HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 33 Case :- WRIT - A No. - 66347 of 2011 Petitioner :- Smt. Duleshwari Devi Respondent :- State Of U.P. & Others Petitioner Counsel :- Radha Kant Ojha,J.K. Yadav Respondent Counsel :- C.S.C.,Satya Prakash Singh Hon'ble Sudhir Agarwal,J.
1. As agreed and requested by learned counsel for the parties I proceed to hear and decide the matter finally at this stage under the Rules of the Court.
2. The writ petition is directed against the order dated 31.10.2011 (Annexure 5 to the writ petition) whereby District Inspector of Schools, Ballia (hereinafter referred to as "DIOS") has approved and promoted Smt. Shashi Singh, respondent No.4, Lecturer in Civics in Government Girls Intermediate College, Ballia (hereinafter referred to as "College") to function as Principal of the College being the senior most lecturer till regular arrangement on the said post of Principal is made.
3. The facts in brief giving rise to the present dispute reads as under.
4. The petitioner was initially appointed as C.T.Grade teacher in Government College on 30.06.1978, got L.T. Grade on 17.11.1980 and was ultimately promoted as Lecturer in Mathematics on 16.01.1996. It is not disputed that respondent No.4 Smt. Shashi Singh, Lecturer-Civics is senior to the petitioner. One Jalish Fatima Beg was the Principal of the College and on attaining the age of superannuation retired on 30.6.2005. She thought to hand over charge to the senior most lecturer but could not find due to reluctance to take over charge hence she (Jalish Fatima Beg) wrote a letter on 29.6.2005 to DIOS seeking his guidance in the matter. The DIOS made an endorsement on the letter on the same day ie. 29.6.2005 that whoever senior most available, charge may be handed over to him/her and in case he/she does not take over charge, certificate to this effect be produced before DIOS.
5. Jalish Fatima Beg handed over charge to the next senior most lecturer Km. Archana Chatterjee, Lecturer (History), who wrote a letter on 30.6.2006 to DIOS stating that she is not willing to take over charge of the Principal and therefore it may be handed over to some one else. Similar letter was given by the next senior most lecturer Ramesh Pandey, lecturer (Physics) and the same thing repeated by Smt. Afros Bano, Lecturer, Smt. Rajeshwari Nigam, Lecurer and Smt. Shashi Singh, Lecturer (Civics) respondent No.4 vide letters dated 01.7.2005, copies whereof are on pages 29, 30, 31 and 32 to the writ petition. Consequently a report was prepared in the office of DIOS giving all these facts whereupon an order was passed by DIOS directing to hand over charge to the next senior most teacher i.e. Smt. Duleshwari Devi (petitioner). The charge thus was taken over by petitioner on 1.7.2005. She also executed a relieving certificate. (a copy whereof has been filed as Annexure 4 to the writ petition). It is said that since then petitioner is performing the duties of Principal of the College till regular arrangement is made.
6. After almost six and a half years, respondent No.4 set up a claim for the first time on 5.8.2011 before District Magistrate, Ballia who directed management and DIOS to look into the matter whereafter DIOS sought seniority list of Lecturers from the College and has passed the impugned order dated 31.10.2011 directing to hand over charge of Principal to respondent No.4 till substantive arrangement is made on the said post.
7. It is contended by Sri R.K.Ojha, Advocate, learned counsel appearing for the petitioner that once senior teachers have declined to take over charge as Principal, and, it is handed over to senior teacher next in order, later on the senior incumbent, who has declined to take over charge of the Principal, cannot turn around and claim the said charge. Reliance is placed on this Court's decisions in Sundershan Kumar Vs. State of U.P. and others (Special Appeal No.959 of 2006 decided on 15.9.2006 and Smt. Sudesh Kalkkar Vs. Regional Inspectress of Girls Schools, Ist Region, Meereut and others (Special Appeal No.141 of 1993), and Archana Singh (Smt.) Vs. State of U.P. and others 2009(3) UPLBEC 2348 and Ashok Kumar Jain Vs. State of U.P. & Others 2008(2) UPLBEC 1159. He also contended that District Magistrate has no authority in these matters. The DIOS having acted under the directions and orders of District Magistrate has acted wholly illegally. The petitioner has continued to work as principal in officiating capacity for the last more than six years and on a mere change of thought by respondent No.4, the said arrangement could not have been upset in such an illegal and arbitrary manner.
