Krishan Pal vs State Of U.P. And 2 Others
2023 Latest Caselaw 25892 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:184394
 
Court No. - 35
 

 
Case :- WRIT - A No. - 14651 of 2023
 

 
Petitioner :- Krishan Pal
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Dharmendra Singh
 
Counsel for Respondent :- CSC
 

 
Hon'ble Vikas Budhwar,J.

In Re :- Impleadment Application No. Nil of 2023

Impleadment application filed today is taken on record.

By means of the present impleadment application, Sri Avdhesh Kumar, son of Sri Om Prakash Sharma, Principal M.M.H.V. Inter College, Ghaziabad, seeks to be implead as a party in the present petition, as respondent no.4. He claims that he was the regularly selected Principal of the institution in question, who is presently under suspension.

Sri Shailendra Singh, learned Senior Counsel, assisted by Sri Dharmendra Singh, who appears for the writ petitioner has no objection to the impleadment application.

The impleadment application is allowed.

Let Sri Avdhesh Kumar, son of Shri Om Prakash Sharma, Principal (suspended), M.M.H.V. Inter College, Ghaziabad be impleaded, as the fourth respondent.

Since, the impleadment application has been filed directly in the Court after serving an advance copy upon the learned counsel for the writ petitioner, thus the office shall allot a regular number.

Order Date :- 22.9.2023

S Rawat

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Case :- WRIT - A No. - 14651 of 2023

Petitioner :- Krishan Pal

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Dharmendra Singh

Counsel for Respondent :- CSC

Hon'ble Vikas Budhwar,J.

On the oral request of Sri Shailendra Singh, learned Senior Counsel, assisted by Sri Dharmendra Singh, learned counsel for the writ petitioner, they are permitted to implead, Director of Education, State of U.P. Lucknow, as the fifth respondent in the array of parties during the course of the day.

In view of the order, which is being proposed to be passed, notices are not being issued to the third respondent.

The case of the writ petitioner is that the third respondent, Committee of Management, M.M.H.V. Inter College, Ghaziabad, is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921, the provisions of U.P. Act No.5 of 1982 and provisions U.P. Act No. 24 of 1971, stands applicable.

As per the writ petitioner, he was initially appointed on the post of Lecturer on 13.11.1992 and the writ petitioner's services had been regularized on 26.06.2000. According to the writ petitioner, the regularly selected Principal, namely, Sri Avdhesh Kumar, respondent no.4 owing to certain allegations was placed under supsension by the Committee of Management on 19.10.2022 that led to filing of Writ Petition No. 17807 of 2022 (Avadhesh Kumar vs. State of U.P.), in which the order approving the suspension of the fourth respondent was set aside and the matter was remitted back to the District Inspector of Schools to pass a fresh order and in turn, an order was passed on 06th February, 2023 approving the suspension of the fourth respondent dated 19.10.2022.

In paragraph nos.14 and 15 of the writ petition, it has been further asserted by the writ petitioner that post approval of the suspension order, a charge-sheet was served upon the fourth respondent and an inquiry officer was appointed and thereafter post completion of the inquiry proceedings, a resolution is stated to have been passed by the third respondent for dispensation of the services of the fourth respondent, which is pending consideration before the U.P. Secondary Education Services Selection Board since 15th March, 2023.

According to the writ petitioner, though his name finds place at Serial No.4 in the seniority list of the Lecturers and the incumbents from Serial No.1 to 3 had either shown their inability or they stood retired, thus the writ petitioner being placed at Serial No.4 was made to officiate as the Principal of the third respondent, since 29.10.2022 and pursuant to the resolution of the Committee of Management and approval whereof has also been accorded by the District Inspector of Schools, Ghaziabad.

According to the writ petitioner, even in fact for the purposes of payment of salary on the post of officiating Principal, documents were also forwarded by the Committee of Management of the third respondent institution before the second respondent, District Inspector of Schools, Ghaziabad on 03.08.2023. However, now an order has been passed on 04.08.2023, passed by the District Inspector of Schools, Ghaziabad, second respondent, whereby the payment of salary to the writ petitioner as an officiating Principal has been negated on the ground that the proper procedure as contemplated under Section - 18 of the U.P. Secondary Education Services Selection Board Act, 1982, has not been followed in that regard.

Questioning the order dated 04.08.2023, passed by the second respondent, District Inspector of Schools, Ghaziabad, the present writ petition has been filed.

Sri Shailendra, learned Senior Counsel appearing on behalf of the writ petitioner has sought to argue that the order dated 04.08.2023, passed by the second respondent, District Inspector of Schools, Ghaziabad proceeds on misconception of facts and law, particularly in view of the fact that the ground on the basis whereof the claim of the writ petitioner has been non suited is totally non existent, as according to him post approval of the suspension of the fourth respondent as the Principal of the institution in question, the writ petitioner was found to be suitable and eligible and as per the seniority list, since none of the other lecturers staked their claim for being permitted to be officiated, the writ petitioner was allowed to officiate. He further submits that the ground taken in the order impugned that there has been no compliance of provisions of Section 18 of the U.P. Act No.5 of 1982, thus the salary cannot be accorded is not a tenable ground to dislodge the claim of the writ petitioner, particularly in view of the fact that there already exist a order attesting the signature of the writ petitioner, as an officiating Principal which contains a condition that the entitlement of the writ petitioner is till the joining of the fourth respondent in the institution in question.

Sri Shailendra, learned Senior Counsel further seeks to rely upon the decision in the case of Asha Rai vs State of U.P. and 3 others, reported in 2021 (1) UPLBEC 501.

