Saroj Chaudhary vs State of U.P.& Ors.

Rakesh Sharma, J.—Heard learned Counsel for the parties and perused the record.

Under challenge is an order dated 2571985 passed by the State Government, cancelling the order of appointment of the petitioner on the post of Principal, Dr. G. Nath, G. Dayal Girls Intermediate College, Unnao. It has been indicated in the order that on the date of appointment the petitioner did not possess P.G. degree i.e. M.A. After issuing the showcause notice and considering the explanation and hearing the petitioner, the impugned order was passed on 2571985. She was a confirmed Principal.

A Division Bench of this Court had admitted the writ petition on 3071985 and granted an interim order, staying the operation of the impugned order dated 2571985.

As per Sri N.N. Jaiswal, learned Counsel for the petitioner, by virtue of the interim order, the petitioner had been continuing to work as Principal of the said Institution till 15 92006 and receiving salary. The writ petition was dismissed in default on 422004. However, the writ petition was restored to its original number on 2792006.

Thus, from the above chronology of events, it is clear that the petitioner has been uninterruptedly working as Principal of the Institution since 1980 i.e. for more than 26 years. As per learned Counsel for the petitioner, the petitioner had held requisite qualifications to hold the post of Principal. She had disclosed all the material facts before the appropriate authority. The petitioner had acquired P.G. Degree (M.A.) in May, 1982 and, therefore, she has not misled the concerned authorities. A selection committee was constituted comprising of five senior experts and higher authorities of the Education Department and after a careful scrutiny, the petitioner was found fit and suitable for appointment/promotion on the post of Principal in the said college.

The petitioner was put on probation against a permanent post and was later on confirmed as Principal of the said Institution. The State Government, ignoring the submissions of the petitioner, had passed the order with a predetermined mind and prejudging the issues. It appears that the State Government acting on some complaint had passed the impugned order with a predetermined mind to remove the petitioner from the post of Principal. Now the petitioner, by virtue of continuance on the post of Principal for the last more than 26 years, has acquired a valuable right.

The learned Counsel for the petitioner has placed reliance on the following judgments in support of his submissions :

(1) Mohd. Sartaj & Anr. v. State of U.P. & Ors., 2006(1) LBESR 624 (SC) : (2006) 2 SCC 315.

(2) Smt. Shanti Devi Verma v. Deputy Director of Education, 1982 UPLBEC 365.

(3) Sharda Prasad Singh v. State of U.P. & Ors., 1992 LCD 441.

(4) Dr. M.S. Mudhol & Anr. v. S.D. Halagkar & Ors., 1993 (3) SCC 591.

(5) Ram Swaroop v. State of Haryana & Ors., AIR 1978 SC 1536.

(6) Smt. Champa Seth v. U.P. State Public Service Tribunal & Ors., 1990 UPLBEC 398.

(7) Nisha Srivastava v. State of U.P. & Ors., 2006 UPLBEC 168.

(8) Vareed Jacob v. Sosamma Geevarghese, 2005 LCD 661 (FB).

(9) Sanjeev Datta & Ors., 1995 (3) SCC 619.

(10) Vir Singh & Ors. v. State of U.P. & Ors., 2006 (3) UPLBEC 2886.

(11) Jagdamba Mani Tripathi v. State of U.P. & Ors., 2005(3) LBESR 466 (ALl) : 2005 (2) AWC 1391.

The petitioner has further submitted that the principles of natural justice have been violated. The impugned order is not a detailed reasoned and speaking order. Although, in the circumstances, it is relevant to mention that the version of the petitioner was not taken into account. The opportunity of hearing was not afforded to the petitioner. This Court while considering the case on many occasions during the last 26 years has allowed interim order to operate and the petitioner has continued to work till 1592006.

Sri Anurag Narain, learned Counsel appearing for Smt. Musheera Kidwai, a newly impleaded opposite party, has submitted that being a senior most teacher, Smt. Musheera Kidwai had been given the chance to officiate on the post of Principal on 1892006. Upon this, Sri N.N. Jaiswal, learned Counsel for the petitioner has submitted that application for restoration was already moved and this Court has restored the writ petition and the stay order to its original number on 2792006. On being asked, the learned Counsel for Smt. Musheera Kidwai, could not indicate as to whether Smt. Musheera Kidwai was formally regularly promoted on the post of Principal after following the due procedure of law. It appears to be an ad hoc administrative arrangement, which was made in the interest of students. However, after restoration of the writ petition, the interim order granted earlier became operative again as per law laid down by Hon''ble the Supreme Court of India in the case of Vareed Jacob (supra).

