WPSB/62/2021
2021 Latest Caselaw 401 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
                             AND
         THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


              WRIT PETITION (S/B) No. 62 OF 2021

                      23RD FEBRUARY, 2021

 Between:

 Dinesh Dobriyal.                                           ...Petitioner

 and


 Secretary Department of Education State of Uttarakhand,
 Dehradun and others.
                                          ...Respondents

Counsel for the petitioners : Mr. Navnish Negi

Counsel for the respondents : Mr. S.S. Chaudhary, learned Brief Holder for the State of Uttarakhand.

The Court made the following:

JUDGMENT : (per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)

The petitioner has challenged the legality of

order dated 12.11.2020, passed by the Chief Education

Officer, Dehradun, the respondent no. 3, whereby the

Chief Education Officer has directed the Management of

the Sri Guru Ram Rai Inter College to examine as to who

is the senior most lecturer who would be eligible to be

appointed on the post of Principal of the college. The

petitioner has also challenged the advertisement issued by

the Management, dated 05.12.2020, whereby the

Management has invited application for the post of

Principal of the said college.

2. In a nutshell, the facts of the case that on

27.11.1990, the petitioner he was appointed as Assistant

Lecturer, L.T. Grade under the General Category. He has

been discharging his duties to the satisfaction of the

management for the last twenty-six years. After having

completed twenty-two years of satisfactory service as L.T.

Grade Teacher, on 08.10.2013, the petitioner was

promoted on the promotional pay scale. Subsequently, he

was also promoted on the post of Lecturer Hindi vide order

dated 05.04.2016. Due to the retirement of Mr. Sashi

Prasahd Kukreti on 31.01.2020, the petitioner was

appointed as the Principal on ad-hoc basis. Moreover,

according to the petitioner, the Management

recommended his case for appointment as a downgrade

Principal to the respondent No. 3. However, by the

impugned order dated 12.11.2020, the Management's

recommendation was rejected. Instead, the Management

was directed to examine as to who is the senior most

lecturer available in the college for the purpose of

appointing the said person as the downgrade Principal.

Furthermore, according to the petitioner, Mr. Virendra

Kumar Petwal happens to be the senior most Lecturer.

However, due to certain adverse entries which have been

recorded against Mr. Virendra Kumar Petwal, the

Management does not consider him to be eligible and

suitable for the post of Principal. Lastly, after the order

dated 12.11.2020 was passed, instead of continuing the

petitioner as downgrade Principal, on 05.12.2020, the

Management has issued an advertisement inviting

applications from eligible candidates for the post of

Principal of the college. Hence the present writ petition

before this Court.

3. Mr. Navnish Negi, the learned counsel for the

petitioner, has raised the following conditions before this

Court:-

Firstly, that the petitioner happens to be the senior

most Lecturer who is eligible for the post of Principal;

secondly, according to Regulation 2(1) of the Uttarakhand

Vidhalayi Shiksha Parishad (Sansodhan) Viniyam, 2017

('the Regulation' for short), the senior most lecturer, who

is found to be eligible and who has completed a minimum

service of 22 years, is entitled to be appointed as a

downgrade Principal. According to the learned counsel for

the petitioner, although Mr. Virendra Kumar Petwal may

be the senior most lecturer, but he is found not to be

eligible for the post of Principal. Since the petitioner has

already completed his service of twenty-six years, that too

satisfactorily, it is the petitioner who is entitled to be

appointed as the downgrade Principal of the college for a

period of five years. Therefore, according to learned

counsel for the petitioner, the respondent no. 3 was not

justified in rejecting the recommendation made by the

Management, and in directing the Management to examine

as to who is the senior most Lecturer in the college.

Moreover, the Management is unjustified in publishing the

advertisement inviting applications from eligible

candidates to the post of Principal. Therefore, both the

impugned order, and the advertisement deserve to be set

aside by this Court.

4. Heard the learned counsel for the petitioner, and

perused the impugned order, and the advertisement.

5. The position being taken by the learned counsel

for the petitioner is clearly unjustified. For, even according

to the petitioner Mr. Virendra Kumar Petwal happens to be

senior most lecturer in the college. Therefore, the

petitioner is not justified in claiming that he is the senior

most lecturer available in the college.

