Dr. Sanjay Kumar Mishra vs State Of U.P. And 3 Others
2023 Latest Caselaw 25889 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:184875
 
Court No. - 35
 

 
Case :- WRIT - A No. - 15009 of 2023
 

 
Petitioner :- Dr. Sanjay Kumar Mishra
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Siddharth Khare,Sr. Advocate
 
Counsel for Respondent :- CSC,Pulak Ganguly,Shyam Dhar Gupta
 
Connected with
 
Case :- WRIT - A No. - 15932 of 2023
 

 
Petitioner :- C/M Shri Mata Prasad Mata Bhikh Inter College And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Shyam Dhar Gupta,Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.,Siddharth Khare,Sr. Advocate
 

 
Hon'ble Vikas Budhwar,J.

1. Since, common questions of law and facts are involved in Writ - A No. 15009 of 2023, (in short 'leading writ petition') as well as Writ - A No. 15932 of 2023, (in short 'connected writ petition'). Thus, with the consent of the parties, they are being decided by a composite order.

2. Heard, Sri Ashok Khare, learned Senior Counsel, assisted by Sri Jigar Khare, learned counsel for the writ petitioner Dr. Sanjay Kumar Mishra in the leading writ petition and the third respondent in the connected writ petitioner as well as Sri Santosh Kumar Mishra, learned Standing Counsel, who appears for the respondent nos.1 , 2 and 3 in the leading writ petition and respondent no.1 and 2 in the connected writ petition and Sri Prabhakar Awasthi, learned counsel along with Sri S.D. Gupta, learned counsel, who appears for the fourth respondent in the leading writ petition and for the writ petitioner in the connected writ petition (Committee of Management, Shri Mata Prasad Mata Bhikh Inter College, Ghantaghar, District - Mirzapur).

3. The case of the writ petitioner is that Sri Mata Prasad Mata Bhikh Inter College, Ghantaghar, Mirzapur is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982, and U.P. Act No.24 of 1971, stands applicable.

4. As per the writ petitioner, in the leading writ petition (in short delinquent Officiating Principal), one Sri Shyam Narayan Tiwari, who was working as the Principal in the institution in question superannuated on 30.06.2014, thereby causing a substantive vacancy on the post of Principal in question to the institution. The writ petitioner claims to be the senior most lecturer and he was appointed as officiating Principal/adhoc Principal and he assumed the charge on 01.07.2014.

5. In paragraph no.7 of the leading writ petition, it is asserted that his signatures was attested as officiating Principal/adhoc Principal by the District Inspector of Schools, Mirzapur and subsequently an order was passed on 17.11.2014 by the District Inspector of Schools, Mirzapur sanctioning the pay scale applicable to the Principal with effect from 01.09.2014.

6. According to the writ petitioner, in the leading writ petition, an advertisement was published being Advertisement No.3 of 2013, pursuant thereto selections were conducted and on 13.11.2022, one Arun Kumar Shukla was recommended for appointment as Principal. The writ petitioner challenged the same in Writ - A No. 19537 of 2022 (Dr. Sanjay Kumar Sharma vs. State of U.P. and Others), in which an interim order was accorded on 15.12.2022, as modified on 23.12.2022.

7. In paragraph no.14 of the writ petition, it is further asserted that U.P. Secondary Education Services Selection Board was occasioned with a situation, wherein pursuant to the order passed by the Lucknow Bench of this Court, on 01.02.2023, passed in Writ - A No. 8151 of 2022, the entire selection proceedings pursuant to the Advertisement No.3 of 2013 was set aside.

8. According to the writ petitioner, on 19.07.2023, the writ petitioner was placed under suspension. On 22.08.2023, the District Inspector of Schools, Mirzapur proceeded to pass an order, whereby he revoked the suspension order. Thereafter, on 25.08.2023, the Committee of Management of the institution in question proceeded to pass an order directing the reversion of the writ petitioner on the post of Lecturer from officiating Principal. Dr. Sanjay Kumar Mishra, thereafter faced with these circumstances preferred leading writ petition seeking following reliefs :-

"(i) a writ, order or direction in the nature of certiorari quashing the order dated 25.08.2023 issued by the Manager, Shree Mata Prasad Mata Bhikh Inter College, Ghantaghar, Mirzapur (Annexure 7 to the writ petition).

