Smt. Hemlata Rajput vs State Of U.P.And 8 Ors.
2019 Latest Caselaw 5078 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No.43
 

 
Case :- WRIT - A No. - 49842 of 2013
 

 
Petitioner :- Smt. Hemlata Rajput
 
Respondent :- State Of U.P.And 8 Ors.
 
Counsel for Petitioner :- Y.K.Sinha,Akshat Sinha,Siddharth Khare
 
Counsel for Respondent :- C.S.C.,Faizan Ahmad,Kavindra Singh,S.F.A.Naqvi,S.M.Shukla
 

 
	Connected with 
 

 
Case :- WRIT - A No. - 50953 of 2017
 
Petitioner :- Smt. Ishrat Fatma
 
Respondent :- State Of U.P. And 9 Others
 
Counsel for Petitioner :- Siddharth Nandan,Neeraj Sinha,Siddharth Khare,T.P. Singh
 
Counsel for Respondent :- C.S.C.,Satendra Pratap Singh
 

 
	And
 

 
Case :- WRIT - A No. - 27119 of 2017
 
Petitioner :- Smt. Ishrat Fatma
 
Respondent :- State Of U.P. And 9 Ors.
 
Counsel for Petitioner :- Syed Ahmed Faizan,Kavindra Singh,Syed Farman Ahmad Naqvi
 
Counsel for Respondent :- C.S.C.,Lal Sahab Yadav,Shyam Mani Shukla,Siddharth Khare,Vinod Kumar
 

 
Hon'ble Ashwani Kumar Mishra,J.

1. There exists an educational institution known as Nagar Palika Balika Inter College, Chandrapuri, Ghaziabad (hereinafter referred as the 'Institution'), which is recognized under the provisions of the U.P. Intermediate Education Act, 1921 (hereinafter referred to as 'Act of 1921'). Provisions of Payment of Salaries Act, 1971 as also the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the 'Act of 1982') are also applicable upon it. The office of Principal in the institution fell vacant on 30.6.2012. Claim of two teachers to officiate against the said post has given rise to filing of these three writ petitions, which have been heard together and are being disposed of by this common judgment.

2. The two claimants before this Court are petitioner Smt. Hemlata Rajput (hereinafter referred to as the 'petitioner') and respondent Smt. Israt Fatima (hereinafter referred to as the 'respondent'). The institution has been setup by Nagar Nigam Ghaziabad. A Shiksha Samiti has been formed by the board of Nagar Nigam to run the institution, of which the Chairman is its Mayor, while the Nagar Ayukt happens to be its Secretary.

3. The petitioner was appointed as Lecturer on 4.7.2003 while the contesting respondent was appointed as Lecturer in 2005 in another institution and was later transferred to the institution concerned. It is thus not in issue that petitioner is senior to the contesting respondent.

4. On the eve of vacancy to the post of Principal on 30.6.2012 an offer was extended by the Management of the Institution to the petitioner to officiate as Principal of the Institution, being its senior most Lecturer, but the offer was declined by the petitioner citing family problems, vide her letter dated 19.5.2012. The person placed at serial no.2 i.e. Smt. Krishna Kumari also conveyed her reluctance to officiate as Principal. It was in that background that contesting respondent was handed over charge of the office of Officiating Principal on 5.7.2012. An order was passed by the Assistant Nagar Ayukt on 3.7.2012 authorizing the respondent to act as the Officiating Principal of the Institution. This arrangement, however, was specified to be purely temporary in nature. Communication was accordingly sent by the Management of Institution to the District Inspector of Schools for attesting the signatures of respondent as Officiating Principal on 27.7.2012. The District Inspector of Schools, however, did not attest her signatures, and instead, called upon the Management of Institution to furnish seniority list of Lecturers in the institution. While the issue relating to attestation of signatures was pending at the level of the Inspector, the petitioner appears to have had a change of heart and she represented on 14.8.2012 by stating that the family compulsions on account of which she had expressed her reluctance to accept officiating appointment on the post of Principal has seized and that she is willing to officiate as the Principal of the Institution.

