C/M, Prem Vidyalay Inter College, ... vs State Of U.P. And 4 Others
2019 Latest Caselaw 4345 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 19
 

 
Case :- WRIT - A No. - 7441 of 2019
 

 
Petitioner :- C/M Prem Vidyalay Inter College, Farrukhabad, And Another
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Siddharth Khare, Ashok Khare (Sr. Advocate)
 
Counsel for Respondent :- C.S.C.,Archana Singh, Rajesh Kumar
 

 
Hon'ble Manoj Kumar Gupta,J.

The petitioner is Committee of Management of Prem Vidyalaya Inter College, Raiseypur, Farrukhabad. The institution is recognised under the U.P. Intermediate Education Act, 1921. The provisions of U.P. Act No.5 of 1982 and U.P. Act No.24 of 1971 are applicable to it as it is receiving grant-in-aid upto High School level and there is Vitt Vihin recognition for classes at the Intermediate level. The petitioner Committee of Management on 28.3.2017 resolved to appoint one Lalta Prasad, Assistant Teacher, LT Grade, as officiating Principal (High School Level) in contemplation of retirement of the incumbent Sri Narendra Singh Sisodia on 31.3.2017. The resolution specifically recites that the Respondent No.5 who is the senior most teacher, was offered the post of officiating Principal but he refused to accept the offer. He also filed a notary affidavit expressing his inability to hold the post. The District Inspector of Schools, by order dated 6.4.2017, attested the signatures of Lalta Prasad as officiating Principal (High School Level). Lalta Prasad is not senior-most teacher of the institution. Indisputably, it is the fifth respondent who is senior-most teacher. He approached the District Inspector of Schools with an application dated 19.12.2017 staking claim for appointment as officiating Principal. Thereupon the District Inspector of Schools passed an order dated 3.12.2018 cancelling his previous order dated 6.4.2017. Lalta Prasad, aggrieved thereby filed Writ-A No.11570 of 2018 before this Court. The writ petition filed by him was resisted by respondent no.5 contending that the affidavit supposedly given by him expressing inability to accept the post of officiating Principal was not a voluntary act on his part but it was obtained by the Management under coercion. This Court held that the District Inspector of Schools without recording any finding in respect of the claim made by respondent no.5 had proceeded to revoke the order dated 6.4.2017. Consequently, the order dated 3.5.2018 was quashed and the District Inspector of Schools was directed to pass a fresh reasoned order. The direction contained in the operative part of the order of this Court dated 5.12.2018 is as follows :-

"Consequently, the order dated 03rd May, 2018 cannot be sustained is quashed. The District Inspector of Schools, Farrukhabad shall afford an opportunity of hearing to the parties concerned and proceed to pass a fresh reasoned order, within a period of two months from the date of presentation of a certified copy of this order. The authority concerned shall specifically examine the objection of respondent no. 6 as has been noticed above with regard to the genuineness of the affidavit or the proceedings initiated. Status quo with regard to the working on the office of Principal shall be maintained till a fresh order is passed, as indicated above.

In compliance of the said order, the District Inspector of Schools has passed the impugned order dated 27.2.2019 whereby it has returned a finding that the affidavit was obtained from respondent No.5 under coercion and that the proceedings of the Management dated 28.3.2017 are a result of manipulation and thus wholly illegal. Accordingly all proceedings relating to appointment of Lalta Prasad as officiating Principal has been cancelled. A further direction has been issued to the Management to take appropriate steps for appointing respondent no.5 as officiating Principal and for getting his signatures attested. Lalta Prasad challenged the said order by filing Writ-A No.4258 of 2019 in which this Court invited counter affidavit but no interim order was passed in his favour. When the Management failed to comply with the direction contained in the order dated 27.2.2019, the District Inspector of Schools issued notice dated 27.3.2019 to the Manager requiring him to promote respondent no.5 on the post of officiating Principal and get his signature attested within seven days, failing which power under Section 18(2) and (3) of the U.P. Act No. 5 of 1982 would be exercised. The Management gave reply to the said notice on 6.4.2019 pointing out that in case exercise for adhoc promotion is under taken, it would be violative of Model Code of Conduct which is in force on account of General Elections. The District Inspector of Schools, by letter dated 16.4.2019 informed the Manager that formal exercise for adhoc promotion of respondent No.5 be under taken after the election, but in the meantime his signatures be got attested as officiating Head of the Institution. However, when the Management again did not comply with the said order, the District Inspector of Schools passed the impugned order on 23.4.2019 attesting signatures of respondent No.5 as officiating Head of the Institution. Aggrieved by the orders dated 27.2.2019 and 23.4.2019 the instant petition has been filed.

