Ashok Kumar Pandey vs State Of U.P. And 4 Others
2022 Latest Caselaw 21601 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 677 of 2022
 

 
Appellant :- Ashok Kumar Pandey
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Raj Kumar Singh,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Arun Kumar
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

(Delivered by Manoj Misra, J.)

1. This intra court appeal is against the judgment and order of the learned Single Judge dated 12.09.2022 dismissing Writ-A No.1562 of 2022 filed by the appellant.

2. In brief, the facts giving rise to the present appeal are as follows:-

3. Jai Kishan Inter College, Lalpur, Basti (for short the ''Institution') is a recognized institution governed by the provisions of U.P. Intermediate Education Act, 1921 (for short the 1921 Act) and U.P. Secondary Education Services Selection Boards Act, 1982 (for short the 1982 Act) wherein the post of Head of the Institution lies substantively vacant. In the year 2016, one Sri Chandradev Mishra was appointed as the officiating Head of the institution. He retired on 31.03.2019 after attaining the age of superannuation. The appellant being the senior-most Assistant Teacher in LT Grade was offered to officiate as the Head of the Institution but, vide communication dated 15.07.2019, the appellant declined the offer stating that on account of medical condition of his mother he would not be able to discharge the responsibilities attached to the office. Consequently, Sanjay Kumar Dwivedi (respondent no.5), the next senior-most LT Grade Teacher, was offered appointment as Head of the Institution by resolution of the Committee of Management dated 28.08.2019, which was approved by the District Inspector of Schools (for short DIOS), Basti vide order dated 13.02.2020 thereby directing that Sanjay Kumar Dwivedi (fifth respondent) shall continue to officiate as Head of the Institution till a candidate recommended by the Board joins the post. After the appointment of fifth respondent, the appellant made a representation on 12.11.2021 against the appointment of fifth respondent with a prayer that the order dated 13.02.2020 approving the appointment of fifth respondent be cancelled. On the said representation, as there had been an Authorized Controller appointed in the Institution, after calling for comments from the Authorized Controller, DIOS, Basti, vide letter dated 14.01.2022, reported that the appointment of fifth respondent was in accordance with law as the senior-most LT Grade Assistant Teacher, namely, Ashok Kumar Pandey, had refused to accept the responsibility as an officiating Head of the Institution when offered to him.

4. Questioning the approval order dated 13.02.2020 and the report dated 14.01.2022, the appellant filed Writ-A No.1562 of 2022 with a prayer that the aforesaid orders be quashed and a direction be issued to DIOS, Basti to issue an order of promotion of the appellant as an officiating Principal in the Institution. By the impugned judgment and order dated 12.09.2022 the writ petition was dismissed against which, the present appeal has been filed.

5. We have heard Sri Ashok Khare, learned Senior Counsel, assisted by Sri Raj Kumar Singh, for the appellant; learned Standing Counsel for the respondents 1, 2 and 3; and Sri Arun Kumar for the respondent no.5.

6. Sri Ashok Khare, learned senior counsel, contended that Section 18 of the 1982 Act specifically provides that where the management has notified the vacancy to the Board in the manner specified and the post of Principal or the Head of the Institution remains vacant for more than two months, the management has to 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; and (b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster. He submitted that Section 18 leaves no room for appointment of a person who is not the senior-most Assistant Teacher and only in a case where the senior-most Assistant Teacher refuses to accept the appointment that a person next to him can be offered appointment. It was urged that the fifth respondent was appointed only because the appellant expressed his inability to accept the responsibilities attached to the post on account of medical condition of his mother. Such decline to the offer is to be considered temporary for the limited period during which the appellant was unable to discharge his duties and it cannot be considered as a complete and unqualified refusal therefore, as soon as the appellant disclosed his willingness to accept the responsibility attached to the office of the Principal as an officiating Principal of the Institution, there was no good reason for the respondents not to appoint the appellant as an officiating Principal of the Institution. Sri Khare placed reliance on the following decisions in support of his submissions:- (a) 2004 (3) UPLBEC 2297 (Dhanesh Kumar Sharma Vs. State of U.P. and others), equivalent to 2004 Supreme (All) 682 and 2004 (5) AWC 4091, which has been affirmed by a Division Bench of this Court in Special Appeal No.506 of 2022 (Vikas Jain Vs. State of U.P. and 5 others), decided on 08.07.2022; and (b) Dr. Jagathy Raj V.P. Vs. Rajitha Kumar S.: (2022) 6 SCC 299.