(ii) a writ, order or direction of a suitable nature restraining the respondent from interfering in the functioning of the petitioner as the officiating/adhoc principal of Shree Mata Prasad Mata Bhikh Inter College, Ghantaghar, Mirzapur and to pay the petitioner his full monthly salary on the said post, regularly, every month.

(iii) a writ, order or direction in the nature of which this Hon'ble Court may deem fit and proper under the circumstances of the case.

(iv) award cost to the humble petitioner throughout of the present writ petition."

9. The said writ petition came up for consideration before this Court on 06.09.2023, wherein the following orders were passed :-

"The contention of the learned Senior Counsel appearing for the writ petitioner is that though the writ petitioner was placed under suspension on 19.07.2023 but the same came to be disapproved by the District Inspector of Schools, Mirzapur on 22.08.2023, however, now the management of the institution in question has proceeded to pass an order dated 25.08.2023 whereby the writ petitioner has been lowered in the rank and has been directed to work on the post of Lecturer despite the fact that he was officiating prior to the passing of suspension order.

Sri S.D. Gupta, learned counsel who appears for the fourth respondent submits that he may be given some time to obtain full instructions.

Put up this case as fresh on 11.09.2023 at 12:00 Noon by which time the learned Standing Counsel and the counsel appearing for the fourth respondent shall obtain instructions."

10. Learned Standing Counsel has produced before this Court the instructions dated 13.09.2023 under the signature of the District Inspector of Schools, Mirzapur.

11. A counter affidavit has been filed on behalf of the fourth respondent, Committee of Management of the institution in question sworn by the Manager of the institution in question, dated 21.09.2023, in which a document has been appended at page no.45 being C.A.5, reference whereof has been given in paragraph no. 4-J, wherein a communication has been made by the Manager of the institution in question to the District Inspector of Schools, Mirzapur on 08.09.2023 that in the wake of the pendency of leading writ petition before this Court and calling for the instructions the order dated 25.08.2023 is being cancelled. However, the writ petitioner in the leading writ petition, Dr. Sanjay Kumar Mishra is being restrained to function in the post in question.

12. Questioning the order dated 22.08.2023, passed by the District Inspector of Schools, Mirzapur revoking the suspension order dated 19.07.2023, the Committee of Management of the institution in question preferred the connected writ petition with a further direction not to compel it to accord joining to Dr. Sanjay Kumar Mishra.

13. The leading writ petition has been listed at Serial No.13 and the connected writ petition is listed at Serial No.22. However, the counsel for the parties in both the writ petition have made a statement at Bar that both the writ petitions be connected together and be decided by a consolidated order as they do not propose to file further affidavits in this regard.

14. With the consent of the parties, the writ petition have been taken together and are being decided by a common order.

15. Sri Ashok Khare, learned Senior Counsel for the writ petitioner submits that the order dated 25.08.2023 subject matter of challenge in the leading writ petition proceeds to revert the writ petitioner on the post of Lecturer from the post of officiating Principal, which cannot be done in view of the law laid in series of judgment by this Court.

16. Sri Prabhakar Awasthi along with Sri S.D. Gupta, learned counsel, who appear for the Committee of Management in question have invited the attention of the Court towards the counter affidavit filed on behalf of the fourth respondent in Writ Petition No. 15009 of 2023 (leading writ petition), C.A.-5, page no.45, reference whereof has been made in paragraph no.4-J, so as to contend that the order dated 25.08.2023 has been cancelled by the Committee of Management of the institution in question on 08.09.2023.

17. Sri Ashok Khare, learned Senior Counsel for the writ petitioner however submits that though the order dated 25.08.2023 reverting him from the post of Officiating Principal to Lecturer has been cancelled but an illegal condition has been imposed in the order dated 08.09.2023, whereby Dr. Sanjay Kumar Mishra, has been restrained to function in the institution in question.

