HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 34 Civil Misc. Writ Petition No. 15252 of 2011 Rajpal Singh ....Petitioner v. State of U.P. and others ..... Respondents With Civil Misc. Writ Petition No. 15285 of 2011 Rajpal Singh ....Petitioner v. State of U.P. and others ..... Respondents With Civil Misc. Writ Petition No. 47044 of 2009 Rajpal Singh ....Petitioner v. State of U.P. and others ..... Respondents With Civil Misc. Writ Petition No. 74385 of 2005 Nawab Hasan ....Petitioner v. State of U.P. and others ..... Respondents With Civil Misc. Writ Petition No. 16765 of 2003 Nawab Hasan ....Petitioner v. The Joint Director of Education, Moradabad and others ..... Respondents Hon. Arun Tandon, J.
These five writ petitions pertain to the same post of Principal of a recognized Intermediate College and therefore have been clubbed together and are being decided by means of this common judgment.
Lakhauri Inter College, Lakhauri, Moradabad is an added and recognized Intermediate College. The provisions of the Intermediate Education Act, 1921 (hereinafter referred to as 'Act, 1921') and those of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'Act, 1982') are fully applicable to the teachers of the said institution. The institution was granted recognition for Intermediate classes in 8 subjects. However, four post of Lecturers were only created in the year 1985 without specifying the subjects. In accordance with Regulation-3 of Chapter-II of the Regulation framed under the Intermediate Education Act, two posts were required to be filled by way of promotion and other two by way of direct recruitment.
Mahabir Singh and Dal Chandra Singh were granted promotion on substantive basis against the two newly created post. Mahabir Singh imparted education in the subject of Hindi and Sri Dal Chandra Singh imparted education in Sanskrit. Against the vacancies, which were to be filled by way of direct recruitment, one Sri Nawab Hasan and one Sri Abdul Nafis were granted ad hoc promotion. Nawab Hasan taught the subject of English, while Abdul Nafis taught the subject of Sociology. Up to that stage there is no dispute.
Dal Chandra Singh expired in the year 1988-89, while Abdul Nafis left the institution. Thus, two vacancies in Lecturers grade became available. Against the post of Abdul Nafis, one Ved Prakash was appointed as Lecturer in the year 1989, while Rajpal Singh, who was initially appointed as Assistant Teacher, was promoted on 18.03.1991 against the vacancy caused due to death of Dal Chandra Singh. Lastly one Dharambir Singh was appointed as Lecturer Sanskrit in the year 1994.
Nawab Hasan, the contesting party, who was appointed as ad hoc basis, claims to have been regularized as Lecturer w.e.f. 06th April 1991 in view of Section 33-B of the U.P. Act No. 3 of 1994.
From the aforesaid it is apparent that while Rajpal Singh was promoted as permanent Lecturer on 18th March, 1991, while Nawab Hasan was regularized on the post of Lecturer under Section 33-B only w. e. f. 06th April, 1991.
In order to keep the record straight it may be recorded that Mahabir Singh, Lecturer Hindi was promoted as officiating Principal of the institution in the year 1991 and thereafter he became ad hoc Principal of the institution in the year 1994. Sri Mahabir Singh is stated to have retired on 30th June, 2001. At this stage Rajpal Singh was offered appointment as officiating Principal in the background that he was the senior most Lecturer of the institution.
Nawab Singh, not being satisfied with the said appointment of Rajpal Singh as officiating Principal, filed Writ Petition No. 16765 of 2003 challenging the order of the Joint Director of Education dated 28.11.2002 wherein he had declared Rajpal Singh to be senior to Nawab Hasan. While the writ petition was still pending, the Joint Director of Education passed an other order dated 01.02.2005 rejecting the representation of Sri Nawab Hasan claiming seniority over Rajpal Singh. This order was challenged by means of Writ Petition No. 74385 of 2005 by Nawab Hasan. In the said petition also no interim order was granted.
The Joint Director on 13th August, 2007 rejected the representation made by Nawab Hasan in respect of his claim for appointment as ad hoc Principal.
However on 24th August,2009 the Joint Director of Education passed an order to the effect that the promotion granted to Rajpal Singh was irregular and, therefore, directed that he shall be paid salary in L.T.Grade only. Not being satisfied with this order Rajpal Singh filed Writ Petition No.47044 of 2009 before this Court wherein interim order was granted vide order dated 7.7.2009 staying the operation of the order of the Joint Director of Education dated 24.08.2009.
The committee of management however, passed a resolution dated 15.4.2010 suspending Rajpal Singh and the District Inspector of Schools vide order dated 20.5.2010 attested the signature of Nawab Hasan as officiating Principal of the institution. This order was challenged by Rajpal Singh by means of writ petition no. 31377 of 2010 the writ petition was disposed of vide order dated 26.5.2010 permitting the petitioner to represent his grievance before the Joint Director of Education who was required to take decision in accordance with law.
