Smt. Sarita Sharma vs State Of U.P. And 5 Others
2023 Latest Caselaw 26930 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:190087
 
Court No. - 35
 

 
Case :- WRIT - A No. - 14115 of 2023
 

 
Petitioner :- Smt. Sarita Sharma
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Brijesh Kumar Verma,Brijesh Kumar Verma,Srivats Narain
 
Counsel for Respondent :- C.S.C.,Anurag Shukla,Kamal Pati Shukla,Parmatma Nand Ojha
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri V.K. Singh, learned Senior Counsel assisted by Sri Rishabh Narayan Singh, learned counsel for the petitioner, Sri Ajeet Kumar Singh, the learned Addl. Chief Standing Counsel, who appears for Respondents 1 to 3, Sri K.P. Shukla, who appears for Respondent nos. 4 and 5 and Sri P.N. Ojha, who appears for Respondent no.6.

2. The parties before this Court has made a statement at Bar that the issue which is being raised in the present writ petition is a legal issue, thus according to them, they do not propose to file any affidavit in the writ petition. They pray that the matter be decided on the basis of the pleadings available on record. With the consent of the parties, the writ petition is being decided at the fresh stage.

3. The case of the writ petitioner is that the fourth respondent, S.D. Kanya Inter College, Railway Colony Saharanpur is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921 and the U.P. Act No.24 of 1971 stands applicable.

4. As per the writ petitioner, he was appointed as Subject Expert in N.A. Inter College Bilsi, Budaun on 18.10.2000 and thereafter he was transferred to Arya Kanya Inter College, Bilsi, Budaun and he continued to function and in the meantime an amendment was incorporated under Section 21 of the U.P. Secondary Education Service Selection Board Act and Section 21(E) providing for absorption of Subject Expert. In terms of the same, an order was passed appointing the writ petitioner as Lecturer in the Institution in question, fourth respondent on 20.09.2007 and thereafter according to the writ petitioner, he was given the charge of the Officiating Principal against the vacancy, which stood arisen on 30.06.2014 and the signature of the petitioner stood attested on 05.07.2014. It is the further case of the writ petitioner that owing to certain circumstances, he was placed under suspension, which compelled the writ petitioner to prefer Writ-A No.58881 of 2015 and the said writ petition according to the writ petitioner was entertained and an order was passed on 14.10.2015 according interim protection to the writ petitioner. Though the writ petitioner was armed with an interim order, but all sorts of hindrances and obstacles were being put in the way of the writ petitioner and in the month of November 2022, when the new Manager took charge pursuant to fresh elections, then he corresponded with the District Inspector of Schools, Saharanpur for stopping the salary of the writ petitioner. According to the writ petitioner, successive notices were issued to the writ petitioner, to which reply was submitted by the writ petitioner, but attempts were being made to dislodge the writ petitioner as an Officiating Principal and charges were also sought to be leveled upon him. Learned counsel for the writ petitioner places reliance upon the document dated 20.01.2023 followed by 30.01.2023. As per the writ petitioner, the Committee of Management of the Institution in question proceeded to pass a resolution dated 29.06.2023, whereby one Smt. Anita Rani, sixth respondent was directed to be handed over the charge of the Officiating Principal stripping off the writ petitioner of the charge of the Officiating Principal. Thereafter on 30.06.2023, an order was passed by the Committee of Management of the Institution in question on 30.06.2023, whereby the charge has been taken away from the writ petitioner and handed over to Respondent no.6 from the post of Officiating Principal and in the meantime also, a charge memorandum has been issued to the writ petitioner containing certain charges dated 21.07.2023. An order in the form of a communication was also passed by the District Inspector of Schools, Saharanpur, third respondent addressed to the fourth respondent, Manager of the Institution in question on 02.08.2023, whereby it has been noticed that though charge had been handed over in favour of the sixth respondent, Smt. Anita Rani, but the writ petitioner is corresponding and using rubber stamp and till the settlement of the dispute in question, the sixth respondent be assigned the work and allowed to perform the duties of the Officiating Principal.

5. Questioning the order dated 30.06.2023 passed by the Committee of Management and the order dated 02.08.2023 passed by the District Inspector of Schools, Saharanpur with a further relief not to interfere in the functioning of Officiating Principal and for payment of salary from December, 2022 to February 2023 and from June 2023 till date with interest, the present writ petition has been filed.

