Gautam Singh & Others vs State Of U.P. And Others
2011 Latest Caselaw 6231 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- WRIT - A No. - 20704 of 2011
 
Petitioner :- Gautam Singh & Others
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- R.C.Dwivedi
 
Respondent Counsel :- C.S.C,A.K.Malviya
 

 
Hon. Arun Tandon, J.

Heard Sri R.C. Dwivedi, Advocate on behalf of the petitioners, Sri P.N. Saxena, Senior Advocate, assisted by Sri A.K. Malviya, Advocate, on behalf of respondent nos. 6 and 7, Sri U.N. Sharma, Senior Advocate assisted by Sri A.K. Malviya, Advocate for respondent nos. 8 to 12 and Standing Counsel for respondent nos. 1 to 5.

Nehru Vidyapeeth Inter College, Revatipur District-Ghazipur (hereinafter referred to as 'institution') is an institution added and recognized under the provisions of the Intermediate Education Act. Three Class-III posts were advertised by the regular Principal of the institution for direct recruitment in the year 2006, namely Maya Shankar Pandey with the prior permission of the District Inspector of Schools. Petitioners before this Court were one of the applicants in response to the said advertisement. They were selected and are also stated to have been appointed. Papers pertaining to the appointment were transmitted to the District Inspector of Schools for his approval as required under Regulation 101 of Chapter-III of the Regulations framed under the Intermediate Education Act. The District Inspector of Schools by means of the order dated 04.08.2008 refused to accord financial approval to the appointment so made. This resulted in Writ Petition No. 49966 of 2008 being filed before this Court.

It may be recorded that the writ petition has been finally dismissed on 11.11.2009, as a result whereof the legality of the selections of the year 2006 does not survive any further for consideration before this Court and the chapter in that regard stands closed.

Sri Maya Shankar Pandey, the Principal of the institution was placed under suspension under an order dated 06th November, 2008 and one G.K. Rai was appointed as officiating Principal, to be precise on 22.12.2008. The suspension of Maya Shankar Pandey was not approved by the District Inspector of Schools within 60 days of its communication and therefore in view of Section 16-G(7) of the Intermediate Education Act, the suspension of Maya Shankar Pandey became inoperative in the eyes of law. In view of the Full Bench judgment of this Court in the case of Chandra Bhushan Misra vs. District Inspector of Schools, Deoria and others; 1995 (26) ACJ page 224, Maya Shankar Pandey stood restored as Principal of the institution by operation of law and the suspension was rendered inoperative automatically.

What follows is that after expiry of 60 days from 06.11.2008 there ceased to be any vacancy on the post of Principal of the institution. Consequently, the appointment of Sri G.K. Rai as officiating Principal also became inoperative in the eyes of law.

However, Sri G.K. Rai on 15.01.2009 approached the District Inspector of Schools for prior permission being granted to advertise the vacancies afresh. Smt. Malti Rai, the then District Inspector of Schools vide order dated 15.01.2009 granted such permission. On 27.01.2009 the vacancies were advertised by Sri G.K. Rai. Out of 5 vacancies advertised, 2 were shown to be reserved for Scheduled Caste, 1 for Other Backward Classes and 2 were shown to be within the open category.

Respondent nos. 8 to 12 are stated to have been selected and appointed in response to the advertisement. The papers in respect of the selections were transmitted to the District Inspector of Schools, who in turn forwarded the same to the Regional Level Committee. The Regional Level Committee on 19th May, 2009 is stated to have approved the selections, as a result whereof financial approval was granted by the District Inspector of Schools to the appointment of respondent nos. 8 to 12 on 20.05.2009.

In order to keep the record straight it may be noticed that Sri Maya Shankar Pandey filed Writ Petition No. 21677 of 2009 challenging the order dated 19.05.2009 whereby the signatures of Sri G.K. Rai were attested as officiating Principal. In the writ petition an interim order was granted by this Court on 22.04.2009 whereby the order attesting the signatures of Sri G.K. Rai was stayed. The writ petition was finally disposed of vide order dated 12.11.2009 keeping the suspension of Sri Maya Shankar Pandey in abeyance till fresh orders are passed by the District Inspector of Schools. On 14th November, 2009 the District Inspector of Schools approved the suspension of Maya Shankar Pandey.

