Rohit Kumar Verma vs State Of U.P. Thru ...
2021 Latest Caselaw 9704 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 30.07.2021
 
Delivered on 06.08.2021
 

 
Court No. - 7
 

 
Case :- SERVICE SINGLE No.15697 of 2021
 

 
Petitioner :- Rohit Kumar Verma
 
Respondent :- State Of U.P. Thru Prin.Secy.Secondary Edu.Lucknow & Ors.
 
Counsel for Petitioner :- Kuldeepak Nag (K.D.Nag)
 
Counsel for Respondent :- C.S.C.,Dr L P Mishra
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri K.D. Nag, learned counsel for the petitioner, Sri Shailendra Singh, learned Chief Standing Counsel-III for the State-respondents and Dr. L.P. Misra, learned counsel for opposite party no.6.

2. By means of this petition, learned counsel for the petitioner has prayed following reliefs:-

"(A) To issue a writ, order or direction in the nature of Certiorari quashing the impugned dated 09.07.2021 passed by the Joint Director of Education, Sixth Region, Lucknow, after summoning the original from the opposite parties, contained in Annexure No.1 to the writ petition.

(B) To issue a writ, direction or order in the nature of Mandamus directing the opposite parties 1 to 6 to aid and assist to the Uttar Pradesh Secondary Education Service Selection Board, Allahabad in holding selection for the post of Principal, Ram Pal Trivedi Inter College, Gosainganj, Lucknow.

(C) To issue a writ, direction or order in the nature of Mandamus directing the opposite parties not to disturb the functioning of the petitioner on the post of Principal of the college."

3. Contention of learned counsel for the petitioner is that the petitioner was initially appointed on the post of Lecturer - English in Ram Pal Trivedi Inter College, Gosainganj, Lucknow on 4.10.2002 after being duly selected by the U.P. Secondary Education Service Selection Board. The Principal of the institution died on 23.3.2020 and the senior most teacher of the institution, namely, Sri Nand Kishor declined to take charge of Principal for his personal reasons, therefore, the petitioner has been given charge of Officiating Principal on 22.4.2020. The District Inspector of Schools, Lucknow approved the signature of the petitioner vide letter dated 13.5.2020. Learned counsel for the petitioner has submitted that the petitioner being second senior most Lecturer in the College is entitled to be considered for regular selection for the vacancy of Principal. As per learned counsel for the petitioner, the petitioner intimated the vacancy of Principal to the District Inspector of Schools vide letter dated 27.7.2020 and the District Inspector of Schools was duty bound to take requisite steps to fulfil the post of the Principal. He has further submitted that the Committee of Management has not taken any steps to fill up the post of Principal on or before 15.7.2020.

4. Learned counsel for the petitioner has submitted that by means of impugned order dated 9.7.2021 passed by the Joint Director of Education, 6th Region, Lucknow, the application of one Sanjay Mishra, Principal, Kisan Inter College, Saryya Raja Sahab, Sitapur has been forwarded to the Additional Director of Education (Secondary) for filling up the post of Principal through transfer.

5. Dr. L.P. Misra, learned counsel for opposite party no.6 has submitted at the very outset that the Committee consisting of Additional Director of Education (Secondary), Chairman, Joint Director of Education and Secretary, Board of Secondary Education being Members as envisaged under Regulation 59 (2) (c) of Chapter-III of the Regulations has not taken any decision and every adherence of the procedure prescribed by law or any other relevant matter is to be considered by the Committee, therefore, this writ petition is premature at this stage. Besides, the petitioner has never been appointed as adhoc Principal of the College in question in accordance with the statutory prescription contained in Section 18 of the 1982 Boards Act, rather he has been permitted to officiate the duties of Principal, therefore, he cannot be said to have any locus standi to file present writ petition.