6. This Court entertained the writ petition on 25.08.2023 while passing the following orders:

"Sri V.K. Singh, learned Senior Counsel who appears for the writ petitioner submits that the resolution of the Committee of Management dated 30.06.2023 of the fourth respondent as well as the order dated 02.08.2023 of the District Inspector of Schools, Shaharanpur proceeds on misconception of facts and law. According to him, might be, as per the respondents there are serious allegations leveled upon the writ petitioner (though disputed), however, in view of the language employed in Section 18 of the U.P. Act No. 5 of 1982 coupled with the judgment in the case of Pramodni Agarwal Vs. Regional Inspectress of Girls Schools & Others, reported in 1994 (23) ALR 208. Once a senior most Lecturer is allowed to officiate or made ad hoc Principal then he enjoys the benefits and the rank of the said assignment which could only be taken under the provisions of Section 21 of the U.P. Act No. 5 of 1982 and the District Inspector of Schools could not even in fact poke his nose in the said matter as the said issue was to be thrashed by the Board in question. He submits that both the orders suffer from patent illegality.

Sri K.P. Shukla who appears for the fourth respondent has produced before this Court the judgment in the case of Dr. M.S. Patil Vs. Gulbarga University reported in 2010 AIR Supreme Court 3783 wherein according to him once the appointment itself is illegal void ab initio from the very inception then it is hardly immaterial as to whether he enjoys the benefits of a post either by way of officiation or ad hoc.

Sri Ajit Kumar, learned Additional Chief Standing Counsel who appears for respondents No. 1 to 3 seeks time obtain instructions and report back on the next date fixed.

Put up this case as fresh on 29.08.2023 at 12:00 Noon."

7. Thereafter on 27.09.2023, the following orders were passed:

"This Court on 25.8.2023 proceed to pass the following order:-

"Sri V.K. Singh, learned Senior Counsel who appears for the writ petitioner submits that the resolution of the Committee of Management dated 30.06.2023 of the fourth respondent as well as the order dated 02.08.2023 of the District Inspector of Schools, Shaharanpur proceeds on misconception of facts and law. According to him, might be, as per the respondents there are serious allegations leveled upon the writ petitioner (though disputed), however, in view of the language employed in Section 18 of the U.P. Act No. 5 of 1982 coupled with the judgment in the case of Pramodni Agarwal Vs. Regional Inspectress of Girls Schools & Others, reported in 1994 (23) ALR 208. Once a senior most Lecturer is allowed to officiate or made ad hoc Principal then he enjoys the benefits and the rank of the said assignment which could only be taken under the provisions of Section 21 of the U.P. Act No. 5 of 1982 and the District Inspector of Schools could not even in fact poke his nose in the said matter as the said issue was to be thrashed by the Board in question. He submits that both the orders suffer from patent illegality.

Sri K.P. Shukla who appears for the fourth respondent has produced before this Court the judgment in the case of Dr. M.S. Patil Vs. Gulbarga University reported in 2010 AIR Supreme Court 3783 wherein according to him once the appointment itself is illegal void ab initio from the very inception then it is hardly immaterial as to whether he enjoys the benefits of a post either by way of officiation or ad hoc.

Sri Ajit Kumar, learned Additional Chief Standing Counsel who appears for respondents No. 1 to 3 seeks time obtain instructions and report back on the next date fixed.

Put up this case as fresh on 29.08.2023 at 12:00 Noon."

Essentially today when the matter has been taken up the legal question stood arisen as what would be the import and impact the provisions contained under the Uttar Pradesh Education Service Selection Commission Act, 2023 as notified on 31.8.2023 purported to be under the provisions contained under Clause (3) of the Article 348 of the Constitution of India in the wake of the fact that Section 31 of the said Act even in fact repeals and saves the actions purported to be taken under Uttar Pradesh Higher Education Service Commission, 1980, Uttar Pradesh Secondary Education Services Selection Board, 1982 and the Uttar Pradesh Education Service Commission Act, 2019 with relation to Sub-Section 2 of the Section 31 providing for certain saving post repeal.

The Court finds that the Committee of Mangement, fourth respondent had pursuant to a resolution reverted the writ petitioner from the post of Officiating/Ad Principal to Lecturer on 30.6.2023 which was accorded approval on 2.8.2023 by the District Inspector of Schools (2) Saharanpur and at that point of time the 2023 Act was not in existence.