The petitioners, however, filed an independent writ petition, being Writ Petition No. 31984 of 2009 challenging the appointment of respondent nos. 8 to 12. In the said writ petition an interim order was granted. A similar writ petition was filed by the petitioner no. 2, being Writ Petition No. 54889 of 2009. Both the writ petitions were clubbed together and decided vide order dated 13.01.2010. The writ petitions were allowed and the matter was remanded to the Regional Level Committee to examine the legality of the appointments afresh.

Against the said judgment an special appeal was filed by the respondent nos. 8 to 12, which was got dismissed as withdrawn.

In pursuance to the order of the High Court dated 13.01.2010, referred to above, the Regional Level Committee reconsidered the matter and by means of order dated 07.05.2010 again approved the selections of respondent nos. 8 to 12. Another writ petition was filed by the present petitioners, being Writ Petition No. 30008 of 2010, which was allowed by the High Court vide judgment dated 24.05.2010 and the matter was remanded to the Regional Level Committee to decide the dispute afresh in light of the observations made. For the second time the Regional Joint Director of Education has again approved the selections by means of the order dated 30.11.2010 and it is against this order that the present writ petition has been filed.

On behalf of the petitioners it is contended that on the date the vacancy was advertised by Sri G.K. Rai, the selections were held, in which he participated as the Principal of the institution and the date on which the letter of appointment issued by G.K. Rai in favour of respondent nos. 8 to 12 in his capacity as officiating Principal, he had ceased to be officiating Principal of the institution by operation of law as 60 days had expired from the date of suspension of Sri Maya Shankar Pandey order was issued by the Committee of Management. The order of suspension could not remain in operation after 60 days, unless an order of approval was made by the District Inspector of Schools in writing with reference to Section 16-G(7) of the Intermediate Education Act.

The legal position in that regard has been examined by the Full Bench in the case of Chandra Bhushan Misra (supra) and it has been held that the order of suspension becomes inoperative after expiry of sixty days from the date of the suspension, if not approved by the District Inspector of Schools in writing. After 60 days the Principal of the institution, who has been suspended, is restored back as Principal subject however to the condition that if the suspension is approved at any later point of time, then the suspension would revive from the date it is so approved.

It is then contended that the petitioners have specifically pointed out to the Regional Level Committee that the respondent nos. 11 and 12 are private drivers of the District Inspector of Schools and the Accounts Officer in his office, respondent no. 10 is the son of the Head Clerk of the institution. Respondent nos. 8 and 9 were close relative of the employees in the office of the District Inspector of Schools.

According to the petitioners the High Court in its earlier order dated 24.05.2010 had specifically observed that not only the competence of the Principal to hold selections was to be examined, the procedure followed in the matter of appointment had also to be taken note of. It is then contended that the Hon'ble Single Judge had specifically observed in his order that the procedure as prescribed under the U.P. Group 'D' Employees Rules, 1985 would be applicable in view of the judgment in the case of Principal, Adarsh Inter College, Umari vs. State of U.P. & Others) reported in 2010(1) ADJ, 403, which had since been affirmed by the Division Bench of this Court in Special Appeal No. 1851 of 2009.

According to the petitioners under the order impugned itself, except for recording that Sri G.K. Rai was Principal of the institution, the legal objection raised qua his competence to function as such, after 60 days of suspension of Maya Shankar Padney has completely been ignored.

A passing observation has been made in the impugned order that the order passed in Special Appeal No. 1851 of 2009 has been delivered on 03.12.2009, which is subsequent to the selections held and therefore would not apply. Lastly it has been held that no material evidence has been produced for establishing that Musafir Ram and Vinod Kumar Ram (respondent no. 11 and 12) were private drivers of District Inspector of Schools and the Accounts Officer in the office of the District Inspector of Schools, which finding according to the petitioners is perverse, inasmuch as material evidence was brought on record to establish that the District Inspector of Schools and the Accounts Officer in their own handwriting had submitted before the Election Commission that the aforesaid two persons were their driver (Reference- as per the representation made by the petitioner dated 11.10.2010), which has been completely ignored.