The learned Standing Counsel for the State of U.P. has submitted that the petitioner was not qualified to hold the post of Principal as she was not M.A. She had acquired the qualification in the year 1982 as such she has no right to be appointed as Principal. She also had not requisite experience of four years on the date of her selection. When these infirmities came into light, the State Government had intervened in the case and after considering the explanation of the petitioner, the impugned order was passed on 2571985. There is no illegality or infirmity in the impugned order. The petitioner had made a misrepresentation and, therefore, she was not entitled for quality marks. Even in the experience certificate, no date has been mentioned.

The learned Standing Counsel has placed reliance on the case reported in 2006(1) LBESR 624 (SC) : (2006) 2 SCC 315, Mohd. Sartaj & Anr. v. State of U.P. & Ors.

Sri N.N. Jaiswal has resisted the submissions of the learned Standing Counsel and reiterated his earlier arguments that the petitioner has not misrepresented her case, she had placed all the documents before the Selection Committee and informed the members of the committee about the qualifications held by her. Marks sheets etc. were also submitted by her at the time of selection. Sri N.N. Jaiswal has further submitted that the action against the petitioner was taken by the then Minister for Education, U.P. who had acted on some complaint.

Sri N.N. Jaiswal, has further submitted that initially the committee of management was the copetitioner i.e. petitioner No. 2 in this writ petition and had contested the writ petition alongwith the petitioner till September, 2006. As per Sri N.N. Jaiswal, when the application for restoration was being dealt with on 2792006, the committee of management had taken a turn around and Sri R.K. Sinha had appeared on behalf of the committee of management. He made a statement that he wants to withdraw from the writ petition and the name of the committee of management may be deleted. After this event, the committee of management was impleaded as Opposite Party No. 2 on 9102006.

It is now clear that the committee of management which was a copetitioner till 2792006, has presented its counteraffidavit on 1012007 only resisting the writ petition. The Management was earlier supporting the writ petition. The Court has taken a judicial notice of the fact that right from presentation of the writ petition on 2571985 and its admission on 3071985 till 2792006, the committee of management was acting in consonance with the petitioner being a copetitioner.

As per Sri N.N. Jaiswal when the committee of management had remained a copetitioner till 2792006, now after more than 26 years an opposite stand cannot be taken by the committee of management, taking a complete turn around in resisting the writ petition. For 21 years the Management has supported the petitioner''s continuance.

The Court had started dictating the judgment on 1012007 in the open Court. The case was adjourned on the request of Sri Pankaj Khare, Advocate for the Management on the ground that he has not brought his briefs on that date. It was further taken up on 1112007, 1212007, 1512007 and 1612007 to enable the Counsel of the Committee of Management to put forth its case.

Sri Pankaj Khare, learned Counsel has put in appearance on behalf of the committee of management of the said Institution, opposite party No. 2. Now the case has come up for hearing today i.e. 1812007 to hear the version of Sri Pankaj Khare, learned Counsel appearing for the committee of management who has taken a turn around on 2792006 to put forth his case on behalf of committee of management, opposing the writ petition. Sri Pankaj Khare has filed counteraffidavit on 1012007 only.

At the outset, Sri Pankaj Khare has opened his arguments highlighting the submissions made in the counteraffidavit. The Court has asked from Sri Pankaj Khare whether :

(1) it would be permissible under law to oppose the writ petition on behalf of the committee of management of the institution which remained a copetitioner till 26 years i.e. from 2971985 to 2792006;

(2) is it not a strange conduct of the committee of management which has been supporting of the case, version of the petitioner since 2971985 being a copetitioner (petitioner No. 2 in the writ petition) and presented the writ petition alongwith the petitioner No. 1;

(3) such a turn around of stand now is permissible under law?

(4) the statements made on affidavits in the writ petition, which was presented on 2971985 can be changed. After filing the affidavit and so many documents in support of the petitioner, Principal upto September, 2006, a different stand can be taken in the counteraffidavit filed by Sri Radha Kant Sinha, the present Manager of the Institution?

(5) would it not amount to mislead the Court by opposing the writ petition, changing its stand within less than four months? and

(6) would this conduct of the present management not come in the definition of �misleading the Court� and committing perjury?

(7) the committee of management or the employer has been properly advised or not?

(8) at the instance of a changed management having different attitude, different arguments be placed?

Sri Pankaj Khare, has submitted that the committee of management has sought withdrawal from the writ petition in the year 1993. An application for withdrawal was submitted on 35 1993 itself and the management had stopped taking any interest in the matter. The committee of management thus has withdrawn itself from the case. The petitioner No. 1, took advantage of this situation and without informing that the writ petition has been dismissed in default and the interim order granted in her favour had also stood vacated, she continued to act as a Principal of the college without any stay order.

