Ram Chandra Singh vs State of U.P.and Others

N.K. Mehrotra, J.—This is a writ petition under Article 226 of Constitution of India for issuing a writ in the nature of certiorari to quash the impugned order dated 16.12.2002 passed by the Authorised Controller of the Bachchoo Lal Inter College Pura Bazar District Faizabad/ the Associate District Inspector of Schools, Faizabad as contained in Annexure No.1 to this writ petition and orders dated 13.12.2002 and 17.12.2002 passed by the District Inspector of Schools, Faizabad as contained in Annexure Nos.3 and 2 respectively to the writ petition and further for a writ in the nature of mandamus commanding the opposite parties for not giving effect to the aforesaid orders and to command the opposite parties to appoint the petitioner as the officiating/ adhoc principal of the said college.

In the instant writ petition, there is a dispute to officiate as Principal in Bachchoo Lal Inter College Pura Bazar District Faizabad after the death of the officiating principal Sri Ashok Kumar Pandey who died on 22.11.2002. At present the opposite party No.6 Rajendra Prasad Shukla is officiating. The opposite party No.7 Rajendra Pratap Singh is the next in seniority to Rajendra Prasad Shukla in the college. Both the opposite parties Nos.6 and 7 have filed the counter affidavits. There is no dispute with regard to facts of the case.

The post of the Principal in the college fell vacant on 1.7.2002 due to retirement of the then Principal and the opposite party No.6 Rajendra Prasad Shukla was appointed as officiating Principal on 1.7.2002. Shri Rajendra Prasad Shukla resigned from the post of Principal on 4.7.2002 due to his some personal reasons. The resignation of the opposite party No.6 Rajendra Prasad Shukla was accepted on 17.7.2002. Due to resignation of Rajendra Prasad Shukla, the opposite party No.6, the post of the Principal of the College again fell vacant on 18.7.2002. The Authorised Controller of the College sought the consent of the next senior lecturer but the lecturers upto serial Nos.4 in seniority declined to accept the post of officiating Principal. Ultimately, the fifth lecturer in seniority, Shri Ashok Kumar Pandey was appointed as officiating Principal of the College on 18.7.2002 and he died on 22.11.2002. Due to sudden demise of Shri Ashok Kumar Pandey, the officiating Principal of the College, the post of Principal again fell vacant on 22.11.2002 and the dispute started for officiating on the post of Principal. The Authorised Controller sought permission from the District Inspector of Schools and on 4.12.2002; the District Inspector of Schools took the decision that after the death of Shri Ashok Kumar Pandey, the next senior after Ashok Kumar Pandey be appointed as officiating Principal vide order dated 4.12.2002 as contained in Annexure No.5. On 13.12.2002, the District Inspector of Schools cancelled his earlier order dated 4.12.2002 without giving any opportunity of hearing to the petitioner and he relied on a D.O. letter dated 2.6.1992 issued by the Director of Education that the senior most lecturer shall be given the charge of the officiating Principal. On 16.12.2002, the Authorised Controller/Associate District Inspector of Schools, Faizabad appointed Shri Rajendra Prasad Shukla again in place of the petitioner.

The issue to be decided in this writ petition is as to whether once the lecturer being a senior most lecturer has declined, foregone or resigned from the post of the officiating Principal, whether he can claim for the same post of the officiating Principal again?

The law is well settled by the earlier decision of this Court. The learned counsel for the petitioner has relied on Satya Vir Singh v. District Inspector of Schools. Bulandshahrand others, ALR 1995 (25) Allahabad 139 (Single Judge); Prem Murti Dixit v. Sri Satyavir Singh and others. 1996 (1) ESC 362 (Allahabad)(Division Bench); Smt. Sudesh Kakkar v. Regional Inspectrors of Girls Schools, Meerut. Special Appeal No.141 of 1993 (Division Bench); Virpal Singh v. District Inspector of Schools, Hardoi and others, 1993 (2) ESC 477 Allahabad and Hari Ram Yadav v. State of U.P. and others. 2001 (2) ESC (Allahabad) 594. In all these cases, the ratio of the decision is that once an offer has been declined, the senior most lecturer is not entitled to claim the right to function as Officiating Principal of the Institution.

On the other hand the learned counsel for the opposite parties has placed reliance on the Committee of J.K. Inter College, Basti v. District Inspector of Schools, Basti. 2000(1) UPLBEC 621 (Single Judge). In this case the learned Single Judge has referred a Full Bench decision of this Court in Radha Raizada v. Committee of Management, 1994 (2) ESC 345.

The ratio of the Full Bench decision is that the adhoc appointment on the post of Principal should be made by promotion from amongst the senior most lecturers after notifying the vacancy to the commission. The Full Bench has not dealt with the situation regarding the senior most teacher who has any subsisting right to claim to officiate as Principal on the subsequent occasion after declining once. For this purpose the law is well settled by the aforesaid Division Bench judgments in Satya Vir Singh v. District Inspector of Schools, Bulandshahr (supra); Prem Murti Dixit v. Sri Satyavir Singh and others (supra) and Smt. Sudesh Kakkar v. Regional Inspectrors of Girls Schools, Meerut (supra). In view of the aforesaid Division Bench judgments of this Court in which the ratio of the decision is that once a senior most teacher is promoted to function as Officiating Principal and he declines to accept the post or resigns after accepting the post, he cannot again claim the right to function as Officiating Principal, I am not inclined to follow the Single Judge''s decision in Committee of J.K. Inter College, Basti v. District Inspector of Schools. Basti (supra) referred by the opposite parties.

The learned counsel for the petitioner has also argued that the District Inspector of Schools has no right to review its order dated 4.12.2002 and in support of his contention, he has referred Jaswant Singh and another v. District Inspector of Schools and others, 1980 UPLBEC 43, Mohan Lal Sharma v. The District Inspector of Schools, Muzaffarnagar and others, 1982 UPLBEC 213, Shyam Sunder Singh v. District Inspector of Schools and others. (1994) 2 UPLBEC 834 and Gauri Shanker Rai and others v. Dr. Ram Lakhan Pandey, DIPS. Ballia and others. 1984 UPLBEC 166 but in view of the findings given above, the question whether the District Inspector of Schools was competent to review his order dated 4.12.2002 or not, need not be decided in this case.

The learned counsel for the opposite party No.6 has argued that the petitioner has an alternative remedy to move representation before the Director of Education in terms of Clause VII of U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981. Since this Removal of Difficulties Order has been repealed, this argument is rejected.

In view of the above, the writ petition is allowed. The impugned orders dated 16.12.2002 (Annexure No.1), dated 13.12.2002 (Annexure No.3) and dated 17.12.2002 (Annexure No.2) are quashed. The petitioner, being senior most lecturer after deceased Principal Shri Ashok Kumar Pandey, shall work as Officiating Principal in Bachchoo Lal Inter College Pura Bazar District Faizabad after rejection of the claim of the senior lecturers who have resigned, declined or foregone the post of Officiating Principal at any time.

(Petition allowed)