Lastly it is pointed out that the appointment has been offered to the selected candidates even without obtaining prior approval of the District Inspector of Schools as required under Regulation 101 of Chapter-III of the Regulations framed under the Intermediate Education Act and therefore a nullity in view of the Division Bench judgment of this Court in the case of Jagdish Singh etc. vs. State of U.P. and others etc., reported in (2006) 3 UPLBEC 2765. Counsel for the petitioners has also referred the judgment in the case of Smt. Vijay Rani vs. Regional Inspectress of Girls Schools, Region I, Meerut Division, Meerut and others; 2007(2) ESC 987 (All)(DB), which has since been followed in the case of Yogendra Kumar Gond and others vs. State of U.P. and others; (2011) 2 UPLBEC 938, wherein it has been held that the officiating Principal, who was appointed during suspension of the regular Principal which order has been stayed by the Vice Chancellor, has no authority to make any appointment.

It is repealed that Sri G.K. Rai was incompetent to act as a Principal and consequently to make any appointment on Class-IV post after expiry of sixty days of suspension of Maya Shankar Pandey, therefore, the appointment made by him is nullity. Reliance has been placed upon the judgment in the case of Raghavendra Rao and others vs. State of Karnataka and others; (2009) 4 SCC 635.

On behalf of the respondent a preliminary objection has been raised that the present writ petition is in the nature of public interest litigation, inasmuch as the petitioners had not applied in response to the advertisement which was published by Sri G.K. Rai in the year 2009. It is then contended that Sri G.K. Rai was de facto Principal of the institution on the date the advertisement was made, the date on which selections were made as also on the date appointments were made by him. Reliance has been placed upon the judgment of the Division Bench of this Court in the case of Dr. U.S. Sinha vs. State of U.P. and others; 2008(2) ADJ 205.

Lastly it is contended that the order of the Regional Level Committee impugned in the writ petition is legally justified on facts. The judgment in the case of Principal, Adarsh Inter College (supra) has been held to be no more good law by the Division Bench of this Court in the case of Rajiv Kumar and others Vs. State of U.P. and others reported in 2011 (1) A.D.J. 615 (DB), which aspect of the matter has been referred to a larger bench under an order passed by this Court on 11.02.2011 in Writ Petition No. 55874 of 2009 (Harpal Singh vs. State of U.P. and others).

In rejoinder counsel for the petitioners submits that the issue with regard to the de facto principle being applied in a matter where there is direct challenge to the competence of the particular person to function as Principal has been repelled under the Division Bench judgment of this Court in the case of Committee of Management, Gangadin Ram Kumar Inter College, Jaunpur vs. Deputy Director of Education, Vth Region, Varanasi and others; (2006) 3 UPLBEC 2862.

So far as the issue with regard to the locus of the petitioners to challenge the order impugned is concerned, it is pointed out that on a earlier occasion between the same parties in Writ Petition No. 31984 of 2009 an identical contention raised was rejected, copy of the judgment has been brought on record as Annexure-13 to the present writ petition (Reference page 84 of the writ petition). It is submitted that the same issue cannot be permitted to be re-agitated, inasmuch as said order has become final between the parties.

It is further submitted that there are admittedly 13 sanctioned Class-IV post in the institution. Reservation of 21% has been provided for in favour of the Scheduled Caste and therefore at the maximum two posts can be filled by providing reservation in favour of the Scheduled Caste. In the facts of the case there were already two Scheduled Caste Class-IV employees working including the Sweeper and therefore the appointment of two persons by applying reservation to the Scheduled Caste under the impugned selection is bad.

I have heard learned counsel for the parties and have gone through the records of the writ petition.

This Court may first deal with the issue with regard to the present writ petition being in the nature of public interest litigation, therefore not cognizable by this Bench. Suffice is to refer to the identical objection which was taken on behalf of the respondents before the Single Judge in the earlier Writ Petition No. 31984 of 2009. The Hon'ble Single Judge after considering the aforesaid objection held as follows:

"Having heard learned counsel for the parties and keeping in view the facts that have been brought on record, it is evident that the petitioners have lost the battle and their writ petition has already been dismissed on 11.11.2009. It is, however, to be noted that in the event the selections of respondent Nos. 10 to 14 are not found to be in order then the petitioners may again have a right to apply for the posts in question. In this view of the matter, the writ petition of the petitioners cannot be thrown out merely on account of the fact that their writ petition, challenging their disapproval, has been dismissed."