7. By placing reliance on the aforesaid decisions, Sri Khare submitted that the appellant's declining the offer was only for the limited period while he had been attending to his mother and it was not relinquishment of his right to be appointed therefore, the moment the appellant expressed his willingness to accept the responsibility, by virtue of statutory mandate contained in Section 18 of the 1982 Act, the appellant ought to be offered appointment. He thus prayed that the order of the learned Single Judge be set aside and the writ petition be allowed.

8. Per contra, Sri Arun Kumar, learned counsel for the fifth respondent, submitted that the decisions cited by the learned counsel for the appellant are not applicable to the facts of the present case, inasmuch as, in those cases the issue that had come before the Court was whether the person who refuses to accept the offer to be appointed as an officiating Principal/Headmaster would be deprived of his right to be considered for appointment as and when the occasion arises next. He submitted that in the instant case the next occasion has not yet arisen. Because the fifth respondent was offered appointment consequent to refusal by the appellant and once appointed, the appointment continues till he demits office or a candidate recommended by the Board joins the institution. He submitted that as neither of the two contingencies has arisen, the appointment once made would continue and therefore, the prayer of the appellant is misconceived.

9. Having considered the rival submissions, on perusal of the record, we notice that following facts are not disputed:- (i) that the 5th respondent was offered appointment as officiating Head of the Institution being the next senior-most to the appellant on refusal of the appellant to accept the offer; and (ii) the 5th respondent has not demitted office and, till date, none recommended by the Board has joined the institution.

10. No doubt, Section 18 of the 1982 Act provides that a senior-most Assistant Teacher is to be considered for appointment as an officiating Head of the Institution but by applying the doctrine of necessity through various judicial pronouncements it is settled that where senior-most incumbent declines the offer then the next senior-most may be offered appointment. Even the learned counsel for the appellant does not dispute the aforesaid position of law. The thrust of the submissions of the learned counsel for the appellant is on the nature of decline to accept the offer. According to the appellant, he had not declined the offer of appointment but had expressed his inability to take on the responsibility on account of medical condition of his mother. As the situation changed, he applied to accept the responsibilities attached to the office of Head of the Institution and, therefore, such responsibilities ought to have been given to him by virtue of the provisions of Section 18 of 1982 Act.

11. We have given our thoughtful consideration to the rival submissions and have also carefully perused the letter dated 15.07.2019 whereby the appellant declined the offer when made to him in the year 2019. A perusal of the letter dated 15.07.2019 would reflect that in unqualified terms the appellant stated that he is not in a position to accept the responsibilities of Head of the Institution. He in fact requested that the management may appoint next senior-most assistant teacher as officiating Head of the Institution. There is nothing in the letter dated 15.07.2019 to indicate that the appellant desires to accept the responsibility as soon as his mother recovers. In these circumstances, once the appointment of 5th respondent was made and the same was not limited to any specified period rather was to continue till a duly recommended candidate from the Board joins the institution, the appointment of 5th respondent cannot be annulled on mere request of the appellant that he wishes to accept the responsibilities of head of the institution now. The decisions on which the learned counsel for the appellant has placed reliance are more on the issue that a decline would not mean that the declining candidate would lose his right to stake a claim when the occasion arises next. In the instant case, the next occasion for appointment (officiating) has not yet arisen therefore, the learned Single Judge was justified in dismissing the writ petition of the appellant. The appeal is dismissed.

Order Date :- 19.12.2022

AKShukla/-