on or before the expiry of the period of three months, any regular Principal is not appointed, or such a Principal does not assume office, the senior-most teacher in the College shall officiate as Principal of such College until a regular Principal is appointed.

In these two writ petitions again the interesting point which arises is that if a senior-most teacher including the present claimant who do not want to shoulder the responsibility when there is a trouble in the college and they are unable to control and a junior person offered himself to officiate as Principal and he officiated for four years and then the Respondent No. 4 in Writ Petition No. 20651 of 1996, Dr. Vijay Kumar Srivastava, who is now senior-most person and previously in disturbed times he resigned and when the peace was restored, he offers to join and Management Committee gives him posting without regular selection and the present incumbent the Petitioner is shunted out. How far it would be legal and Justified to give him (Shri Vijay Kumar Srivastava) appointment who is a senior-most teacher when he ran from the war field like a coward man or like deserted soldier and later on when the peace was restored, would it be in all fairness and propriety to give him appointment by the Management without a regular selection who had lacked the courage to handle the situation at that time. Is it a fair procedure and justice to remove an ad hoc officiating Principal after four years without a regular selection and substitute a person like a king who ran away when the Rome was burning and expressed his inability to serve the institution in that capacity. Is he not estopped by his act and conduct and what discipline he would teach to the students and how he would control the affairs?

These two writ petitions would pertain to these questions as well as other provisions of the Act. Law is not divorced from realities of life and while interpreting law, it should be interpreted taking into consideration new situation and to mould the relief as sometimes Legislature or law-makers do not foresee all possibilities/contingencies.

Now coming over to the facts of the case. Resume of facts of Writ Petition No. 19557 of 1995 are as under:

The Petitioner seeks a writ in the nature of certiorari quashing the order dated 27.5.1996 (Annexure No. 9) passed by the Respondent No. 1 and the order dated 31.5.1996 passed by the Respondent No. 3 and praying further that the Petitioner be paid salary in the grade or Principal which he has been getting since 23.5.1992 along with arrears of salary for the months of March, April and May, 1996 and further prayer has been made for regularisation of service of the Petitioner as Principal.

Annexure No. 9 is, a letter from District Inspector of Schools to the Management Committee that Dr. Govind Singh Niranjan''s bill would be passed according to the grade of Lecturer only and request was made to send relevant documents. Annexure No. 10 to the writ petition is a letter dated 31.5.1996 from the Director, Higher Education U.P., Allahabad to the District Inspector of School, Jalaun informing him that officiating Principal has no right to get salary of Principal in the grade of Rs. 4,500--Rs. 7,300 and is only entitled for Lecturer grade and the order for recovery was also issued. Admittedly, he was getting his salary as Principal till the receipt of these two letters. The Petitioner claims that he was appointed as officiating Principal on 23.5.92 and as per procedure, his signatures were also attested by the District Inspector of Schools. He further claims that he used to prepare the bill of teachers and employees in the capacity of the Principal. His name was published as Principal in the College bulletin. He was getting pay scale of Principal till March, 1996. His appointment was approved by the Vice-Chancellor on 9.11.1992 on the recommendation of the Management Committee on 29.8.92 as per Annexure No. 5 of connected Writ Petition No. 20651 of 1996. There is no dispute on this fact. Petitioner''s submission is that non-payment of salary and impugned orders are bad in law and he prays for quashing of the same.

In another writ petition No. 20651 of 1996 filed in July, 1996, the Petitioner prayed for quashing the order dated 24.6.1996 (Annexure No. 13). Shri Vijay Kumar Srivastava who appointed as officiating Principal being the senior-most Lecturer with the approval of the Management Committee till further orders. When Shri Vijay Kumar Srivastava has resigned from the post of officiating Principal on account of family circumstances on 23.4.1991, the resignation of Shri Srivastava was accepted and thereafter the Petitioner was appointed. Earlier to it, Shri S. P. Saxena vide Annexure No. 16 has also refused to accept. The Petitioner has challenged the appointment of new Principal on the ground that appointment of Dr. Vijay Kumar Srivastava is illegal and he cannot be appointed as officiating Principal suddenly in order to punish the Petitioner. He further challenged that the management has committed a mistake by appointing the Respondent No. 4 as Principal. Shri R. G. Padia, learned Counsel for the Petitioner submits that the Respondent No. 4 raised his claim when the peace and normalcy has returned. He further submits that the Petitioner wanted betterment of the management in day-to-day affairs. He further submits that once a resignation has been accepted, the Petitioner cannot be refused unless a regular selection takes place.