Sri Shailendra, learned Senior Counsel for the writ petitioner also submits that the proposal was sent by the Committee of Management on 03.08.2023, however decision has been taken on the next day on 04.08.2023 that to without either putting the writ petitioner or the third respondent-institution to notice.

Countering the submission of the learned Senior Counsel, who appears for the writ petitioner, Sri J.N. Maurya, learned Chief Standing Counsel, who appears for respondent nos.1 and 2 submits that since there has been no compliance of the provisions contained under Section - 18 of the U.P. Secondary Education Services Selection Board, Act, 1982, as amended on 03.12.2000, thus rightly the writ petitioner has not been permitted to draw the salary of an officiating Principal. He further submits that once a statutory provision is already existing in the statute book, then it has to be complied with. He, however could not dispute the fact that the writ petitioner was not heard before passing of the order dated 04.08.2023, which has been impugned in the writ petition.

Sri Bheem Singh, learned Counsel, who appears for the respondent no.4 has adopted the argument of Sri J.N. Maurya, learned Chief Standing Counsel, according to him, though the fourth respondent is presently under suspension, however there happens to be a litigation pending before this Court in Special Appeal No.217 of 2023, Committee of Management, M.M.H.V. Inter College vs. Avdesh Kumar and 4 Others, wherein by virtue of an interim order dated 08.05.2023, the fourth respondent has been allowed to be paid subsistance allowance, while treating him to be an Officiating Principal. He thus submits that in case the writ petitioner is made entitled to the payment of salary and other benefits treating him to be the officiating / adhoc Principal, then against one post, two incumbents have to be paid benefits from the State Exchequer. Further submission on behalf of the learned counsel, who appears or the fourth respondent is that the order approving the officiating / adhoc appointment of the writ petitioner itself contained a condition that the payment of benefits will be subject to the pendency of the litigation preferred by the fourth respondent, thus in absence of any challenge made to the said condition, the writ petitioner is not entitled to any benefits.

I have heard the learned counsel for the parties and perused the record.

Undisputedly, the third respondent institution in question is governed under the provisions of U.P. Intermediate Education Act, 1921, the provisions of U.P. Act No.5 of 1982 and the provisions of U.P. Act No. 24 of 1971, stands applicable. It is also not in dispute that the fourth respondent was placed under suspension on 29.10.2022 and the writ petitioner was allowed to officiate on the post of Officiating Principal and the same was approved by the District Inspector of Schools.

The bone of contention between the parties is with regard to the payment of the salary and the other benefits, which the writ petitioner claims to enjoy on the post of officiating Principal. In the order impugned dated 04.08.2023, a ground has been taken that since there there was no compliance of the provisions of Section - 18 of the U.P. Act No.5 of 1982 as amended from time to time, thus the writ petitioner cannot be granted the benefits. Learned counsel for the writ petitioner seeks to rely upon the judgment in the case of Asha Rai (supra), so as to buttress his submission that non compliance of the provisions of Section - 18 of the U.P. Act No.5 of 1921 would not be fatal and it would not denude the writ petitioner for grant of the benefits referable to of Officiating Principal. A pointed query was raised to Sri J.N. Maurya, learned Additional Chief Standing Counsel, who appears for respondent no.1 and 2, as to whether any opportunity of hearing was accorded to the writ petitioner or the Committee of Management, third respondent before passing of the order. To such a submission, Sri J.N. Maurya submits that the order in question does not recite the same as he further submits that on 03.08.2023, the Committee of Management of the institution in question had forwarded papers for payment of salary to the writ petitioner and on the next date i.e. 04.08.2023, the order has been passed. He further submits that since the writ petitioner and the Committee of Management have not been heard, thus according to him the matter needs re-determination after giving fresh look taking into account each and every aspect of the matter. He further submits that the parties may appear before the fifth respondent, who shall address to the claim of the writ petitioner in that regard.

To such a submission, Sri Shailendra, learned Senior Counsel, who appears for the writ petitioner and Sri Bheem Singh, learned counsel for the respondent no.4 have no objection.

Normally, in ordinary circumstances, this Court would have undertaken the task of addressing on the merits of the matter, however, since a specific stand has been taken by the learned Chief Standing Counsel as well as the learned counsel for the writ petitioner that the matter be remitted back to the fifth respondent for deciding the matter afresh, thus this Court is abstaining from addressing the case on merit.

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

(a) The order dated 04.08.2023, passed by the second respondent, District Inspector of Schools, Ghaziabad is set aside;

(b) The matter stands remitted back to the fifth respondent, who shall address to the issue, while fixing a specific date in the third week of October, 2023 and on that date, the writ petitioner Committee of Management of the institution in question and the incumbent, whose impleadment application is allowed may appear and place their versions before it;

(c) The orders be passed after two weeks thereafter;

(d) The fifth respondent shall decide the issues strictly in accordance with, as per the statutes as invoked, bearing in mind the following fundamental and the core issues :-

(i) The issue with regard to the approval of the appointment of the writ petitioner, Officiating Principal;

(ii) The issue with regard to the applicability of the judgment in the case of Asha Rai (supra);

(iii) The import and the impact of the statutory provisions, as governing the field;

(iv) Import and the impact of pendency of Special Appeal No.217 of 2023, Committee of Management, M.M.H.V. Inter College vs. Avdesh Kumar and 4 others;

(v) Any other ancillary and incidental issue in that regard.

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

Order Date :- 22.9.2023

S Rawat