18. To such a submission, Sri Prabhakar Awasthi along with Sri S.D. Gupta have made a statement at Bar that the Manager of the institution in question, Sri Atin Kumar, son of Sri Lavkush Kumar is present in the Court and according to the instructions so provided to them, the writ petitioner, Dr. Sanjay Kumar Mishra would be allowed to function as officiating Principal in question and the order dated 08.09.2023, in so far as it restrains the writ petitioner, Dr. Sanjay Kumar Mishra to function as the officiating Principal would not be enforceable or effective.

19. Sri Ashok Khare, learned Senior Counsel submits that in view of the stand taken by the counsel for the Committee of Management of the institution in question, Writ - A No. 15009 of 2023 (Dr. Sanjay Kumar Mishra vs. State of U.P. and others) (leading writ petition) has rendered infructous.

20. Since, a stand has been taken by the parties that the writ petitioner, Dr. Sanjay Kumar Mishra, shall enjoy the benefits of an officiating Principal, thus this Court is not addressing upon the merits of the matter.

21. Now, comes the legality and the validity of the order dated 22.08.2023, passed by the District Inspector of Schools, which has been challenged in the connected writ petition preferred by the Committee of Management of the institution in question.

22. Sri Prabhakar Awasthi along with Sri S.D. Gupta, have sought to argue that the order dated 22.08.2023, passed by the District Inspector of Schools, Mirzapur cannot be sustained for a single moment, particularly in view of the fact that the same is an ex-parte order and it is cryptic and does not consider the vital issues, which are necessary to be considered, while arriving at a decision, as to whether the suspension is to continue or not. He submits that the order in question revokes the suspension order, which is thoroughly impermissible.

23. Further submission on behalf of the learned counsel for the writ petitioner in the connected writ petition is that though Dr. Sanjay Kumar Mishra was placed under suspension on 19.07.2023, pursuant to the resolution of the Committee of Management and the papers stood transmitted to the District Inspector of Schools, but it was incumbent upon the District Inspector of School to have accorded satisfaction on the issue and before proceeding to pass an order hear the writ petitioner, Committee of Management, as the issue assumes significance, particularly in view of the fact that on 07.08.2023, a charge sheet was also served upon Dr. Sanjay Kumar Mishra containing serious and grave charges. He thus submits that had the Committee of Management being put to notice, it would have amply demonstrated that there was no occasion to revoke the suspension in that regard.

24. Sri Ashok Khare, learned Senior Counsel, for the writ petitioner, Dr. Sanjay Kumar Mishra, submits that in view of the Regulation 39 of Chapter III of the U.P. Intermediate Education Act, 1921, there are certain formalities which have to be fulfilled by the Committee of Management, while seeking approval for suspension, which provides for submission of relevant documents and in the present case in hand barring submission of the resolution for placing the writ petitioner, Dr. Sanjay Kumar Mishra under suspension, no other documents was submitted. He seeks to rely upon the document in the case of Committee of Management and Others vs. District Inspector of Schools, Deoria and Others, reported in (1994) 23 ALR 334.

25. The submission is that once the Committee of Management did not submit the relevant documents, which were needed for taking decision either to approve or to disapprove the suspension, then the writ petitioner cannot attribute any fault upon the District Inspector of Schools.

26. Sri Santosh Kumar Mishra, learned Standing Counsel, who appears for the official State respondents submits that though the order dated 22.08.2023, passed by the District Inspector of Schools is not happily worded, but the facts and the circumstances, warranted the same, as the Committee of Management did not submit the complete documents before it. He further submits that since there is no prohibition or any embargo that the District Inspector of Schools cannot at this stage proceed to examine the issues relating to approval / disapproval of the suspension of a Principal /teacher or an employee, thus according to him, the matter needs re-consideration and a fresh look.

27. At this stage, Sri Prabhakar Awasthi, learned counsel, who appears for the Committee of Management of the institution in question has made a statement at Bar that now the entire papers including the resolution proposing to suspend Dr. Sanjay Kumar Mishra, charge-sheet and the proceeding of inquiry had been transmitted to the District Inspector of Schools, Mirzapur, thus according to him, the matter be remitted back for decision afresh looking into each and every aspect of the matter.