6. Regulation 2(1) of the Regulations is as under:

"2 (1) laLFkk ds iz/kku dk in] ;Fkk fLFkfr /kkjk&37 dh mi/kkjk (1) ds v/khu ;k /kkjk&38 dh mi/kkjk (1) ds v/khu xfBr p;u

lfefr dks funsZ"k djus ds Ik"pkr~ [k.M (2) esa fd;s x;s micU/kksa ds flok; lh/kh HkrhZ }kjk fd;k tk;sxk A

ijUrq ;g fd dksbZ ,slh laLFkk dh n"kk es tks /kkjk&38 esa fufnZ'V laLFkk u gks esa (gkbZLdwy Lrj dh laLFkk gsrq ) iz/kkuk?;kid ds in ij inksUufr gsrq lEcfU/kr fo|ky; ds fu;fer] ofj'Bre~ ,ao ,sls lgk;d v/;kid] tks iz/kkuk/;id in ij inksUufr gsrq fofu;e ds v/;k;&nks ifjf"k'V 'd' esa mfYyf[kr vgZrk j[krs gks vkSj tc og lgk;d v/;kid ds :i ess lk/kkj.k osrueku ls 10 o'kZ Ik"pkr~ p;u osrueku izkIr djsa] rFkk mudk dk;Z ,ao O;ogkj larks'ktud gks rks mUgsa iz/kkuk/;kid in dk Mkmu xszM osrueku nsrs gq, Mkmu xzsM iz/kkuk/;kid in ij inksUufr nh tk;sxh rFkk iz/kkuk/;kid in ij 05 o'kZ Mkmu xzsM esa dk;Z djus ds mijkUr iz/kkuk/;kid dk blh izdkj b.Vj Lrj ds iz/kkukpk;Z ds in ij inksUufr gsrq lEcfU/kr fo|ky; ds fu;fer] ofj'Bre~ ,oa ,sls izoDrk] tks iz/kkukpk;Z in ij inksUufr gsrq fofu;e ds v/;k;&nks ifjf"k'V 'd' esa mfYyf[kr vgZrk j[krs gksa vkSj tc os lk/kkj.k osrueku esa izoDrk ds :Ik esa dk;Z djrs gq,s 10 o'kZ i"pkr p;u osrueku izkIr djs rFkk ;fn mudk dk;Z ,ao O;ogkj lUrks'ktud gks rks mUgsa iz/kkukpk;Z ds in dk Mkmu xzsM osrueku nsrs gq, Mkmu xzM s iz/kkukpk;Z in ij inksUufr nh tk;sxh rFkk mDr in ij 05 o'kZ Mkmu xzsM esa dk;Z djus ds mijkUr iz/kkukpk;Z dk osrueku vuqeU; gksxkA

ijUrq ;g fd l0v0 (,y0Vh0) osrudze esa U;wure 22 o'kZ dh lsok iw.kZ djus ij izksUur osrueku izkIr gksus ds mijkUr l0v0 ls izoDRkk ds in ij inksUufr gksus dh n"kk esa ,sls izoDrk dks laLFkk esa ofj'Bre~ izoDrk gksus dh n"kk esa rFkk ;fn mudk dk;Z ,ao O;ogkj lUrks'ktud gks rks mUgsa iz/kkukpk;Z ds in dk Mkmu xzsM osrueku nsrs gq, Mkmu xzsM iz/kkukpk;Z in ij inksUufr nh tk;sxh RkFkk mDr in ij 05 o'kZ Mkmu xzsM esa dk;Z djus ds mijkUr iz/kkukpk;Z dk osrueku vuqeU; gksxkA"

7. A bare perusal of the Regulation clearly reveals

that according to Regulation 2(1), the foremost duty of the

Management is to ensure that the regular appointment is

made to the post of the Principal. The Regulation does

contain two different provisos. But the requirement of the

proviso is that "the senior most lecturer" is eligible if his

services are found to be satisfactory and he should be

appointed as the downgrade Principal for a period of five

years.

8. However, the issue is as to what steps need to

be taken by the Management when the senior most

lecturer is not found to be suitable for the post of

Principal?

9. Naturally the answer to this issue is given by the

main provision contained in Regulation 2(1). Therefore, if

the senior most lecturer is found to be neither eligible, nor

suitable for the post of Principal, the Management is

legally bound to take recourse to the main provision of

law, and to initiate regular recruitment for the post of

Principal. It is not the requirement of the law that the

Management should draw up a comparative merit list of

the senior lecturers and then appoint the lecturer who is

found to be eligible and suitable for the post of downgrade

Principal. Hence, the contention being raised by the

learned counsel for the petitioner that since Mr. Virendra

Kumar Petwal is ineligible and unsuitable for the post, it is

the petitioner who must be appointed as the downgrade

Principal, the said contention is belied by the provisions of

law itself.

10. Since Mr. Virendra Kumar Petwal was the senior

most lecturer, and not the petitioner, the respondent No. 3

was justified in directing the Management to examine as

to who is the senior most lecturer. Moreover, since the

Management was of the opinion that Mr. Virendra Kumar

Petwal is neither eligible, nor suitable for the post of

Principal as there are allegedly certain adverse entries in

his A.C.Rs, it was well justified in publishing the

advertisement inviting applications from eligible

candidates. Hence, there is no illegality either in the

impugned order, or in the impugned advertisement.

11. For the reasons stated above, this Court does

not find any merit in the writ petition. It is, hereby,

dismissed. No order as to cost.

_____________________________ RAGHVENDRA SINGH CHAUHAN, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 23rd February, 2021 JKJ/Neha