On a pointed query was raised upon Sri Ajeet Kumar Singh, Additional Chief Standing Counsel as to what would be the import and the impact of the 2023 Act with relation to the power which already vested under the U.P. Act 5 of 1982, under Section 21 to the Board. Though this Court is oblivious of the fact that the 1982 Act contained a specific provisions, Section 32 whereby the provisions of Intermediate Education Act, 1921 and the Regulations made therein under were held to be in applicable in so far as they are in inconsistent with the provisions of the 1982 Act or the Rules of the Regulations framed therein under with regard to selection, appointment, promotion, dismissal, removal, termination or reduction in rank of a teacher and further as per Section 16 (G)(3) prior to existence of the 1982 Act power of approval with regard to removal, dismissal reduction in rank etc. vested with the District Inspector of Schools.

Since the said issue has cropped up and is before this Court today itself thus let the Additional Chief Standing Counsel obtain instructions as to who would be the final ultimate authority to grant approval/disapproval.

On this request, put up this case on 4.10.2023 as fresh."

8. Sri V.K. Singh, the learned Senior Counsel while assailing the order dated 30.06.2023 passed by the Committee of Management of the Institution in question and the order dated 02.08.2023 passed by the District Inspector of Schools, Saharanpur, third respondent has contended that both the orders cannot be sustained for a single moment, particularly, in view of the fact that the said orders have been passed in excess of the jurisdiction, particularly in view of the fact that at the time when the said orders were passed, there existed U.P. Act No.5 of 1982, which provided that under Section 21, prior approval is to be taken from the Board/ Commission in that regard before proceeding to pass any order for removal, dismissal, reduction in rank or any change in the emoluments to the detriment of the Teacher/ Officiating Principal. He thus submits that as the order dated 30.06.2023 is based upon the resolution of the Committee of Management and before passing the said order, prior approval has not been taken from the Board in question, which was a competent authority at that point of time, thus the impugned order is without authority.

9. It is the further submission of the learned counsel for the writ petitioner that now the Uttar Pradesh Education Service Selection Board Act, 2023 has been notified on 21.08.2023, whereby in view of the provisions contained under Section 31, the U.P. Act No.5 of 1982 stands repealed and thus as per the provisions contained under Section 16-G (3)(a), prior approval of District Inspector of Schools is mandatory. He seeks to further argue that now the provisions of Section 32 of the U.P. Act No.5 of 1982 would not come in the way and it is the District Inspector of Schools, who is competent to pass orders in that regard.

10. Sri K.P. Shukla, learned counsel, who appears for the Committee of Management on the other hand submits that the writ petitioner is facing serious allegations, which has been transformed into the shape of a charge sheet,which goes in the root of the matter regarding the eligibility of the matter. As according to him, the writ petitioner is not qualified and further he has further practiced fraud in procuring appointment. He further submits that in the wake of the seriousness of the charges sought to be leveled and the ongoing inquiry being initiated in pursuance of the service of the charge sheet, the writ petitioner cannot be allowed to function on the post in question and that is why the order has been passed in the special circumstances reverting the writ petitioner from the post of Officiating Principal to the post of Lecturer. He further submits that the writ petitioner is not entitled to any benefits.

11. Sri P.N. Ojha, who appears for the sixth respondent adopts the argument of the learned counsel for the Committee of Management and he submits that the sixth respondent has been rightly offered engagement as an Officiating Principal. According to him, even an inquiry is being conducted against the testimonials of the writ petitioner along with other charges regarding the fact that he is unbecoming of an Officiating Principal by the Director of Education, and thus, the writ petitioner is not entitled to any benefits.

12. Sri Ajeet Kumar Singh, learned Addl. Chief Standing Counsel on the other hand submits that in view of the seriousness of the charges, the writ petitioner is not entitled to the said benefits, which have been sought in writ petition.

13. I have heard the learned counsel for the parties and perused the records carefully.

14. The only question which in the present proceedings at this stage which falls for consideration before this Court is as to whether there has been strict compliance of the Statutory Rules or not before passing of the ultimate order dated 30.06.2023 and the communication of the District Inspector of Schools, Saharanpur dated 02.08.2023. As per U.P. Act No.5 of 1982, in particular Section 21, prior approval is to be needed before passing of any order placing the Teacher/ Officiating / Officiating Principal/ Ad hoc Principal to a detrimental condition. However, in the present case, the Court finds that pursuant to the a resolution of the Committee of Management, an order has been passed on 30.06.2023 by the Committee of Management directing the writ petitioner to hand over the charge to the sixth respondent. On a pointed query being raised to the learned counsel for the respondent as to whether prior approval was obtained or not in terms of Section 21 U.P. Act No.5 of 1982, which was prevalent at that point of time. To the said query, learned counsel for the respondents have invited the attention of this Court towards communication dated 02.08.2023 of the District Inspector of Schools, Saharanpur addressed to the Manager of the Committee of Management of the Institution in question. According to them, the said process itself is sufficient and suffice the purpose. After going through the records of the writ petition and the documents placed before me, as well as the Statutory provisions, this Court is of the opinion that no prior approval as envisaged under Section 21 of the U.P. Act No.5 of 1982 was obtained. Even in fact, the communication of the District Inspector of Schools dated 02.08.2023 cannot be said to be an act of prior approval.