5. The Inspector who was seized of the issue relating to attestation of signatures of Officiating Principal appears to have required the Nagar Nigam Authorities to obtain an affidavit of petitioner about her refusal to accept officiating appointment of Principal as only a letter was sent by her. The Nagar Nigam Authorities responded to this communication by stating that since respondent has already been handed over charge of the office of Principal and a period of nearly two months stood expired, therefore, the question of obtaining affidavit of petitioner at this stage would not arise. A series of correspondence ensued between the Inspector and the Nagar Nigam Authorities thereafter, in that regard. A letter was sent by Inspector to Nagar Ayukt on 17.6.2013 stating that as the petitioner is now willing to officiate as Principal it would be advisable that she be handed over charge of said office.

6. The issue then came to be examined in a meeting of Shiksha Samiti on 24.8.2013, presided over by the Mayor in which Nagar Ayukt was also present. In this meeting a decision was taken to allow the petitioner to officiate as Principal on the ground that she is senior to respondent and that she has already expressed her willingness to officiate as Principal. This decision was challenged in Writ Petition No.45563 of 2013. However, when the matter was placed before the Court, the counsels informed of subsequent development and after noticing such development, the petition came to be dismissed vide following orders passed on 2.9.2013:-

"On the matter being taken up today Shri Y.K. Sinha, Advocate appearing with Shri Akshat Sinha, Advocate on behalf of respondent nos. 8 and 9 informed the Court that earlier resolution/order has been passed in favour of his client but subsequent to the same on 30th August, 2013 an order has been passed in favour of petitioner reiterating therein that she would function as ad-hoc/officiating Principal of the institution concerned. It has also been informed that the Administrator thereafter has passed consequential order dated 31st August, 2013 and, in view of this, it has been stated that as of date there is no cause of action which survives against the petitioner and whatever cause of action is there same is against his client.

In view of this, as there has already been order passed in favour of petitioner on 30th August, 2013 and communicated by the Administrator on 31st August, 2013, as such, no further orders are required to be passed in the present writ petition. Consequently, present writ petition, as it has been framed and drawn, is dismissed as infructuous.

Shri S.M. Shukla, Advocate has entered appearance on behalf of Nagar Nigam Ghaziabad and he also ratifies the statement of fact, as has been mentioned by Shri Y.K. Sinha, Advocate."

7. It transpires that during the pendency of Writ Petition No.45563 of 2013, the respondent challenged the resolution of the Shiksha Samiti dated 24.8.2013 before the State Government under section 537 of the U.P. Nagar Mahapalika Adhiniyam, 1959. The State Government superseded the resolution of the Shiksha Samiti dated 24.8.2013 vide its order passed on 30.8.2013. This order records that once the petitioner had waived her right to officiate as Principal it was not open for her to change her view or for the Shiksha Samiti to accept such plea of petitioner. The order of State Government dated 30.8.2013 as well as the consequential communication dated 31.8.2013 are the subject matter of challenge in the first of the three petitions i.e. Writ Petition No.49842 of 2013.

8. Though contesting respondent was allowed to continue as Officiating Principal on the basis of the order passed by the State Government, but her signatures were still not attested by the Inspector. A communication dated 20.11.2015 has been brought on record which shows that the administrator/Assistant Nagar Ayukt recommended attestation of signatures of respondent on account of the order dated 30.8.2013, passed by the State Government in her favour to officiate as Principal. Reminders were also sent on 5.1.2016, 5.2.2016, 6.7.2016 in that regard. Ultimately, an order has been passed by the District Inspector of Schools, Ghaziabad on 12.7.2016 attesting the signatures of respondent as Officiating Principal of the institution. This order, however, provides that it shall remain subject to outcome of Writ Petition No.49842 of 2013.