In the meantime, the committee of management passed a fresh resolution dated 12.6.2010 holding therein that Rajpal Singh is unfit to be officiating Principal and directed Nawab Hasan to be the officiating Principal of the institution. The Manager of the institution issued a letter dated 14.6.2010 in compliance to the said resolution of the committee of management. Against the aforesaid orders Rajpal Singh filed writ petition no. 42011 of 2010. This writ petition was disposed of by the writ Court vide order dated 21.7.2010 asking the District Inspector of Schools to examine the matter pertaining to the suspension of Rajpal Singh as the Principal of the institution and to further examine as to whether in the fact of the case he can be denied the right to continue as officiating Principal.
On 17.1.2011 the Joint Director of Education passed the order recording therein that Rajpal Singh shall function as Lecturer only. However, his suspension was revoked under order dated 24.2.2011 passed by the District Inspector of Schools. This order has been challenged by Rajpal Singh by means of writ petition no. 15285 of 2011.
The post of Principal of the institution was advertised by the Selection Board vide Advertisement No. 2 of 2008. The petitioner Rajpal Singh made a representation on 17.1.2011 for his claim being considered on the ground that he was amongst the first two senior most teacher of the institution.
The Manager of the institution on 21.1.2011 forwarded a letter to the Board stating therein that two senior most teacher entitled to be considered in the matter of appointment on the post of Principal were Nawab Hasan and Ved Prakash. Against the said letter the petitioner made a representation dated 21.1.2011 but to of no avail. Interview did take place on 24.1.2011 Rajpal was not permitted to participate in the process of selection. He therefore filed writ petition no. 15251 of 2011. During the pendency of the writ petition the Select Panel has been notified for the post of Principal of the institution wherein Nawab Hasan has been placed at serial no.1. The Select Panel has been challenged by means of Amendment Application in writ petition no. 15252 of 2011 which has been allowed by the Court today.
Counsel for the parties have agreed before this Court that since affidavits have been exchanged in the connected matters. All these writ petitions may be decided without calling for any further affidavits.
Accordingly, all the writ petitions have been heard together. Sri Ashok Khare Senior Advocate assisted by Sri Adarsh, Advocate has been heard on behalf of Rajpal Singh in all these matters. Sri R.K.Ojha learned counsel have been heard on behalf of Nawab Hasan, Jai Singh Yadav learned counsel on behalf of Ved Prakash, standing counsel has been heard on behalf of education authorities, Sri V.S. Vohra, Advocate has been heard on behalf of the committee of management and Sri S.C.Dwivedi learned counsel has been heard on behalf of the Selection Board.
All these writ petitions basically revolve around one issue i. e. as to whether grant of promotion to Rajpal Singh as Lecturer (Economics) on 18.3.1991 was valid or not. If the answer to the question is affirmative nothing much can be said by the parties which could dislodge the claim of Rajpal Singh qua his being the Senior most teacher of the institution on the date the vacancy was advertised/interview was held for the post of Principal.
As already noticed above as against the eight subjects in which recognition was granted to the institution for imparting education in Intermediate classes only four post of Lecturer were created under order dated 8.9.1983 . This letter did not mention of any subject for which the four post were so created. At the relevant point of time two senior most teachers were appointed by way of regular promotion namely Mahabir Singh and Dalchandra Singh while two other teachers namely Nawab Hasan and Abdul Nafees were granted ad hoc promotion. It is, further not in dispute that in the year 1991 Mahabir Singh was promoted as officiating Principal of the institution and this caused a vacancy on the post of lecturer in the institution. Similarly Abdul Nafees left the institution in the year 1984 while Dalchandra Singh expired in the year 1988-89. It is, therefore, clear that three vacancies were available in the Lecturer grade two of which were to be filled on ad hoc basis, being under direct recruitment quota/short term vacancy, while one caused due to expiry of Dalchandra Singh was a substantive vacancy. It is, further not in dispute that Ved Prakash was appointed against the vacancy caused after Abdul Nafees left the institution. Rajpal Singh was appointed as lecturer on regular basis apparently against the vacancy which was caused due to death of Dalchandra Singh.
There are two objections in respect of such grant of promotion to Rajpal Singh as per the order of the Joint Director of Education dated 17.1.2011 as well as on behalf of Nawab Hasan, who is represented by Sri R.K. Ojha, namely (a) on the date Rajpal Singh was promoted in the institution i.e. dated 18.3.1991 there became five lecturers in the institution when there were only four sanctioned post (b) Dalchandra Singh was a lecturer in the subject of Sanskrit and therefore the vacancy so caused because of his death could not be filled by promotion of Rajpal as lecturer Economics.
Both the contentions raise do not appeal to the Court.
So far as, the first contention raised on behalf of Nawab Hasan is concerned the same is based on complete non-consideration of relevant factor namely that Mahabir Singh had already been promoted as principal as early as on 1.7.1991 and the appointment of Dharmvir Singh Sharma as lecturer in the institution was made in the year 1994 which was the 5th appointment as lecturer. It is, therefore clear that at the relevant point of time there were only four lecturer and one Principal in the institution and not five lecturer in the institution as has been contended. In any view of the matter the promotion of Rajpal Singh was prior in point of time and therefore cannot be said to be the fifth appointment against four posts.