Sri Ashok Khare, learned Senior Counsel assisted by Sri Harshul Bhatnagar stated at the outset that he is not assailing the finding returned in the impugned order relating to obtaining of affidavit from respondent no.5 under coercion and with regard to illegality of the previous proceedings of the Committee of Management dated 28.3.2017. He submitted that the controversy before the District Inspector of Schools was confined to the plea raised by respondent no.5 that his affidavit was obtained under coercion and that appointment of Lalta Prasad as officiating Principal was illegal. It is submitted that after examining the said plea and returning a finding thereupon, the District Inspector of Schools should have remitted the matter back to the Committee of Management for passing a fresh proposal for appointment of officiating Principal in the institution. The submission is that by issuing direction to the Management to appoint respondent no.5 as officiating Principal, the Management has been deprived of its right to consider the eligibility and suitability of respondent no.5 for appointment on the post of officiating Principal.

On the other hand, Sri G.K. Singh, learned Senior Counsel appearing on behalf of respondent no.5 submitted that under the amended provision of Section 18 of the U.P. Act No. 5 of 1982, the Management is left with no discretion but to appoint the senior-most teacher in the institution as officiating Principal. He further submitted that where the Management fails to promote the senior-most teacher as provided under sub-section (1), the Inspector is invested with power to issue order in that regard. It is submitted that in such situation, no illegality has been committed by the District Inspector of Schools in issuing the impugned order. He further submitted that it had never been the case of the Management that conduct or service record of respondent no.5 is not satisfactory. He further points out that in the institution all teachers are of LT grade, but amongst them, the fifth respondent is the senior-most. He possesses the requisite qualification for the post of Principal and thus, there was no impediment in his appointment as officiating Principal.

It is clear that the controversy relating to filling up of post of Head of the Institution came to the fore with the fifth respondent staking claim for it by filing application dated 19.12.2017. He asserted that being the senior-most teacher in the institution, the order of District Inspector of Schools dated 6.4.2017 attesting signatures of Lalta Prasad on the basis of resolution of the Committee of Management dated 28.3.2017 was wholly illegal. The District Inspector of Schools, on the said application, cancelled his previous order by passing order dated 3.5.2018. The said order was subjected to challenge before this Court by Lalta Prasad. Although the writ petition was allowed but the District Inspector of Schools was directed to examine the objection of respondent no. 5 and pass a fresh order. The specific objection by respondent no.5 was that he being senior-most was entitled to be appointed as officiating Head and that the alleged affidavit on basis of which he was denied the right to hold the post of officiating Principal, was obtained under coercion and was not a voluntary act on his part. The Committee of Management filed a detailed representation before the District Inspector of Schools in which it took various pleas but wherein it did not take any plea that the service record of respondent no.5 contained any adverse entry or his conduct was not satisfactory. Even in the writ petition there is no such pleading. At the time of oral submission, learned counsel for the petitioner also fairly admitted that the petitioner possesses requisite qualification for the post. He however urged that respondent No.5 is Assistant Teacher in LT Grade and not lecturer grade. But he did not dispute the fact that there is no other teacher in lecturer grade in the institution and all teachers in the institution are of LT grade and respondent no.5 is the senior-most amongst them. It is apposite to note that the management vide its earlier resolution dated 28.3.2017 offered the post of Principal (High School Level) to respondent No.5 but he was not appointed in view of his alleged affidavit expressing inability to work as such. Now, that the story set up in this regard has been found to be a conspiracy on part of the Management to by-pass the petitioner, it does not lie in its mouth to contend that it has yet to assess the suitability and eligibility of respondent No. 5. The submission is preposterous.

There is one another important aspect which deserves to be alluded to. Section 18, prior to its amendment by Act No.5 of 2001, conferred discretion upon the Management to appoint or not appoint senior-most teacher as officiating Principal as it provided that vacancy in the post of a Principal/Head Master "may" be filled by promoting the senior most teacher in the lecturer/trained graduate grade. However, after amendment, the legislature has used the word "shall" in sub-section (1) of Section 18 mandating the Management to fill the vacancy on purely ad hoc basis by promoting the senior-most teacher. Sub-section (2) further provides that where the management fails to promote the senior-most teacher under sub-section (1) the inspector shall himself issue the order of promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he joins such post in pursuance of such order of promotion.

Thus, under the amended provision, in normal course, the senior-most teacher has to be appointed as the officiating Principal. There could be departure to the said rule only when there are cogent and compelling reasons for the same, none of which are shown to exist in the instant case.

As a result of above discussion, there is no merit in the submission. The petition lacks merit and is dismissed.

Order Date :- 10.5.2019

skv

(Manoj Kumar Gupta, J.)