8. On behalf of respondents Sri Satya Prakash Singh and Sri Deepak K.Jaiswal, Advocates, besides learned Standing Counsel appear. They sought to support the order of the DIOS relying on another Hon'ble Single Judge's judgment in Dhanesh Kumar Sharma Vs. State of U.P. 2004 UPLBEC (3) 2297.
9. The respondent No.4 Smt. Shashi Singh has also filed a detailed counter affidavit through her counsel Sri Deepak Kumar Jaiswal. It is said that DIOS, by way of endorsement, directed Jalish Fatima Beg to hand over charge to the senior most lecturer and there was no order of promotion to work as Principal as officiating capacity. The respondent no.4 is working as Lecturer (Civics) having been selected through Public Service Commission as a direct recruitee and had completed 16 years of service. In seniority list, she was at serial No.5 while petitioner Smt. Duleshwari Devie was junior to her in seniority. The respondent No.4 declined to accept handing over charge of the office since she was suffering from Arthritis and as such expressed her inability. The refusal was not for all times to come and cannot amount to forgo lien for the higher post. The petitioner was given only charge to look after day to day function and it does not amount to promotion. There is no refusal on the part of respondent No.4 to decline ad hoc or officiating promotion on the post of Principal but she only declined to take over charge of the office of the Principal. The Character Roll of the petitioner is not good. Her increment was stopped. Besides, three matters are pending in the office of Additional Director of Education and one case is pending in the office of Joint Director of Education. A refusal at a particular time for a particular reason would not be treated to be a refusal for all times to come and therefore respondent No.4 can subsequently claim her entitlement to function as Principal being senior to the petitioner. The refusal was earlier on account of a temporary disability which having been removed, respondent No.4 is entitled to claim charge of Principal. The judgments cited by petitioner refers to refusal to accept officiating promotion as Principal and the same does not apply in the case in hand. District Magistrate did not pass any order but only directed DIOS to look into the matter and thereafter DIOS has passed the order which warrants no interference.
10. In the rejoinder affidavit, petitioner has reiterated what it has said in the writ petition while denying the claim of respondent No.4 made in the counter affidavit.
11. The facts, as are admitted in the case in hand, that a substantive vacancy occurred in the office of Principal on 1.7.2005 due to retirement of the predecessor in office on 30.6.2005. The then Principal tried to hand over charge to the senior most teacher but first five teachers admittedly declined to accept charge from the outgoing Principal. It is in these circumstances outgoing Principal wrote a letter to DIOS seeking his guidance, who directed that it may be given to the senior most person available. Km. Archana Chaterjee, Lecurer clearly said that she is suffering from Thyroid and is not supposed to work involving onerous duties and tension and charge be handed over to some one else. Sri Ramesh Pandey, Lecturer straight way declined to take over charge and said that it may be handed over to someone else to which he has no objection. Smt. Afroz Bano, Lecturer declined to accept the charge for personal reasons and said that it may be handed over to someone else for which she has no objection. Smt. Rajeshwari Nigam, Lecturer declined to receive charge for undisclosed reasons. Respondent no.4 also stated in her no objection letter/certificate that for personal undisclosed reasons she is unable to take over charge as Principal and it may be handed over to someone else.