15. Learned counsel for the writ petitioner at this stage has invited the attention of the Court towards judgment of this Court in Pramodini Agarwal Vs. Regional Inspectress of Girls Schools and others, reported in 1994(23) ALR 208, so as to contend that even in fact any act of reduction of the rank including emoluments even of Officiating or Ad hoc Teacher comes within the realm of Section 21 of U.P. Act No.5 of 1982 and thus the procedure so envisaged therein stands applicable.

16. Now, a question arises as to what would be the ultimate course of action to be adopted in the present facts and circumstances of the case with the enactment of Uttar Pradesh Education Service Selection Commission Act, 2023, U.P. Act No.5 of 2023 as notified on 21.08.2023, who would be the competent authority to pass an order granting prior approval / disapproval.

17. This Court in its order dated 27.09.2023 has noticed the said contingency and required the Addl. Chief Standing Counsel to obtain instructions in that regard.

18. Today, when the matter has been taken up, Sri A.K. Singh, learned Addl. Chief Standing Counsel on the basis of the instructions and the Statutory provisions has made a statement at Bar that now the District Inspector of Schools, Saharanpur will be the authority, who would grant prior approval in that regard.

19. A further pointed query was raised upon the learned counsel for the respondents as to whether the writ petitioner has been placed under suspension or not, to which a reply has been given by the learned counsel, who appears for the Committee of Management that only the writ petitioner has been stripped off from the charge of Officiating Principal and there is no resolution placing the writ petitioner under suspension.

20. Looking into the facts and circumstances of the case as well as the stand taken by the respondents, this Court is of the opinion that it is always open for the Committee of Management of the Institution in question to take recourse of the provisions of law for seeking necessary approval with regard to the resolution passed by it taking punitive action against the writ petitioner.

21. Accordingly, the writ petition is disposed off in the following terms: (a) the fourth respondent, Committee of Management, S.D. Kanya Inter College, Railway Colony Saharanpur, shall approach the District Inspector of Schools along with a comprehensive representation accompanied with self-attested copy of the writ petition by 10.10.2023; (b) on 10.10.2023, the writ petitioner shall be present before the District Inspector of Schools, Saharanpur; (c) on that date, the writ petitioner and the fourth respondent shall file their versions, which shall be exchanged between the parties; (d) a date shall be fixed by District Inspector of Schools, Saharanpur in the third week of October 2023 for hearing; (e) on that date, hearing be done; (f) orders be passed by 30.10.2023; (g) till the passing of fresh orders by the District Inspector of Schools, Saharanpur, the writ petitioner shall be entitled to take any policy decision in that regard.

22. Since the orders dated 30.06.2023 passed by the fourth respondent, Committee of Management, S.D. Kanya Inter College, Railway Colony Saharanpur and 02.08.2023 passed by the District Inspector of Schools, Saharanpur do not confirm to Section 21 of the U.P. Act no.5 of 1982 and are also not in conformity with Section 16-G (3)(a) of U.P. Intermediate Education Act, 1921, thus they shall remain unenforceable till the passing of the fresh orders by the District Inspector of Schools, Saharanpur.

23. It is further clarified that the District Inspector of Schools, Saharanpur while deciding the matter shall bear in mind the following fundamental and core issues: (i) the legality of the resolution of the Committee of Management dated 29.06.2023; (ii) the issue with regard to the entitlement of the writ petitioner to officiate as the Principal of the Institution in question after forming a prima facie opinion; (iii) the working of the writ petitioner as Officiating Principal in that regard; (d) any other ancillary or incidental issues connected with the same.

24. Needless to point out that the District Inspector of Schools, Saharanpur shall decide the issue issues without being influenced and obsessed by any of the observations made by this Court and pass an order with independent application of mind without being guided by the inquiry pending before the Director as stated by the parties before this Court.

25. With the aforesaid observations the writ petition stands disposed off.

26. Instructions filed today are kept on record and marked as Appendix 'A'.

Order Date :- 4.10.2023

N.S.Rathour