9. Records further reveal that a special audit was held in the institution concerned wherein various shortcomings in the working of respondent was found. The Director of Secondary Education, U.P. forwarded the audit report in question to the Inspector. A direction was also issued to hand over charge of the office of Principal to the senior most lecturer in the Institution in terms of section 18 of the U.P. Secondary Education Service Selection Board Act, 1982. The Inspector, therefore, directed the Institution to initiate disciplinary action against the respondent and to ensure joining of petitioner as Officiating Principal. Pursuant to such direction the Additional Municipal Commission in his capacity as Manager of the Institution, initiated disciplinary action against the respondent and directed the charge of Principal to be handed over to the petitioner vide his order dated 6.6.2017. The order of the Director dated 26.5.2017 and that of the Manager dated 6.6.2017 have been challenged by the contesting respondent in her Writ Petition No.27119 of 2017. The contesting respondent has filed yet another Writ Petition No.50953 of 2017 challenging the appointment order dated 6.6.2017 passed in favour of the petitioner, appointing her as Officiating Principal of the institution. The order of Inspector dated 12.7.2016 is also assailed to the extent payment of salary on the post of Principal to contesting respondent was sanctioned subject to outcome of the Writ Petition No.49842 of 2013. A further prayer is made to release salary for the post of Principal to the respondent for the period 5.7.2012 to 5.6.2017 uptill when she claims to have worked as Principal. The departmental proceedings and charge sheet issued to contesting respondent on 31.7.2017 are also assailed in this petition.

10. The argument advanced on behalf of the petitioner is that being the senior most teacher she is entitled to officiate as Principal of the institution by virtue of Section 18 of the Act of 1982. It is submitted that the petitioner's initial reluctance to officiate as Principal was not of relevance since the petitioner was otherwise not eligible/qualified to hold the post of Principal. Submission is that not being qualified the petitioner had no right to hold the post of Principal and, therefore, she could not waive/relinquish a right which she never had in the first place. It is urged that plea of waiver set up by the respondents is, therefore, bereft of any merit. It is also contended that even before attestation of signatures by the Inspector the petitioner had withdrawn her previous communication not to accept the officiating appointment on the post of Principal. It is also argued that the State Government had no jurisdiction to reverse the decision of managing committee taken on 24.8.2013 by passing the order dated 30.8.2013 as it was wholly beyond the scope of proceedings under Section 537 of the U.P. Nagar Mahapalika Adhiniyam, 1959.

11. On behalf of the respondent, it is urged that at the relevant point of time when the vacancy arose on the post of Principal the petitioner as also the respondent were not qualified to be appointed as Principal, and therefore, doctrine of necessity would have to be pressed into service to deal with the situation. Submission is that once the petitioner had expressly waived her right to be appointed as Officiating Principal and same vacancy continued to exist, it was not open for the petitioner to subsequently resile from her earlier stand. Reliance is placed upon a judgment of this Court in Smt. Archana Singh Vs. State of U.P. and others, 2009 (3) UPLBEC 2348, which has been followed in subsequent judgments also.

12. All the three writ petitions have been tagged and heard together and judgment was reserved on 14.2.2019. While dictating the judgment it transpired that one of the issues that arose for consideration was not addressed by the learned counsels appearing for the parties. In order to afford an opportunity to advance their submissions on such aspect the matter was posted for further hearing vide following order passed on 27.5.2019:-

"Judgment in this bunch of cases was reserved on 14th of February, 2019. During dictation of the judgment, it transpires that one of the issues that would also arise in the facts of the present case would be as to whether a right not crystallized to officiate as Principal could still be waived by applying doctrine of necessity since none of the two teachers possessed qualification required for appointment to the post of Principal on the date of occurrence of the vacancy.

Since the counsels have not been heard on this aspect, it would be appropriate to direct the matter to be listed tomorrow to enable the learned counsels to advance their submissions in that regard.

Put up tomorrow."

13. Pursuant to the aforesaid order, Sri Siddharth Khare, learned counsel for the petitioner, Sri Siddharth Nandan, learned counsel for the respondent and Dr. Amar Nath Singh, learned Standing Counsel for the respondent State have been heard on the aspects noticed in the order dated 27.5.2019.