12. The aforesaid letters nowhere discloses that any of the aforesaid teachers, who were senior and entitled to take over charge, declined to do so temporarily or for the time being but the reasons stated by them are for indefinite period. It is in these circumstances the petitioner, next in seniority, was handed over charge, who was at serial no.6 i.e. just below respondent No.4. She commenced to perform duties of Principal since then i.e. 1st July, 2005. After almost six years on 5th August, 2011 respondent No.4 claimed to have submitted a letter to the District Magistrate, Ballia stating that she earlier declined to accept charge of the office of Principal due to her bad health and now she is fit and willing to take over charge of the Principal therefore, it should be required to hand over to her since the petitioner functioning as Principal is junior. It is this letter of respondent No.4 which has caused DIOS to pass the impugned order. Learned counsel for respondent No.4 could not explain as to how and in what circumstances respondent No.4 approached the District Magistrate. He could not show that District Magistrate enjoins any authority in service matter of teachers in an educational institution. It is not the case where respondent No.4 initially approached the educational authorities and finding them oblivious or of no action, made any complaint to the District Magistrate but in a strange manner straight way approached the District Magistrate who admittedly had no authority in these matters. The manner and the way in which the respondent No.4 has approached the District magistrate raises grave suspicion about the bona fide of entire transaction. However, I do not propose to decide this matter on this aspect alone since the question has to be considered in the light of the legal right of respondent no.4, in the facts and circumstances of this case, to claim afresh the charge of the office of Principal on officiating basis though there is no new substantive vacancy. The issue relating to approach to District Magistrate shall be dealt with a bit later in appropriate perspective.
13. Here also not a case where respondent No.4 has been given any officiating, adhoc or otherwise promotion but it is only handing over charge of the office of Principal. In my view, respondent No.4 could not have been allowed to take over charge of the office of Principal once she has declined the same for reasons not limited to a certain period in any manner. Mere change of thought will not entitle a person to disturb a system which is already functioning, once an incumbent had already been given opportunity but voluntarily declined to accept the same. The substantive vacancy on the post of Principal occurred on 1st July, 2005 wherefore all the first five senior most teachers, one after the other, having been given opportunity, declined to accept the charge of the office of Principal for the reasons not limited for a period. The petitioner's letter also worded in the same language i.e. personal unavoidable reasons. It does not mention that for the time being, on account of her ill health, she is unable to take over charge but may or would accept the responsibilities after gaining health.
14. The judgment relied on by respondent No.4 i.e. Dhaneh Kumar Sharma (supra) does not apply to the facts of this case. There, senior incumbent declined to take over charge on the ground that he was not keeping good health and this Court construed the same as a conditional letter limited to the situation where the incumbent was not keeping good health and then it is observed that after the disability disappear, request to officiate as Principal can be made by such senior most teacher which can be considered.
15. In any case, the aforesaid judgment looses its binding force in view of the Division Bench judgment in Sundarshan Kumar (supra) wherein Division Bench has said that once the senior most teacher has declined to take over charge as officiating Principal after occurrence of a substantive vacancy, such senior most teacher cannot retract subsequently to claim charge of the office of the Principal after the same having been delivered to the next senior, who is performing the duties thereafter satisfactorily so long as the same substantive vacancy continue. Senior most teacher, who has already declined, cannot claim charge on mere change of opinion and such situation would arise only when a fresh substantive vacancy occurred and not earlier thereto.
16. The decision in Dhanesh Kumar Sharma (supra) has been referred to in a subsequent Single Jude's judgment in Ashok Kumar Jain (supra) and relying on Division bench judgment in Sundershan Kumar (supra), the Hon'ble Single Judge in Ashok Kumar Jain (supra) has clearly observed that judgment in Dhanesh Kumar Sharma (supra) stands impliedly overruled by Division Bench decision.
17. This is what has been held by another Single Judge in Archana Singh (Smt.) (supra) while relying on Division Bench judgment in Sundarshan Kumar (supra) and it says :
"if a teacher refuses to officiate as the Principal of the College then, if the same substantive vacancy continues, he cannot subsequently turn around and claim appointment as Officiating Principal."
18. Learned counsel for the respondents, however, tried to submit that aforesaid decision would have no application since it is not a case of officiating promotion but here the question is only that of handing over of charge which does not amount to promotion. Placing reliance on a Division Bench judgment in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools & Ors. 2007 (2) ALJ 694 wherein the distinction was drawn in officiating promotion and handing over charge of the office of Principal. I do not find any relevance thereof in the present case whether it is a case of officiating promotion or of handing and taking over charge of higher office like Principal. Once the senior most person himself/herself has declined to function by taking over charge of the higher office, subsequently so long as the same substantive vacancy continues, he/she cannot retract to claim the charge of higher office after the same has already been handed over to next junior person and that too when such junior person is discharging his/her duties satisfactorily and without any complaint. The DIOS has miserably failed to understand and has illegally ignored the long chain of decisions of this Court on this aspect and has passed the impugned order.
