MUNISHWAR DUTT PANDEY Vs. RAMJEET TIWARI

JUDGEMENT

(1.) In this appeal by special leave under Article 136 of the Constitution of India the appellant has brought in challenge the decision rendered by a Division Bench of the High Court of Judicature at Allahabad. Lucknow Bench in Special Appeal No. 300 of 1992, moved by respondent No. 1 against a common judgment and order of the learned single Judge in three writ petitions filed by the contesting parties to these proceedings, namely, the appellant on the one hand and respondent No. 1 on the other. The short question involved in these proceedings is as to whether the appellant Munishwar Dutt Pandey or respondent No. 1 Ramjeet Tiwari is entitled to continue as Principal of Brijendra Mani Inter College, Kohandaur, Pratapgarh functioning in the State of Uttar Pradesh. For the sake of convenience we will refer to the appellant as original writ petitioner, and respondent No. 1 as the main contesting respondent.

(2.) A few relevant facts leading to these proceedings deserve to be noted at the outset. The original writ petitioner and the contesting respondent were appointed as teachers in the aforesaid Brijendra Mani Inter College, Kohandaur in Pratapgarh District of State of Uttar Pradesh. Both of them were working as lecturers in their respective Departments of Sanskrit and Geography. One Jagdeo Prasad Misra was working as regularly appointed Principal of the said Brijendra Mani Inter College (hereinafter referred to as the College). He retired from service on 30th June, 1988, on attaining the age of superannuation. Immediately before his retirement, said Shri Misra addressed a letter jointly to the Chairman / President of the Manging Committee of the College and its Secretary inquiring from them as to whom he should hand over charge on his retirement. In that letter he mentioned that the writ petitioner was senior most lecturer of the College having been appointed on 12th August 1969 and the second senior most lecturer in the College was the contesting respondent. On this letter of retiring Principal, the Secretary of the Managing Committee made an endorsement to the President / Chairman of the Committee stating that Shri Misra was superannuating on 30th June 1988 and the writ petitioner was the senior most lecturer of the College and, therefore, he recommended that the charge of the post of Principal be given to him. This recommendation was accepted by the President / Chairman of the Committee on 1st July 1988. Pursuant to this order, a Letter of Appointment effective from 1st July, 1988 was issued to the writ petitioner under the signature of Chairman / President of the Managing Committee appointing the writ petitioner as ad hoc Principal of the College. It appears that on that day the said order was not backed up by any Resolution of the Managing Committee. However, it was mentioned in this Letter of Appointment that the writ petitioner was being appointed purely on ad hoc basis and his appointment would last till a suitable candidate was made available by the U. P. Secondary Education Services Selection Board (hereinafter referred to as the Board), or till any other decision was taken by the management. Pursuant to this Appointment Letter the writ petitioner started working as Principal of the said College from 1st July 1988. On 29th October 1988, the Managing Committee of the College passed a Resolution accepting the ad hoc appointment of the writ petitioner on the post of Principal. The said appointment was in turn approved by the District Inspector of Schools vide his letter dated 19th May, 1989, for payment of salary under the provisions of U. P. High Schools and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971. In the said Letter of Approval it was mentioned that the approval was given for appointment of the writ petitioner under Section 18 of the U. P. Secondary Education services Selection Board Act, 1982, (hereinafter referred to as the Act) and the appointment was purely temporary and would last till a candidate selected by the Board was available.

(3.) It is not in dispute between the contesting parties that the writ petitioner is senior to the contesting respondent. The writ petitioner was appointed as lecturer in Sanskrit on 12th August 1969. Whereas the contesting respondent was appointed as a lecturer in Geography on 14th August 1969. It was also an admitted position between the contesting parties before the High Court, both before the learned Single Judge as before the Division Bench, that the management of the College had sent in July 1988, a requisition to the Board for selection of a regular Principal of the College. As prescribed under the Rules framed under the Act the management forwarded names of writ petitioner and contesting respondent to the Board which called both of them and other candidates for interview. The Board after interviews notified on 3rd May 1991, that it had selected the contesting respondent at serial No. 1 and one another person named Shiv Sagar Shukla at serial No. 2, in order of merit for the post of Principal of the College. However, the writ petitioner was not selected. The Board communicated the said notification to the management vide its letter dated 6th May 1991. In pursuance of the said selection the Committee of Management appointed the contesting respondent to the post of Principal of the College vide its Resolution dated 18th May 1991, and Letter of Appointment of the same date was issued in favour of the contesting respondent who took over charge from the writ petitioner on 14th May, 1991. Now in the meantime it transpired that Section 33-A of the Act got amended by the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act, 1991. As per the said Act Section 2 of the Amending Act was deemed to have come into force from 6th April 1991, and the remaining provisions were to come into force at once. Section 33-A of the Act was amended by insertion of sub-sections (1-A), (1-B) and (1-C) in Section 33-A of the Act, We shall refer to the said provisions of the Amending Act an appropriate stage in latter part of this judgment. Placing reliance on these amended provisions of Section 33-A the writ petitioner moved the High Court of Judicature at Allahabad, Lucknow Bench by way of writ petition contending that his ad hoc appointment as Principal with effect from 1st July 1988, had stood statutorily regularised and, therefore, he was entitled to continue as a regularised Principal of the College and consequently the contesting respondent could not continue as Principal of the said College. He, of course, by separate writ petition challenged the process of selection undertaken by the Board but we are not concerned with that writ petition in the present proceedings. The third writ petition was moved by the contesting respondent contending that he was entitled to continue as a regularly selected Principal of the College. As all these three writ petitions involved common question they were heard together and were disposed of by a common Judgment of the learned single Judge of the High Court. The learned single Judge took the view that in the light of the Amending Act of 1919, which had brought on the Statute Book Section 33-A (1) (1-A) of the Act appointment of writ petitioner was required to be regularised as Principal of the College. Consequently the contesting respondent could not continue to function as Principal of the College. In the light of the aforesaid finding of his the writ petition filed by the writ petitioner was allowed. A writ of certiorari was issued quashing the notification dated 3rd May 1991, appointing the contesting respondent as Principal of the College. A writ in the nature of mandamus was issued commanding the management and other authorites which were joined as parties to the writ petitions not to give effect to the notification dated 3rd May, 1991, and directing them to allow the writ petitioner to continue on the post of Principal of the College. The writ petition filed by the contesting respondent was dismissed. As stated earlier it is the common order of the learned single Judge of the High Court which was brought in challenge by the contesting respondent by filing Special Appeal No. 300 of 1991, before the Division Bench of the High Court. The Division Bench by its impugned order took the view that the writ petitioner was not entitled to get regularisation of his ad hoc appointment as Principal and neither amended provision of Section 33-A (1) (1-A) nor Section 33-A (1) (1-C) was applicable to the case of the writ petitioner. Consequently there was no question of regularising his services as Principal and on the contrary as in the selection process the contesting respondent was selected and the writ petitioner was not selected, it was the contesting respondent who was entitled to continue as Principal of the College and not the writ petitioner. Consequently, the appeal was allowed and the judgment of the learned single Judge was set aside. However it was clarified that as the writ petitioner Munishwar Dutt Pandey had held the post of Principal in spells under different orders of the Court if he had been paid the salary of the post of Principal he shall not be compelled to refund the same. If one the other hand the salary was not paid he shall not be entitled to get it. The aforesaid judgment of the Division Bench is brought on the anvil of scrutiny in the present proceedings by the writ petitioner. Rival Contentions