Uttarakhand High Court
WPSB/392/2020 on 24 June, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:5327-DB
Office Notes,
reports,
orders or
proceedings
SL.
Date or directions COURT'S OR JUDGE'S ORDERS
No.
and
Registrar's
order with
Signatures
WPSB 392/2020
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Subhash Upadhyay, J.
Mr. B.D. Upadhyaya, Senior
Advocate, for the petitioner.
Mr. P.S. Bisht, Additional CSC, for
the State.
Mr. Navnish Negi, Advocate, for
the respondent no. 4.
(2) Petitioner has challenged
Government Order dated 28.10.2020, issued
by Secretary, Secondary Education, which
provides that in the absence of a teacher,
eligible for promotion as Principal on the
date of occurrence of the vacancy, the
vacancy on the post of Principal should be
advertised for direct recruitment.
(3) Mr. P.S. Bisht, learned State
Counsel, has drawn attention of this Court to
a judgment dated 23.2.2021, rendered by a
coordinate Bench in Writ Petition (S/B) No.
62 of 2021. Para 9 of the said judgment is
reproduced below:
"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
2025:UHC:5327-DB
contention is belied by the provisions of law itself."
(4) Learned State Counsel has also
drawn attention to a judgment dated
2.7.2019, rendered by a coordinate Bench in
Writ Petition (S/B) No. 270 of 2019. Para 11,
12 & 13 of the said judgment are reproduced
below:
"11. Section 36 of the Act prescribes the
procedure for selection of teachers and heads of
institutions. Section 36(2) stipulates that every post
of Head of the Institution or teacher of an institution
shall, except to the extent prescribed for being filled
up by promotion, be filled up by direct recruitment
after intimation of the vacancy to the District
Education Officer, and obtaining approval of the
District Education Officer for advertising, and
advertisement of, the vacancy containing such
particulars as may be prescribed, in at least two
daily newspapers having wide circulation in the
State. Section 39(1) of the Act requires every
person employed in a recognized institution to be
governed by such conditions of service as may be
prescribed by Regulations, and Section 39(2) of the
Act stipulates that, without prejudice to the
generality of the powers conferred by sub-Section
(1), the Regulations may provide for (a) to (e)
thereunder.
12. Section 36(2) requires every post of
the Head of the Institution to be filled up by direct
recruitment, except to the extent prescribed. The
word "prescribed" has been defined under Section
2(m) of the Act to mean prescribed by Regulations
under the Act. Consequently, Section 36(2) requires
the post of the Head of the Institution to be filled up
by direct recruitment save to the extent prescribed
by Regulations. The 2018 amendment to the 2009
Regulations prescribes the manner in which the post
of the Head of the Institution is required to be filled
up by promotion. To the extent that the 2018
Regulations so provides otherwise, Section 36(2) of
the Act does not require the post of the Head of the
Institution to be filled up by way of direct
recruitment.
13. While the learned Single Judge was
justified in holding that a Regulation cannot fall foul
of the Parent Act, the fact remains that the Parent
Act itself provides that the post of the Head of the
Institution shall be filled up by direct recruitment,
except to the extent prescribed under the
Regulations; and, in terms of the 2018 amendment
2025:UHC:5327-DB
to the 2009 Regulations, the post of Principal is
required to be filled up by promotion, and on
fulfilment of the conditions stipulated therein."
(5) Learned State Counsel has further
drawn attention to a judgment dated
9.6.2025, rendered by this Court in Writ
of the said judgment are extracted below:
"4. Chapter 2 of the Regulations framed
under Uttarakhand School Education Act, 2006 deals
with appointment of Head of institutions and also
teachers. Regulation 2 of Chapter 2 reiterates that
vacancy on the post of Head Master/Principal has to
be filled by direct recruitment, except cases which
are covered by Section 37(1) or Section 38(1) of
Uttarakhand School Education Act. Section 37(1)
and Section 38(1) of the Act provides that selection
for appointment as Head of institution shall be made
by a Selection Committee. Thus, from the scheme of
the Act and the regulations framed thereunder, it is
clear that post of Head of institution has to be
ordinarily appointed by direct recruitment and a
vacancy on the post can be filled by promotion if a
teacher, who fulfills all conditions of eligibility for
promotion as Head of institution as prescribed in
proviso to Regulation 2 is available in the institution.
5. In view of statutory scheme as
discussed above, we do not find any infirmity or
illegality, whatsoever in the communication issued
by Secretary, Secondary Education on 28.10.2020.
Para 4 of the said Government Order is in
consonance with the statutory scheme, therefore we
do not find any reason to interfere with the same."
(6) Since in Writ Petition (S/B) No.
371 of 2020 also, this Court considered
challenge to the Government Order dated
28.10.2020, which is challenged in this writ
petition, therefore, this writ petition is also
decided in terms of the judgment rendered
in Writ Petition (S/B) No. 371 of 2020.
(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, J.)
24.06.2025
Pr PRABODH KUMAR Digitally signed by PRABODH KUMAR
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3a082a00a95aff911a9559743af8f21c50602ff6eae4e61af3aeab198d462503, postalCode=263001, st=UTTARAKHAND, serialNumber=0DC111E8D8CA66E16B940EFDF806ACCC1AB588052DF6FCA58C67F3C91957BE53, cn=PRABODH KUMAR
Date: 2025.06.30 10:11:51 +05'30'