6. Sri K.D. Nag has placed reliance upon the decision of the Division Bench of this Court in re; Hari Pal Singh Vs. State of U.P., [2016 (34) LCD 2759], by submitting that since the Committee of Management has not carried out required exercise in terms of Rules 10 & 11 of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as "Rules, 1998"), then it will cease to any right to make any determination about the mode of filling the vacancy of the Principal of the institution. He has referred Rule 10 (a) of the Rules, 1998 submitting that such rule provides that the post of Principal of the Intermediate College shall be filled on regular basis by direct recruitment of a candidate selected by the Selection Board. Further, Rule 11 (1) of the Rules, 1998 provides that Committee of Management will determine/ resolve the mode of filling the vacancy and will communicate to the District Inspector of Schools concerned latest by 15th July of the year of the recruitment, which has admittedly not been done by the Committee of Management, therefore, the Committee of Management will cease to any right to make any determination about the mode of filling of vacancy of Principal as such after 15th July, the District Inspector of Schools becomes duty bound to communicate the vacancy to the Selection Board for selection as provided in Rule 11 (4) of the Rules, 1998 as has been held by this Court in re; Hari Pal Singh (supra). Sri Nag has also submitted that the issue in question is no more res integra as it has been settled by the Full Bench of this Court in re; Prashant Kumar Katiyar Vs. State of U.P. and others, 2013 (1) ESC 221. As per Sri Nag, the ratio of the Full Bench read with relevant Rules is clear to the effect that the authorities, who are obliged to fill up the vacancies occurring in the year of recruitment, have to mandatorily perform their function to determining and informing the vacancy. Failure by the Management or the District Inspector of Schools to act as per Rule 11 of the Rules, 1998 would, therefore, not generate a right in favour of any person to seek transfer or even in the Committee of Management to defeat the very purpose of Rule 11 of determining or intimating the vacancies to the Selection Board for direct recruitment.

7. Learned Chief Standing Counsel as well as Dr. L.P. Misra, learned counsel for opposite party no.6 have submitted with vehemence that all the grounds so taken by the petitioner may be defended by filing detailed counter affidavit and supplementary counter affidavit to the rejoinder affidavit filed by Sri K.D. Nag on 30.7.2021 but the fact remains that since appropriate decision is to be taken by the Committee under Regulation 59 (2) (c) of Chapter-III of the Regulations, therefore, they want to reserve their right to address the Court after appropriate decision is taken by the Committee, if the same is assailed before the Court. Dr. L.P. Misra has also submitted that even the judgment cited by the learned counsel for the petitioner i.e. Hari Pal Singh (supra), the Division Bench has observed that if the claim of respective parties is to be determined by the competent authority, then the writ petition shall be premature. Para-25 of the judgment in re; Hari Pal Singh (supra) is being reproduced herein below:-

"[25] However, there is substance in the argument that the issues that have been raised are at a slightly pre-mature stage, inasmuch as the claim of the respective parties is yet to be determined by the competent authority which is directly dependent on the claim of the transfer of the respondent No.11. It shall therefore open to the respective parties to raise a challenge on merits as and when, if permissible under law, whenever the competent authority takes a decision as per our directions given hereunder and the law as observed here-in-above."

8. Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that since vide impugned order dated 9.7.2021, the Joint Direction of Education, 6th Region, Lucknow has requested the Additional Director of Education (Secondary), U.P., Prayagraj to take appropriate decision in the issue in question, more particularly regarding filling up the post in question through transfer, therefore, the competent authority is directed to proceed with the matter and determine the respective claim expeditiously, preferably within a period of six weeks from the date of presentation of certified/ computer generated copy of this order and after giving an opportunity of hearing to the petitioner and the Committee of Management as well as the opposite party no.7. It is further observed that the law of Full Bench in re; Prashant Kumar Katiyar (supra) will have to be taken into consideration by the competent authority while determining the process of transfer to be adopted in the present case.

9. Therefore, the petitioner shall provide photocopy of the decision of Full Bench in re; Prashant Kumar Katiyar (supra) to the competent authority while producing the certified/computer generated copy of this order alongwith comprehensive representation taking all pleas and grounds, which are available to the petitioner. Till appropriate decision is taken by the competent authority under Regulation 59 (2) (c) of Chapter-III of the Regulations, the status quo, so far as the status of petitioner holding the post of Officiating Principal is concerned, shall be maintained.

10. It shall be open to the respective parties to raise a challenge on merits as and when, if permissible under law, whenever the competent authority takes a decision as per my directions given here-in-above and the law as observed here-in-above.

11. In the aforesaid terms, the writ petition is disposed of.

[Rajesh Singh Chauhan,J.]

Order Date :- 6.8.2021

RBS/-