Against this order special appeal was filed by respondent nos. 8 to 10 and it was got dismissed as withdrawn. Consequently, the order has been permitted to become final between the parties. It is under this order that the matter was remanded to the Regional Level Committee. The subsequent order passed by the Regional Level Committee was again set aside by the High Court and the matter was again remanded to the same Regional Level Committee to decide afresh. The order which has now been passed by the Regional Level Committee is under challenge in the present writ petition. The issue of locus of petitioners to challenge the order cannot be permitted to be re-agitated on the same allegation.

Even otherwise this Court may record that the petitioners had admittedly been selected for the same post in response to the advertisement published earlier and they had contested the matter up to this Court, although they lost. Therefore, it cannot be said that the petitioners have no personal interest in appointment on the post in question. If the contention of the petitioners to the effect that Sri G.K. Rai had no competence to make any advertisement/appointment on the post, as officiating appointment is upheld, it will mean that the selection would fall to ground and then fresh advertisement has to be made. The petitioners shall be free to apply in response thereto.

This Court may further record that if an advertisement is made by an incompetent person, then non-filing of the application in response there to by a prospective candidate cannot defeat his right to challenge the selections held, inasmuch as selection by an incompetent person is a nullity in the eyes of law. Therefore, none of the right of the petitioners can be said to be defeated merely because they have not applied in response to the advertisement, which according to the petitioners is without authority, as G.K. Rai ceased to be officiating Principal at the relevant time. Consequently, the first objection raised on behalf of the respondent with regard to the locus and maintainability of the writ petition before this Court is rejected.

So far as the issue of competence of Sri G.K. Rai to act as officiating Principal after expiry of 60 days of the suspension of the regular Principal of the institution, namely Maya Shankar Pandey is concerned, this Court may refer to the Full Bench judgment of this Court in the case of Chandra Bhushan Misra (supra) wherein, after considering the language of Section 16-G(7), the Full Bench of this Court in paragraph 3 has held as follows:

"According to sub-section (7) no order of suspension shall "remain in force for more than sixty days" unless approval in writing by the Inspector. 'In force' means 'in operation'. A statutory enactment or an order does not lapse merely because it has not come or brought into force. The only effect of an order, which is not in force is that it is ineffective and inoperative. But such an order is not obliterated and continues to exist though ineffective. Similarly when the order, which was in force, has ceased to be operative due to supervening event, will come into force again and will become effective after the infirmity caused by supervening event is removed. In view of the provisions of sub-section(7), an order of suspension of Head or a teacher of an Institution shall remain in force for a period of sixty days from the date of such order even if it is not approved in writing by the Inspector; but in the absence of the approval by the Inspector such an order will cease to operate on expiry of sixty days from the date of the order, although it will continue to exist though inoperative. But if the order of suspension is approved even after the expiry of sixty days, it will come into force again and will become effective immediately on such approval. Any other interpretation will lead to serious consequences. Inaction on the part of the Inspector either deliberate or otherwise may frustrate the object of the provision itself."

Another Single Judge, after considering the judgment of the Full Bench, has further explained that after expiry of sixty days and till fresh order of approval is granted by the District Inspector of Schools, the earlier incumbent automatically becomes entitled to function as Principal.

In view of the aforesaid legal position, it cannot be disputed that with the expiry of sixty days from the date of suspension of Sri Maya Shankar Pandey, to be precise after 05.01.2009, Sri G.K. Rai, who claims to have been appointed as officiating Principal during the period of suspension, in fact ceased to be the officiating Principal by operation of law as Sri Maya Shankar Pandey stood restored as regular Principal. Any action taken by Sri G.K. Rai in his capacity as Principal subsequent to 05.01.2009 would, therefore, be a nullity, inasmuch as he ceased to be the officiating Principal in the eyes of law.

This Court may further record that Sri G.K. Rai not only advertised the vacancy during the period he was not authorized to act, as such he also participated as Member of the Selection Committee, which has held the selections and he has himself issued the appointment letter during the period when he could not have functioned as officiating Principal of the institution under law.

In view of the aforesaid, the advertisement of the vacancy, the selections held for the post and the appointment made by Sri G.K. Rai fall to ground because of his incompetence to function as officiating Principal in view of Section 16-G(7) of the Intermediate Education Act, as explained by the Full Bench of this Court.