14. Sri Khare, learned counsel for the petitioner has placed reliance upon a decision of this Court in Committee of Management, S.G.M. Inter College, Khairgarh, District Firozabad vs. State of U.P. and others, 2013 (10) ADJ 412, wherein a controversy, somewhat similar in nature, fell for consideration of this Court.

15. Having noticed the dispute that arises for consideration in the facts and circumstances of the present case it would be convenient to take up the contentious issues with reference to three distinct stages of the controversy. The first stage would cover the period when the vacancy on the post of Principal arose i.e. on 30.6.2012, till the time none of the teachers available in the Institution possessed eligibility for promotion to the post of Principal. This period would have to be regulated by pressing into service the doctrine of necessity. The second phase would include the period when an eligible teacher becomes available for appointment to the post of Officiating Principal, yet, the respondent continued to function allegedly on account of petitioner's earlier reluctance to officiate as Principal. The last stage would be when petitioner got appointed as Officiating Principal in place of respondent and disciplinary action got initiated against her.

16. So far as first stage of the controversy is concerned, it is admitted that petitioner had given up her right to officiate on the post of Principal and the next senior most teacher also conveyed her reluctance to accept the offer. It was in this backdrop that the Managing Committee of the Institution offered officiating appointment to respondent although she was admittedly junior to the petitioner. On the date of occurrence of vacancy on the post of Principal neither petitioner nor respondent were eligible for appointment. The eligibility for appointment to the post of Principal has been specified in Appendix-A to Regulation 1 of Chapter II to the Act of 1921. The qualification specified at serial no.2 included ten years teaching experience with first or second class postgraduate degree. Section 18 of the Act of 1982 provides for adhoc Principal of the Institution and is reproduced hereinafter:-

"18. Ad hoc Principals or Headmasters. - (1) Where the management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the Management shall fill such vacancy on purely ad hoc basis by promoting the senior most teacher, -

(a) in the lecturer's grade in respect of a vacancy in the post of the Principal;

(b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.

(2) 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.

(3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of Principal or the Headmaster, as the case may be, due to any act or omission on the part of the Management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.

(4) Every appointment of an ad hoc Principal or Headmaster under subsection (1) shall cease to have effect from the date when the candidate recommended by the Board joins the post."

17. It has otherwise been settled in Shamshul Zama vs. District Inspector of Schools, Chandauli and others, 2001 (4) AWC 2911 that appointment on the post of Principal on officiating or adhoc basis can be offered only to an incumbent who possesses essential qualification prescribed for the post of Principal. In Balbir Kaur vs. U.P. Secondary Education Service Selection Board and others, JT 2008 (8) SC 381 also it has been held that possessing of requisite minimum eligibility criteria prescribed in Appendix-A to Regulation 1 of Chapter II of the Act of 1921 would be mandatory whether in case of substantive appointment or on officiating/adhoc basis.

18. On the date of occurrence of vacancy on the post of Principal in the Institution concerned neither the petitioner nor the respondent possessed eligibility in terms of Appendix-A. In the absence of availability of eligible teacher who could be appointed as Principal in the Institution it would become inevitable for the Institution to appoint someone as the Officiating Principal even though such incumbent may not possess requisite eligibility. Doctrine of necessity would therefore be attracted to deal with such a scenario.

19. The doctrine of necessity has been examined by this Court in Committee of Management, S.G.M. Inter College, Khairgarh, District Firozabad (supra). Para 20 of the judgment examines the doctrine and is reproduced hereinafter:-

"20. Doctrine of necessity has been subject matter of consideration in the case of Election Commission of India and another Vs. Dr. Subramaniam Swamy and another (1996) 4 SCC 104 wherein view has been taken that law permits certain things to be done as a matter of necessity, if the choice is between allowing a biased person is applied to act or to stifle the action altogether the choice must fall in favour of the dormer as it is the only way to promote decision making. Apex Court in the case of State of U.P. Vs. S.S.L. Srivastava 2006 (3) SCC 276, has taken the view that where doctrine of necessity is applicable compliance with principle of natural justice would be excluded. Apex Court in the case of Lalit Kumar Modi Vs. BCCI 2011 (10) SCC 106, took the view that doctrine of necessity is common law doctrine and is applied to tide over the situation when there are difficulties as law does not contemplate a vacuum, and a solution has to be found out rather than allowing the problem to boil over. Said judgment have been given pressing the doctrine of necessity as an exception to the rule against the doctrine of bias. Said doctrine of necessity in Principle can also be pressed into service to tide over the situation, where statutory provisions are being breached, i.e. where choice is to be made between an eligible and ineligible person, and a solution has to be found out rather than allowing the illegality to perpetuate."