In both the cases, Shri Srivastava filed counter-affidavit refuting the allegations and claimed that the management has right to appoint senior-most teacher by virtue of statute.

Shri. V. M. Sahai, learned Counsel for the Respondent No. 4 submits that the Petitioner was appointed as Principal on ad hoc basis and he is much junior in seniority to Dr. Vijay Kumar Srivastava. He further submits that there is no bar on the management to replace Dr. Govind Singh Niranjan, the Petitioner, when the family circumstances of Sri Srivastava have changed. There is no bar to appoint senior-most person as a Principal till regular selection is made. Shri Sahai further submits that officiating Principal has got no right to get pay of Principal and also no right to hold post as senior most enjoys better right than the junior-most. Admittedly, Shri Vijay Kumar Srivastava is senior to the Petitioner.

After hearing learned Counsel for the parties at length, we are of the considered view that even an ad hoc employee who has officiated for more than four years, in the aforesaid circumstances, cannot be thrown out without following the fair procedure or till the regular appointment takes place by the Commission. It is settled principle of law of acquiescence that when a person has officiated for a long time in the stop-gap arrangement or due to salckness or other circumstances, the regular rule is deemed to have been relaxed taking into consideration the necessities of circumstances. In service law jurisprudence in some cases, the Apex Court is of the view that officiation for a long time gives a right of regularisation. In this case at least he would not be given a right of regularisation but considering the circumstances, the Petitioner should not have thrown out till a regular appointment of the Principal is made.

Language of the Statute has been referred above. Since there was no willing Principal and Shri Srivastava did not accept the Job, may be the circumstances which have been mentioned in the application and may be on account of to run away from the disturbed conditions of the college. He cannot all of a sudden claim for the post of Principal unless he is duly selected by the regular procedure which is mentioned under U.P. Higher Education and Service Commission Act. Statute should be interpreted in the light of the circumstances. The emphasis is that the management has a right to appoint Principal for three months or until the appointment of the regular Principal, whichever is earlier. It is relevant to quote Lord Denning''s observation regarding interpretation of the statute in dispute.

Lord Denning in "The Discipline of Law" remarked that:

Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of funding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ''force and life'' to the intention of the legislature. That was clearly laid down, by the resolution of the Judges in Heydon''s case, and it is the safest guide today. Good practical advice on the subject was given about the same time by Plowden.... Put into homely metaphor it is this: A Judge should ask himself the question : If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A Judge must not alter the material of which it is woven, but he can and should iron out the creases.

Coming over now to the procedure for appointment as mentioned in U.P. Higher Education Services Commission Act, 1980 (hereinafter referred to as the Act). Section 11 of the Act deals with powers and duties of the Commission. Section 12 of the Act deals with procedure for appointment of teachers. u/s 12 (2) of the Act, the management is under the duty to intimate the existing vacancies and the vacancies likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as they may be prescribed. There is duty of the Commission u/s 13 of the Act to hold interview and to prepare merit List. Commission is to select competent persons after due test. u/s 17 of the Act, the Commission may require the management of any college to submit such information or return regarding the matters referred to in Section 11. The management is bound to send the Information. It appears that the management and Commission are not working properly as lot of litigation is pending which has come to our notice. The management and the Commission cannot sleep over the matter in not filling the vacancies and to run the institution. This ad hocism must be stopped as to improve the standard of the education to create discipline in the education and also to improve the standards. Rules and Acts have been framed but there is no strict compliance of the Act and statute due to local college politics. It is high time that the State Government should have looked into this problem in the light of above observation. We also do not accept the argument of Shri Sahai learned Counsel for the Respondent that Shri Vijai Kumar Srivastava can join at any time and Shri Govind Singh Niranjan can be removed without following the fair procedure. It would amount to disincentive with regard to a person who is working for four years to keep the college in running condition.