So far as, the promotion of Rajpal Singh against the vacancy caused due to death of Dalchandra Singh is concerned this Court may record that under the letter creating the post of lecturers there was no allocation of the same subject-wise. The committee resolved to promote Rajpal Singh as Lecturer in Economics, which was also one of the recognised subject for Intermediate classes. There is hardly any justification to question such a promotion after 21 years on the ground that Dalchandra Singh used to teach the subject of Sanskrit.
This issue for questioning the promotion granted to Rajpal Singh which had been duly approved by the Education authorities in the year 1991 cannot be permitted to be so agitated at such a belated stage specifically when the creation of the posts of Lecturer was not subject wise. This Court has already recorded above that at no point of time five lecturer were working in the institution. As a matter of fact only four lecturer and one Principal had been working in the institution.
In the totality of the circumstances of the case, this Court hold that promotion of Rajpal Singh on 18.3.91 cannot be said to be illegal in any manner.
The order of the Joint Director of Education dated 24.8.09 holding the promotion of Rajpal Singh to be illegal and directing him to function as L.T. Grade cannot be legally sustained and is hereby set aside. The order passed by the Joint Director of Education dated 7.1.2011 holding therein that Rajpal Singh would function as Lecturer only also cannot be sustained and is hereby set aside. The order of the District Inspector of Schools dated 24.2.2011 shall also fall automatically.
Counsel for Rajpal Singh appears to be justified in contending that the committee of management while passing the resolution dated 12.6.2010 was under misconception of fact and law namely that it was proposing to make fresh appointment on the post of ad hoc Principal in terms of Section 18 of the U.P. Secondary Education Act when as a matter of fact Rajpal Singh had been appointed ad hoc Principal as early as in the year 2001 and he had been placed under suspension vide resolution of the committee of management dated 13.4.2010. Once his suspension has been revoked, it is but logical that the incumbent will be restored as officiating Principal of the institution. The resolution of the committee of management dated 12.6.2010 and consequential letter of the District Inspector of Schools dated 14.6.2010 are also held to be illegal and in operative in the eye of law.
This takes the Court to the issue as to what further directions are to be issued in view of the selection of Nawab Hasan as regular Principal of the institution in terms of the Advertisement No. 2 of 2008.
It is not disputed by any of the parties that Rajpal Singh was not permitted to participate in the process of selection.
Sri Vohra, counsel for the committee of management, referred to a letter dated 15.4.2010 sent by the committee of management, in the matter of consideration of the senior most teachers for the post of Principal of the institution, to the District Inspector of Schools along with service record of three teachers namely Nawab Hasan, Ved Prakash and Rajpal Singh.
Such letter of the management is of no consequence inasmuch as under the relevant statutory provisions only name of two senior most teachers can be forwarded to the Selection Board for consideration for the post of Principal of the institution. Even otherwise this letter dated 15.4.2010 of the Management stood superseded by the letter of the Manager dated 21.1.2011 whereby names of only two teachers namely Nawab Hasan and Ved Prakash were forwarded to the Selection Board.
The Court has been informed that Ved Prakash has filed an affidavit stating therein that he did not participate in the selection process and that he is not interested in the post of Principal.
It is not the case of any of the parties that Rajpal Singh was not within the first two senior most teachers of the institution entitled to be considered for selection for the post of Principal of the institution in view of Rule 11 read with Rule 12 of the U.P. Secondary Services Selection Board, 1998.
Normally, this Court would have set aside the entire selection for the post of Principal and would have directed holding of fresh interview of all the candidates but such a course is not being adopted in the peculiar facts of this case in as much as Nawab Hasan has been found superior to the open market candidate for the post of Principal. Therefore, in between Rajpal Singh and Nawab Hasan a fresh interview may be held so that their respective merits may be evaluated. Rights of candidate at serial no. 2 and 3 of select panel would not be jeopardized in as much as their chance would only arise if Nawab Hasan refuses to accept the post. Nawab Hasan is ready and willing to accept the appointment as Principal of the institution. Both Rajpal Singh and Nawab Hasan can be considered for the post of Principal of the institution only as they are not open market candidates because of being senior most teachers of the institution.
Accordingly, it is directed that a fresh Interview Board shall be constituted, which shall interview Rajpal Singh and Nawab Hasan and, thereafter their performance along with other marks to be awarded, in terms of the U.P. Secondary Education Services Selection Board Act and Rules framed thereunder, would be calculated. The total thereof would be worked out. Out of the aforesaid two persons who ever is found to be more meritorious shall be offered the post of Principal of the institution. The aforesaid exercise may be completed within four weeks from the date a certified copy of this order is filed before the Chairman of the U.P. Secondary Education Selection Board. The result of the selection must be declared by 3rd July,2011 so that selected candidate may take charge of the post of Principal immediately after the college opens after summer vacations. The select panel dated 29.04.2011 shall remain in abeyance till 03.07.2011 and shall thereafter abide by the result of the fresh selection, as aforesaid.
In the meantime no person shall be entitled to function as Principal of the institution in question. However, the person who forwarded the examination form of the Board may issue High School and Intermediate Mark sheet and Certificate to the students till 3rd July, 2011 only.
All the writ petitions are disposed of subject to the observations made.
25.05.2011 Pkb/15252-11