20. Continuance of respondent as the Principal on officiating basis even without possessing essential eligibility would have to be endorsed by applying the doctrine of necessity. During first stage the petitioner had otherwise conveyed her reluctance to officiate as Principal of the Institution. The respondent in such circumstances if has worked as Officiating Principal then no exception can be taken to it and she would be entitled to payment of salary for the post of Principal in the first stage of controversy.

21. The doctrine of necessity, however, would no longer be available once an eligible teacher is available to officiate as the Principal in the Institution. Petitioner admittedly was appointed as Lecturer after she was selected by the Board on 4.7.2003. The qualification required for appointment to the post of Principal would include ten years teaching experience on the post of Lecturer. This experience of ten years is acquired by the petitioner on 4.7.2013. The records further reveal that the Committee of Management of the Institution concerned has also taken a decision on 24.8.2013 to appoint the petitioner as the Principal of the Institution. The doctrine of necessity, therefore, cannot extend beyond 24.8.2013, inasmuch as the competent authority i.e. the Committee of Management had acted in accordance with Section 18 of the Act of 1982 in appointing the senior most eligible teacher as Officiating Principal.

22. The decision of the Committee of Management to appoint the petitioner as Officiating Principal on 24.8.2013, however, has been set aside by the State Government exercising its jurisdiction under Section 537 of the Act of 1959. This decision of the State Government is followed with a subsequent communication dated 31.8.2013, both of which are subject matter of challenge in the first Writ Petition No.49842 of 2013. The State Government in its order has observed that since petitioner has already given up her right to be considered for Officiating Principal in the year 2012, therefore, the petitioner cannot be permitted to claim the office later in point of time and that the Committee of Management had no jurisdiction to accept such stand of the petitioner. This decision of the State Government apparently proceeds on the premise that once the petitioner had waived her right to be considered for appointment to the post of Officiating Principal, it was not open for the petitioner to subsequently turn around and assert right on the post which she has already given up. The reasoning on which the State Government has proceeded is apparently fallacious. On the date when the petitioner conveyed her reluctance to accept the appointment on the post of Officiating Principal, she was not eligible for such appointment. The necessary ingredients to attract the principle of waiver would be the existence of right in a candidate which is then given up. On the relevant date when the petitioner conveyed her reluctance she was not eligible for appointment, and therefore, no right had crystallized in her to be appointed as adhoc Principal. In the absence of any right no occasion arose for the petitioner to have waived the right to be considered for appointment to the post of Officiating Principal. The concept of waiver has been considered by the Apex Court in P. Dasa Muni Reddy vs. P. Appa Rao, AIR 1974 SC 2089 and their Lordships have observed as under in para 13:-

"Abandonment of right is much more than mere waiver, acquies- cence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the respondent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The Doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent positions to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent."

(Emphasis supplied)

23. The Apex Court has clearly acknowledged the principle that there can be no waiver of a non existent right. Admittedly, a candidate who does not possess requisite qualification for appointment to the post of Principal cannot be considered to have acquired a right in terms of Section 18 of the Act of 1982 and consequently there can be no act of waiver on his/her part. It is only by applying doctrine of necessity that arrangement could have been made to allow the petitioner to officiate as Principal but such arrangement would cease to exist as soon as an eligible candidate is available for appointment to the post of Officiating Principal and the appointing authority i.e. Committee of Management takes a decision to appoint such eligible person on the post of Officiating Principal. Allowing the respondent to continue beyond 24.8.2013 would be permitting an act contrary to Section 18 of the Act of 1982. The decision of the Apex Court in P. Dasa Muni Reddy (supra) holding that a non-existent right cannot be waived has consistently been followed in subsequent decisions of the Apex Court including the judgments in Pravesh Kumar Sachdeva vs. State of Uttar Pradesh and others, (2018) 10 SCC 628, Galada Power and Telecommunication Ltd. vs. United India Insurance Co. Ltd. and others, (2016) 14 SCC 161 and Kanchan Udyog Limited vs. United Spirits Limited, (2017) 8 SCC 237.