19. Now I come to last straw deriving from the approach of respondent No.4 to District Magistrate. The conduct of respondent No.4 in first sending letter to District Magistrate and thereafter DIOS proceeding to consider the matter on the letter of District Magistrate shows that DIOS has not acted in this matter objectively, independently and impartially. It is a case of exercise of power on his part for collateral purposes which amounts to "malice in law".
20. The Apex Court has summarised "malice in law " in (Smt.) S.R.Venkatraman Vs. Union of India and another, AIR 1979, SC 49 as under :
"It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing fact or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another." (Para 8)
21. The Apex Court further in para 9 of the judgment in S.R.Venkatraman (supra) observed:
"9. The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence. It will therefore be a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of Government servants only in the ''public interest', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result. An administrative order which is based on reasons of fact which do not exist must, therefore, be held to be infected with an abuse of power."
22. In Mukesh Kumar Agrawal Vs. State of U.P. and others JT 2009 (13) SC 643 the Apex Court said :
"We also intend to emphasize that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved."
23. In Somesh Tiwari Vs. Union of India and others 2009 (2) SCC 592 dealing with the question of validity of an order of transfer on the ground of malice in law, the Apex Court in para 16 of the judgment observed as under:
"16. .... Mala fide is of two kinds--one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
24. In HMT Ltd. and another Vs. Mudappa and others JT 2007(3) SC 112 the Apex Court in paras 18 and 19 defined malice in law by referring to "Words and Phrases Legally Defined, 3rd Edn., London Butterworths, 1989" as under:
"The legal meaning of malice is "ill-will or spite towards a party and any indirect or improper motive in taking an action". This is sometimes described as "malice in fact". "Legal malice" or "malice in law" means ''something done without lawful excuse'. In other words, ''it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite'. It is a deliberate act in disregard of the rights of others."
"19. It was observed that where malice was attributed to the State, it could not be a case of malice in fact, or personal ill-will or spite on the part of the State. It could only be malice in law, i.e legal mala fide. The State, if it wishes to acquire land, could exercise its power bona fide for statutory purpose and for none other. It was observed that it was only because of the decree passed in favour of the owner that the proceedings for acquisition were necessary and hence, notification was issued. Such an action could not be held mala fide."
25. In brief, malice in law is when a power is exercised for an unauthorized purpose or on a fact which is claimed to exist but in fact, is non-est or for the purpose for which it is not meant though apparently it is shown that the same is being exercised for the purpose the power is supposed to be exercised. (See Manager Govt. Branch Press and another Vs. D.B.Belliappa AIR 1979 SC 429; Punjab Electricity Board Vs. Zora Singh and others AIR 2006 SC 182; K.K.Bhalla Vs. State of U.P. and others AIR 2006 SC 898; P. Mohanan Pillai Vs. State of Kerala and others (2007) 9 SCC 497; M.P.State Corporation Diary Federation Ltd. and another Vs. Rajneesh Kumar Zamindar and others (2009) 6 SCALE 17; Swarn Singh Chand Vs. Punjab State Electricity Board and others (2009) 7 SCALE 622 and Sri Yemeni Raja Ram Chandar Vs. State of Andhra Pradesh and others JT (2009) 12 SC 198).
26. Since the DIOS has failed to discharge his duties objectively, independently and impartially and has unfortunately caused this litigation by passing order which is clearly in the teeth of several decisions of this Court, in my view, not only the impugned order deserve to be quashed but writ petition deserve to be allowed with cost.
27. In view of the above, the writ petition is allowed. The impugned order dated 31.10.2011 (Annexure 5 to the writ petition) is hereby quashed. The petitioner shall also be entitled to cost which I quantify to Rs.10,000/-.
Order Date :- 12.12.2011 KA