Reacting to this, Sri N.N. Jaiswal, learned Counsel for the petitioner, Mrs. Saroj Chaudhary, has submitted that no formal order had been passed on the application seeking withdrawal from the petition. The committee of management has not filed any written objection against the continuance of the petitioner as Principal of the institution.

I have considered the arguments of the learned Counsel for the parties at length and perused the material on record.

It is relevant to mention here that the petitioner and the committee of management headed by one Sri B.B. Srivastava, the then Manager, had filed the joint writ petition on 2971985 before this Court, assailing the impugned order dated 2571985 passed by the State Government.

Here is a case where the petitioner No. 1, Mrs. Saroj Chaudhary, was a regularly selected Principal of the college on 731980. A Five Members Selection Committee was constituted to consider the cases of all the eligible candidates and interviews were held by a High Level Committee. After scrutiny of the candidature of the petitioner, she was issued an appointment order and accordingly, the petitioner had joined on 1031980 as Principal. Some interested political persons had sent a complaint to the State Government against the appointment of the petitioner and acting on the said complaint the State Government had passed the impugned order on 2571985, cancelling the appointment of the petitioner as Principal of the Institution. The petitioner and the committee of management had challenged this order on several grounds.

As per learned Counsel for the petitioner, the petitioner was fully qualified and fit for appointment. The appointment preceded a formal regular selection in accordance with law. She had submitted her marksheets and demonstrated before the Selection Committee that she had requisite experience and qualifications to hold the post of Principal. However, she had obtained her M.A. Degree in the year 1982. As far as conduct and performance of the petitioner is concerned, it has been admitted by the committee of management in all the documents that petitioner''s work and conduct has remained satisfactory.

This is a case where the petitioner has put in more than 26 years continuous service as Principal of the Institution. A Division Bench of this Court had granted an interim order on 30 71985 while admitting the writ petition and by virtue of this, the petitioner has continued in the services. It was also pleaded by the petitioner and the employer committee of management in various paras of the joint writ petition i.e. Paras No. 13, 14,15, 35, 36, 44 and 46 and Paras No. 16 and 18 of the rejoinder affidavit, that the petitioner was fully qualified and fit for the post and her appointment was legal and valid and the same was made after following due procedure as laid down in the rules. A letter dated 9101984 running in four pages was sent by Sri B.B. Srivastava, the then Manager of the Institution to the Director of Education, U.P., supporting the stand of the management in appointing the petitioner as Principal of the Institution. It was categorically indicated that the petitioner was qualified for the post and it was in the interest of the Institution to continue her as Principal of the Institution.

There is force in the argument advanced by Sri N.N. Jaiswal, learned Counsel for the petitioner that opportunity of hearing was not afforded to the petitioner and the impugned order has been passed with a predetermined mind and after prejudging the issues. This was a result of political intervention. The petitioner was not kept associated with the decision making process of cancelling a formal, valid and regular appointment order. The petitioner had submitted a detailed reply and put in appearance before the concerned authorities but her version was not properly dealt with. Scrutinizing this case in the light of doctrine of equitable estoppel, this Court is of the opinion that the petitioner has acquired a right to hold the post. Her 26 years work performance has remained satisfactory. Here the petitioner has put in more than 26 years of services as Principal. In the light of Supreme Court''s decision as reported in (2003) 2 SCC 355, B.L. Sreedhar & Ors. v. K.M. Munireddy (dead) & Ors., this Court is of the view that the petitioner could have been allowed to continue on the post of Principal held by her. The administrative arrangement by appointing Smt. Musheera Kidwai was not warranted in the present facts and circumstances of the case.

This Court has taken note of the fact that the writ petition was dismissed in default on 422004 and within four days i.e. on 822004, an application for restoration was submitted by the learned Counsel for the petitioner No. 1 which remained pending for about two years and ultimately on 2792006, the said restoration application was allowed and the writ petition was restored to its original number. The writ petition was restored in toto. Applying the principle of law laid down by Hon''ble the Supreme Court of India (Three Judges Bench) in the case of Vareed Jacob (supra), this Court is also of the view that after restoration of the writ petition, the interim order granted by a Division Bench of this Court on 3091985 has become operative and the petitioner ought to have been allowed to continue as Principal of the Institution immediately after 279 2006.

Now the Court has to deal with the strange conduct of the committee of management now represented by Sri Pankaj Khare, Advocate before whom the above questions were put by this Court to enable him to reply to the queries of the Court. Answers given by the present committee of management are not satisfactory.