24. The view which this Court proposes to take finds support for its reasoning from the decision of this Court in Committee of Management, S.G.M. Inter College, Khairgarh, District Firozabad (supra). The facts in that case were quite similar inasmuch as respondent no.4 had refused to act as Principal and had later setup a claim for being considered for appointment. This Court in paragraph 2 noticed that respondent no.4 had refused to act as Principal, and therefore, an Assistant Teacher in L.T. Grade was sought to be installed as Officiating Principal. The factual aspect then was noticed in following words in para 13 to 16 of the judgment in Committee of Management, S.G.M. Inter College, Khairgarh, District Firozabad (supra):-

"13. In the present case peculiar situation has arisen, inasmuch as, as per Section 18 of U.P. Act No. V of 1982 in case an incumbent is to be appointed as Officiating/Adhoc Principal, said incumbent has to be senior most teacher and coupled with this in Intermediate college only teachers who are performing and discharging duty as Lecturer are to be accorded promotion as Section 18 is clear and categorical in its term, by proving that Management shall fill such vacancy on purely adhoc basis by promoting senior most teacher, from amongst teachers working as Lecturer for the post of Principal and in the institution concerned there is only one Lecturer available i.e. Raj Kumar, respondent no. 4, in such a situation and in this background issue is as to whom the charge of Officiating/Adhoc Principal is to be given. Managing Committee of the institution has resolved to hand over the charge to one Kunj Bihari Lal Saraswat, Assistant Teacher in L.T. Grade of the institution concerned.

14. Under Section 18 of U.P. Act No. V of 1982, L.T. Grade teacher is not at all eligible and entitled to be offered appointment as Officiating/Adhoc Principal of the institution of a Intermediate College. Once such is the factual situation that an Assistant Teacher in L.T. Grade cannot be appointed as Officiating/Adhoc Principal of the institution of Intermediate College and the incumbent who has in the past refused to function as Officiating/Adhoc Principal of the institution can he be in the facts and circumstances of the case permitted to function as Officiating/Adhoc Principal of the institution and be given a second chance, when he is prepared to accept the aforementioned assignment.

15. This Court in the case of Shamshul Zama Vs. District Inspector of Schools, Chandauli and others reported in 2001 (4) AWC 2911 has clearly taken the view that even in the matter of appointment as Officiating/Adhoc Principal under Section 18 of U.P. Act No. V of 1982 an incumbent has to possess essential qualification for the post of Principal and incumbent who does not fulfil minimum qualification cannot be appointed even on the post of Officiating/Adhoc Principal of the institution. It has also been mentioned therein, that it will look incongruous that a institution should be headed by a person, who does not possess even the prescribed minimum qualification. It is all the more necessary that only a qualified person be appointed ad-hoc Principal.

16. Apex Court in the case of Balbir Kaur and another Vs. U.P. Secondary Education Services Selection Board Allahabad and others reported in JT 2008 (8) SC 381 has held that for being appointed as Principal of the institution of Intermediate College the service rendered as Headmaster of a High School or as a Lecturer only has to be taken into consideration and further keeping in view the provisions of Section 32 of U.P. Act No. V of 1982, the note to Sub-Rule (5) of Rules 1998 will prevail, and teaching experience as contemplated under the "Note" would apply to both the required experience and the experience more than that ,and therefore, even for required experience only service rendered as Head Master/Lecturer is relevant. For appointment on the post of Principal, the qualifying experience as stipulated in the "Note" would apply. "

25. Having noticed the rival contentions, this Court in the aforesaid case ultimately proceeded to observe that it would be the eligible lecturer available in the institution who alone would be the person entitled to be appointed as Officiating Principal and consequently the decision of the authorities to install him as Officiating Principal has been affirmed.

