Surendra Prasad Agnihotri vs The State of U.P. and Others

A.P. Sahi, J.—Sri Y.K. Saxena, learned Counsel for the petitioner, has raised 7 fold contentions. Firstly, that the order is without jurisdiction as the District Inspector of Schools had no jurisdiction to render his opinion while attesting the signature of officiating Principal under the provisions of U.P. Act No. 24 of 1971 Act; secondly, the District Inspector of Schools could not have proceeded to virtually induct a person as an officiating Principal without there being any resolution of the Committee of Management; thirdly, in view of the decision in the case of Ram Lal Prasad v. State of U.P. and Ors. 1987 AWC 1314 , and other decisions relied upon, there is no occasion to eliminate the petitioner from the office of officiating Principal; fourthly, the impugned order amounts to reverting the petitioner which is contrary to the legal principles as laid down in the case of M.S. Mudhol and Another Vs. S.D. Halegkar and Others, fifthly, the choice of the District Inspector of Schools in relation to respondent No. 8 Harindra Prasad is absolutely unwarranted as the said respondent is an unsuitable candidate and the Committee of Management has never recommended him for being appointed as such; sixthly, unless and until a selected candidate arrives from the Board, there is no occasion to bring about this transformation as this would result in arbitrariness and a junior person would be allowed to act as Head of the institution; and finally that the petitioner has to be regularized for which the information has been tendered in response to the letter sent by the District Inspector of Schools dated 28.7.2007, a copy whereof has been appended as Annexure-15 to the writ petition. It is urged that the petitioner''s services have been recommended to be extended by the Committee of Management. The prayer is to quash the impugned order and restore the status of the petitioner as officiating Principal of the institution.

Sri Saxena apart from the aforesaid submissions, prayed that a common judgment be delivered along with Writ Petition Nos. 65692 of 2009 and 63808 of 2009. These 2 writ petitions have been filed by the Committee of Management and one by the senior most Lecturer Sri Satendra Kumar, who is claiming his right to officiate as Principal of the institution.

I have considered all these submissions and it is not necessary to call upon any of the respondents to answer the aforesaid submissions at this stage keeping in view the fact that the petitioner cannot succeed on any of the counts which arguments have been advanced before this Court.

The first issue is about the jurisdiction of the authority to pass the order. For this, in my opinion, the first issue before this Court is as to what is the legal right of the petitioner to claim such a relief. The petitioner was working as officiating Principal of the institution. It is not disputed by Sri Saxena that the date of birth of the petitioner is 27.9.1947. In this view of the matter, the petitioner has already attained the age of superannuation on 21.9.2009. Having become of 62 years of age, the petitioner, therefore, as per Regulation 21 of Chapter III has retired from service.

The only issue which now remains to be considered in relation to the claim of the petitioner is as to whether he can continue as officiating Principal or not. This issue has already been decided by a Division Bench of this Court in the case of Hari Om Tatsat Brahma Shukla v. State of U.P. and Ors., Special Appeal No. 1454 of 2006 decided on 27.11.2006, a copy whereof is Annexure-14 to the writ petition. Sri Saxena contends that the said judgment proceeds on an erroneous assumption of law inasmuch as the earlier decision which was rendered in the case of R.C. Gupta (Dr.) v. State of U.P. and Ors. (2002) 1 UPLBEC 767, does not govern the issue at all and, therefore, the Division Bench decision in the case of Hari Om Tatsant Brahma Shukla (supra) has been wrongly decided.

Having considered the aforesaid submissions, it is more than clear that there is a direct Division Bench answering the arguments advanced on behalf of the petitioner. The question as to whether the said decision has been correctly decided or not is not within the realm of this Court inasmuch as sitting singly, this Court cannot comment upon the correctness or otherwise of the said decision and it is open to the petitioner to advance his submission in relation to the said judgment by filing an appeal and getting a reference made if permissible in law in view of the law laid down by this Court in the Full Bench decision of this Court in the case of Oriental Insurance Co. Ltd. and Others Vs. Verda Ram and Others,

The question as to whether the petitioner can be regularized or not is a question of framing of Rules by the State Government. No Rule has been framed which may confer any benefit to the petitioner keeping in view the contention raised in this regard. Merely because a communication has emanated from the District Inspector of Schools calling for certain information that by itself does not confer any right on the petitioner to claim regularisation. The said argument is also misconceived and is rejected.

Accordingly, the question as to whether the petitioner, after attaining his age of superannuation, has a legal right to claim the said post or not stands answered in the terms referred to herein above. Once this is held that the petitioner has no right to continue on the post of officiating Principal, this Court would not issue a futile writ in favour of the petitioner even if the order of the District Inspector of Schools is without jurisdiction. The petitioner, in my opinion, has not been reverted. He was holding the officiating charge and the charge has been taken away in view of the law which has been referred to herein above. The question of suitability of Harindra Prasad, therefore, is irrelevant for the petitioner. The cause of action for the petitioner is entirely different from the other 2 writ petitions and, therefore, there is no necessity of combining this writ petition along with the other 2 writ petitions. Whether the selected candidate has joined or not is not the concern of the petitioner in view of the conclusions drawn herein above and, therefore, the writ petition has no merit and is, accordingly, dismissed.