In the present case, the committee of management of the Institution and the Principal of the institution had jointly filed this writ petition against the impugned order by which the petitioner No. 1, was removed from the office of Principal of the Institution. Both the petitioners i.e. petitioner No. 1 and the committee of management were parties to this case upto 2692006. Sri Pankaj Khare has tried to impress the Court that the Committee of Management by filing an application in 1993, disassociated itself from the writ petition. However, the Court after taking cognizance of the case had admitted the writ petition on 3091985. The order passed by the Division Bench of this Court on 3091985, admitting the writ petition, cannot be lightly taken by Hon''ble the Single Judge, dealing with the case. As per rules of the Court, if a party withdraws from the writ petition, a formal order has to be passed because every litigation has its consequences. The writ petitions are allowed or dismissed and sometime costs are imposed. Sometime Court''s takes judicial notice of certain conduct of parties, their Counsel or adverse orders are passed against the contesting parties. In these circumstances, there is a tradition as well as it is mandatory for the Court to pass a formal order of discharging a party from the petition. Moreover, this Court, being the Court of record as per the Constitution of India, has to maintain its record properly including the memo of the writ petitions, judgments. The details of the contesting parties, their names, age, addresses etc. are given in the writ petitions, affidavits. In the circumstances of the present case, formal order was passed by the Court on 2792006, discharging the committee of management from the array of the parties.

Now, the Court has to deal with the conduct of the former co petitioner. In the present case, taking advantage of dismissal of the writ petition in default and pending disposal of the restoration application, the new committee of management headed by Sri R.K. Sinha has appointed one Smt. Musheera Kidwai as officiating Principal in place of the petitioner on 1892006.

It is noteworthy that till 2692006, the committee of management was the petitioner No. 2 to this case and the orders passed in the petition were binding on both, the petitioners and the respondents. Although, a plea of defense has been taken now that after the stay order had elapsed, the post of Principal had become vacant and accordingly an arrangement was made by appointing Smt. Musheera Kidwai, but the committee of management has excluded from consideration that the application for restoration filed by the petitioner was pending. Its copy was served on the management''s Counsel. The committee of management was contesting the case as petitioner No. 2. Since the interim order was passed by a Division Bench of this Court on 3091985 at the instance of petitioner No. 1, and committee of management (petitioner No. 2), an order for vacation of the order dated 42 2004 was also passed by this Court at the request of petitioner No. 1 and the committee of management. Moreover, Sri R.K. Sinha, Manager of the Institution through its Counsel Sri Pankaj Khare has taken an entirely different stand supporting the case of the Government by which both the petitioners were aggrieved at the time of filing of the writ petition.

From the above events, it appears that the present Manager was interested in appointing Smt. Musheera Kidwai as such he appointed her ad hoc officiating Principal of the Institution and filed this counteraffidavit at the time of dictating the judgment on 1082007 with the motive to make all the attempts to defend his illegal and mala fide actions. This kind of conduct of Sri Radha Kant Sinha, Manager of the committee of management is highly deprecated. This Court at the time of dealing with this litigation and while dictating the judgment had confronted the management''s Counsel with the legal position and given the Counsel sufficient seven days'' time to think over and make up his mind. Accordingly the said questions were put forth before him, at the outset, while dictating the judgment further.

This Court has also noted that Sri Umesh Chandra, Senior Advocate was earlier appearing on behalf of the petitioner No. 1 the old committee of management, but now the new committee of management has engaged Sri Pankaj Khare, Advocate to take a complete turn around and plead a different case. The new Management has not placed correct facts and properly instructed the Counsel. Certain pleas were taken in the year 1985 and were pressed right upto 2692006. Within four months not only entirely different stand has been taken but also the sides have been changed i.e. from the petitioner''s side to the opposite side just to defend the appointment of Smt. Musheera Kidwai in place of the petitioner who had been continuing as Principal of the Institution for the last 26 years.

In view of above discussion, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 2571985 as contained in Annexure 18, to the writ petition. The present committee of management and the D.I.O.S., Unnao, are directed to immediately put back the petitioner on the post of Principal of Dr. G. Nath G. Dayal Girls Intermediate College, Unnao and remove the present incumbent who has been appointed on the post of Principal of Dr. G. Nath G. Dayal Girls Intermediate College, Unnao on ad hoc officiating basis in the vacancy caused due to removal of the petitioner. The petitioner, Mrs. Saroj Chaudhary, shall be entitled and be paid the held up salary (as per the learned Counsel for the petitioner from August, 2006 till her reinstatement) and she shall also be paid regular monthly salary. The learned Standing Counsel for the State of U.P., the learned Counsel for the D.I.O.S., Unnao and the committee of management of Dr. G. Nath G. Dayal Girls Intermediate College, Unnao, shall immediately inform the management of the Institution by Telephone/Email/FAX for compliance of the Court''s order. The order has been dictated in the open Court.