28. Sri Ashok Khare, learned Senior Counsel, assisted by Sri Jigar Khare, who appears for Dr. Sanjay Kumar Mishra submits that since there is no embargo under law for not conducting the said exercise as noticed above, thus according to him, the matter be remitted back to the Disrtrict Inspect or of Schools, Mirzapur to accord fresh consideration on the basis of the materials available on record after hearing the Committee of Management and Dr. Sanjay Kumar Mishra with a rider that Dr. Sanjay Kumar Mishra be allowed to perform the duties and be made admissible to the benefits of the officiating Principal till passing of fresh order.

29. Sri Prabhakar Awasthi, learned counsel, at this stage submits that as per the instructions received by him from Sri Atin Kumar, who is the Manager of the Committee of Management of the institution in question, the Committee of Management has no objection to the officiation of the Dr. Sanjay Kumar Mishra in the institution in question. However, in the wake of the fact that there are serious allegations of financial misappropriation, thus certain safeguards be provided that there should not be any irregularity at any cost, so as to tarnish the image of the institution and to extend any loss to the institution as well as the students who are being imparted education in this regard.

30. To such a submission, Sri Ashok Khare, learned Senior Counsel, assisted by Sri Jigar Khare, who appears for Dr. Sanjay Kumar Mishra submits that the writ petitioner, Dr. Sanjay Kumar Mishra had never been commiting any such type of irregularities as sought to be alleged, however in order to show his bonafides, he would not take any policy decision in the matter till afresh decision is taken by the District Inspector of Schools, Mirzapur.

31. Normally, in ordinary circumstances this Court could have undertaken the task of deciding the case on merits. However, as rightly as stated by Sri Santosh Kumar Mishra, learned Standing Counsel, who appears for the official State-respondents, Sri Ashok Khare, learned Senior Counsel, assisted by Sri Jigar Khare for Dr. Sanjay Kumar Mishra and Sri Prabhakar Awasthi along with Sri S.D. Gupta, learned counsel for the Committee of Management of the institution in question that hearing was not accorded to the affected parties, so this Court is of the opinion that the matter needs a re-look by the District Inspector of Schools, Mirzapur.

32. Accordingly, the writ petition is being decided in the following terms :-

(a) The order dated 22.08.2023, passed by the District Inspector of Schools, Mirzapur is set aside;

(b) In the wake of the fact that as per the Committee of Management of the institution in question, the order dated 25.08.2023, passed by the Committee of Management of the institution in question impuged in the leading writ petition has been withdrawn and a statement has been made by Sri Prabhakar Awasthi and Sri S.D. Gupta, who appears for the Committee of Management that the writ petitioner, Dr. Sanjay Kumar Mishra shall be allowed to officiate as a Principal of the institution in question, till the matter is decided afresh, the writ petitioner, Dr. Sanjay Kumar Mishra shall be allowed to function as Officiating Principal of the instituion in question till the passing of the fresh orders;

(c) Dr. Sanjay Kumar Mishra shall though perform the duties of the Principal of the institution in question and perform normal function and will be entitled to the benefits and the status of the Officiating Principal of the institution but he shall not take policy decision;

(d) Post remand, the District Inspector of Schools shall fix a date on 10.10.2023 for hearing of the matter;

(e) On that date, the writ petitioner, Dr. Sanjay Kumar Mishra and the Manager of the Committee of Management of the institution in question shall appear along with their written versions;

(f) On 10.10.2023 itself the versions shall be exchanged between the parties;

(g) Hearing be done by 16.10.2023;

(h) Orders be passed by 27.10.2023.

33. Since, the writ petitions are being decided on the ground that there had been violation of principles of natural justice and the order does not contain reasons in coming to the conclusion, thus passing of this order may not be construed to be an expression that this Court has adjudicated on the merits of the matter. However, District Inspector of Schools, Mirzapur shall decide the matter strictly in accordance with law after hearing the parties without being obsessed or influenced by any of the observations made herein-above.

34. With the aforesaid observations, the writ petition stands decided.

Order Date :- 22.9.2023 / S Rawat