So far as the issue of de facto control is concerned, the matter has been explained in detail by the Division Bench of this Court in the case of Committee of Management, Gangadin Ram Kumar Inter College, Jaunpur (supra), wherein in paragraph 20 and 24 it has been explained as follows:

"20. There cannot be any dispute with the proposition as laid down by the Apex Court in Gokaraju Rangaraju v. State of Andhra Pradesh (supra). The de facto doctrine is based on public policy to save third persons in the event of declaration of appointment or election as invalid. Thus when the Committee of Management functions under colour of office its actions cannot be challenged in collateral proceedings on the ground that its election is subsequently set aside. For example the Committee of Management under its functioning may have made appointment, taken disciplinary actions, passed salary bills, granted promotions, taken various decisions regarding institution. The said decision will still hold and shall not be affected and shall be saved by de facto doctrine. However, this de facto doctrine cannot be applied when the election of Committee of Management is directly challenged and the person in the office contest the matter.

"There is another rule also based on public policy. The defective appointment of a de facto Judge may be questioned directly in a proceeding to which he may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the Judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a Judge to his office. Otherwise so soon as a Judge pronounces a Judgement a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a Judge's appointment in an appeal against his judgment is, of course, such a collateral attack."

In the facts of the case there is a direct challenge to the competence of Sri G.K. Rai to act as officiating Principal to advertise the vacancies, held selection and to offer appointment since day and therefore the principle de facto control cannot be pleaded by the respondents for defeating the challenge so made. Even otherwise, as already held above, Sri G.K. Rai could not be the Principal of the institution after expiry of sixty days from the date of suspension of Sri Maya Shankar Pandey and therefore merely because he continued to disclose himself as the Principal with the help of the Committee of Management and the office of the District Inspector of Schools. Approval of such acts would only statutory provisions can be over reached by mere collusion between the officiating Principal, Management and the District Inspector of Schools.

So far as the the judgment relied upon by the counsel for the respondents in the case of Dr. U.S. Sinha (supra) is concerned, the same is with reference to the experience gained while working on ad hoc basis. The judgment is clearly distinguishable, more so, in view of the Division Bench judgment of this Court in the case of Committee of Management, Gangadin Ram Kumar Inter College, Jaunpur (supra) wherein it has been held that de facto principle cannot be claimed whereas there is direct challenge to the action taken for want of competence.

This Court may further record that before the Regional Level Committee two letters, signed by the District Inspector of Schools Malti Rai and Subhash Singh, the Accounts Officer in the office of the District Inspector of Schools, addressed to the Election Commissioner were specifically brought on record, which admit that respondent nos. 11 and 12 are their driver. These documents have completely been ignored by the Regional Level Committee while recording the finding that respondent nos. 11 and 12 were not the driver of the District Inspector of Schools and the Accounts Officer in the office of the District Inspector of Schools. Such approach of the Regional Level Committee cannot be approved of. Closing eyes on the aforesaid facts only generates uncalled for litigation.

This Court may also record that the petitioners are justified in contending that as against 13 Class-IV post sanctioned for the institution (excluding the Sweeper) at best only two post can be reserved for Scheduled Caste having regard to 21% reservation provided therefor. Therefore, in the facts of the case tow post could not have been reserved for Scheduled Caste category candidate under the advertisement, as one post had already been filled by the such reservation in favour of the Scheduled Caste.

The appointment offered to the respondents 8 to 12 even prior to the approval being granted by the District Inspector of Schools under Regulation 101 Chapter-III of the Regulations framed under the Intermediate Education Act has also to be held illegal in view of the judgment of the Division Bench of this Court in the case of Jagdish Singh etc. (supra).

This Court is not examining the issue as to whether in the facts of the case the presence of the nominee of the District Magistrate in the selection committee was essential or not, inasmuch as the matter in that regard has been referred to the Larger Bench, and further since the Court has found the selections to be bad even otherwise.

For the aforesaid reason, the order of the Regional Joint Director of Education dated 30.11.2010 is set aside. The selections and appointments of respondent nos. 8 to 12 are hereby quashed. Let the vacancies be re-advertised as per the law. Parties are at liberty to apply in response thereto.

With the aforesaid observation/direction the present writ petition is allowed.

30.11.2011

Pkb/20704-11