So many authorities have been quoted by both sides. On the aspect of resignation, Shri Padia has relied upon Raj Narain Vs. Indira Nehru Gandhi and Another, , in which it is held that service of a Government servant normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority unless there is any law or statutory rule governing the conditions of the service to the contrary. This is a very well-settled principle and in the facts and circumstances, Shri Srivastava''s resignation is only valid till regular appointment in his place is made.

Shri R.G. Padia has also relied upon Virpal Singh v. District Inspector of Schools, Hardoi and Ors. 1993 (2) SCC 477 It relates to relinquishment of claim by a senior-most teacher for the stop-gap arrangement estops him from challenging the same. However, he is entitled to apply afresh at the time of selection made by the Commission. Shri Padia further relied upon Chandrika Prasad Upadhyay v. District Inspector of Schools, Jaunpur and Ors. 1993 UPLBEC 1951. Petitioner was appointed as officiating Principal for a period till final selection is made. His appointment was approved by the D.I.O.S. Resolution was passed for removing the Petitioner without affording any opportunity. Similarly in this case, appointment has been approved by the Vice-Chancellor and the Principal was not afforded opportunity. In fact, there is violation of Article 21 of the Constitution of India as since the Petitioner has enjoyed the status of Principal which involved the dignity and status and he could not have been thrown out without observing fair procedure and principle of natural Justice which is core spirit of Article 21 of the Indian Constitution, as discussed above.

On the principles discussed above, the removal of the Petitioner is bad in law and is hereby quashed. Regarding salary, when a person has officiated as a Principal and performed all the duties of Principal he cannot be denied the salary for the respective post. He has been performing his duties as officiating Principal and is entitled to get all the emoluments of the officiating Principal till regular selection is made.

Shri Sahai has also relied upon the following authorities:

(i) Kumari Madhu Chauhan v. District Inspector of Schools and Ors. 1988 UPLBEC 397.

(ii) State of Punjab and Others Vs. Tara Singh Shahi, .

The aforesaid authorities quoted by Shri Sahai are not applicable in the facts and circumstances of the present case as the facts of every case are not similar to another case.

We would like to quote the excerpt from the book. ''The Discipline of Law" by Lord Denning at page 314 on precedents:

Let it not be thought from this discourse that I am against the doctrine of precedent. I am not. It is the foundation of our system of case law. This has evolved by broadening down from precedent to precedent. By standing by previous decisions, we have kept the common law on a good course. All that I am against is its too rigid application a rigidity which insists that a bad precedent must necessarily be followed. I would treat it as you would a path through the woods. You must not let the path become too overgrown. You must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and brambles. My plea is simply to keep the path to justice clear of obstructions which would impede it.

To conclude, we are of the view that all the impugned notifications in both the writ petitions are quashed and the direction is given to the management to continue Dr. Govind Singh Niranjan as officiating Principal till a regular selection takes place. The Commission is directed to complete the process of regular selection within four months after a week of receipt of certified copy of this order. The management is to send requisition within a week of receipt of the certified copy and the copy be supplied within twenty four hours to the parties. It may be clarified that direction to expedite the process of selection has been passed to avoid indiscipline in the institution and remove uncertainty from the minds of the teachers. Right to education has been declared by Apex Court to be fundamental right in the light of Article 21 of the Constitution of India. The Committee of Management, the Higher Education Commission and the State Government are answerable to the public under the doctrine of ''public-accountability'' if they fail to monitor the proceedings of vacancies under the Act. All of them would be held responsible for dereliction and misfeasance of duty. The State Government through the Directorate of Education should not hesitate to withdraw recognition of the College if necessary steps are not taken by the Management to fill the post within time allowed. This is absolutely necessary to maintain discipline and good standard in the education. It may not be forgotten by all the authorities that they can be saddled with the special and compensatory costs if they do not perform statutory duties with promptitude.

A copy of this judgment be sent to Secretary (Education), Secretariate, Lucknow for information and necessary action.

In view of the aforesaid discussions, the Writ Petition No. 20651 of 1996 is allowed with the direction that the Respondents will not interfere with the working of the Petitioner as officiating Principal of D.V.P.G. College, Jalaun-at-Orai till regularly selected candidate is appointed and if charge has been taken from the Petitioner, it shall be handed over to him forthwith, and, Writ Petition No. 19557 of 1996 is allowed with the direction that the Petitioner shall be paid all the emoluments of officiating-principal for the period of his working.

The parties will bear their costs.