26. The State Government in the facts and circumstance of the present case proceeded in undue haste in reversing the resolution of the Managing Committee dated 24.8.2013 and directing respondent to continue as Principal of the Institution on a principle which admittedly had no applicability in the facts of the case. Even otherwise, the petitioner was not heard in the matter before passing such order. Other grounds pressed by Sri Khare to challenge the order of the State, including the ground that the order itself was wholly beyond the scope of Section 537 of the Act of 1959 need not be examined any further once it is found that the exercise of power by the State under Section 537 is otherwise unsustainable in law for the reasons already noticed above and stands quashed.

27. The petitioner therefore is found entitled to function as the Officiating Principal of the Institution w.e.f. 24.8.2013 and would also be entitled to salary for the post of Principal. This would be so as the petitioner had already expressed her willingness to function as Officiating Principal and the appointing authority i.e. Managing Committee had also decided to appoint the petitioner as Officiating Principal.

28. In the facts of the present case the third stage commences with the State Government directing an enquiry to be conducted against respondent and allowing the petitioner to officiate as Principal of the Institution concerned. The charge sheet has been issued on the ground that various anomalies have surfaced in audit report for the period respondent officiated as Principal of the Institution. The charge sheet as well as the direction of the State Government to dislodge the respondent and appoint the petitioner as Officiating Principal is the subject matter of challenge in the third petition.

29. So far as the issuance of charge sheet as well as the direction to appoint petitioner as Officiating Principal is concerned this Court finds that specific charges have been levelled against the respondent and she has also been served with a charge sheet. Respondent has already submitted a reply to the charge sheet. This Court, therefore, would not be inclined to examine the contentions raised by the respondent with regard to merits of the charges levelled against her, as all such issues are required to be examined in the disciplinary proceedings at the first instance. Since a reply has already been submitted by the respondent to the charge sheet, it would be expedient that employer be directed to conclude the disciplinary enquiry initiated against respondent at an early date. It is needless to say that all documents which are relevant and are demanded by the respondent for enabling her to submit her defence would be furnished to her.

30. In view of the aforesaid discussions, all the three petitions are therefore disposed of vide following orders:-

(i) Respondent would be entitled to salary on the post of Officiating Principal from 5.7.2012 to 24.8.2013. She would be entitled to salary admissible to a Lecturer after that date. The disciplinary enquiry initiated against her would be concluded within a period of three months from the date of presentation of certified copy of this order. Defence of the respondent as well as her contentions with regard to charges on merits would be dealt with by the competent authority in accordance with law.

(ii) Petitioner since is found eligible and entitled to function as Officiating Principal w.e.f. 24.8.2013 and is otherwise senior most lecturer, as such she would be entitled to payment of salary for the post of Officiating Principal w.e.f. 24.8.2013 onwards. The Government Order dated 30.8.2013 as well as consequential order dated 31.8.2013 stands quashed.

(iii) U.P. Secondary Education Service Selection Board as well as authorities of the State would ensure that a regularly selected candidate is posted in the Institution concerned as the Principal, at the earliest possible. In case an advertisement has not been issued so far, the same shall be issued in the next recruitment which is initiated by the Board and recruitment proceedings would be undertaken at the earliest. It would otherwise be open for the authorities of the Board to consider placement of any other Principal in the Institution concerned if it is otherwise permissible in law.

(iv) Since the dispute between petitioner and respondent has dragged for fairly long, it would be appropriate to observe that disciplinary authority would ensure that while considering the charges levelled against respondent the petitioner is not allowed to influence the disciplinary proceedings in any manner to the detriment of respondent. Grievance, raised if any, in that regard, would be dealt with by the disciplinary authority.

31. No order is passed as to costs.

Order Date :- 28.5.2019

Ashok Kr./Ranjeet Sahu

(Ashwani Kumar Mishra, J.)