PREM NARAIN DUBEY Vs. STATE OF U P

JUDGEMENT

(1.) The Board had held an interview on 14th June, 1996 for the purpose of selection of Principal of the concerned school in which the respondent No. 4 Shri Pramod Kumar was selected. The petitioner contends that the said selection was made without calling for interview of the two senior-most teachers in the school who were eligible to be considered for the purpose of appointment. It is contended in the Writ Petition that first senior-most teacher Shri Vidya Sagar Shukla had filed a Writ Petition chalenging the appointment of the respondent No. 4 being Writ Petition No. 20765 of 1994 which was disposed of on 11th July, 1996 alongwith Writ Petition No. 20802 of 1996. In the said order it was undertaken on behalf of the Commission that the post of Principal would not be filled up without considering the case of Mr. Vidya Sagar Shukla and other senior-most teacher as required under the law. Subsequently, another Writ Petition was filed being Writ Petition No. 27676 of 1996 by the said Sri Vidya Sagar Shukla which was disposed of by order dated 4th September, 1996 directing the Commission to allow the petiutioner an interview in terms of order dated 1lth July, 1996 passed in Writ Petition No. 20802 of 1996 since been disposed of alongwith Writ Petition No. 20765 of 1994. The petitioner contends that in the meantime, the respondent No. 4 had filed Writ Petition No. 1774 of 1997 in which Shri Vidya Sagar Shukla was made respondent No. 4. The said Writ Petition was disposed of by an order dated 14th February, 2000. In the said order, the District Inspector of Schools was directed to pass appropriate order on the application filed by the petitioner on 31st December, 1999 within a specified time. Pursuant to the said order, the order dated 15th March, 2000 has since been passed by appointing respondent No. 4 as Principal of the concerned school in terms of the order dated 14th February, 2000 passed in Writ Petition No. 1774 of 1997. This order dated 15th March, 2000 has since been challenged by the petitioner claiming that he is the senior-most teacher and he was not allowed any interview and, therefore, the selection of the respondent No. 4 was invalid and the order dated 15th March, 2000 cannot be sustained.

(2.) Mr. Ramesh Upadhyaya, learned Counsel, for the petitioner contends that in view of the non-consideration of the petitioner's case being the second senior-most teacher, the selection of the respondent No. 4 is invalid according to the legal proposition which is by now settled in view of the decision in the case of Murlidhar Mishra v. U.P. Secondary Education Services Commission and Ors., 1994(1) ESC 470 (All), as well as Kedar Nath Awasthi v. Administrator (Nagar Mahapalika), Lucknow and Ors., 1984 UPLBEC 914 and Ram Briksh Maurya and Ors. v. Murlidhar Mishra and Ors., 1999(2) ESC 956 (All).

(3.) Mr. R.K. Sharma learned Counsel for the respondent No. 4 on the other hand, submits that the said Sri Vidya Sagar Shukla was asked to appear in the interview thrice in terms of the order passed in the successive Writ Petition but the said Sri Vidya Sagar Shukla never appeared in the interview. Relying on a copy of the counter-affidavit filed in Writ Petition No. 1774 of 1997, he contends that the second senior-most teacher had appeared in the interview which is reflected in Paragraph 4 of the said affidavit which is part of record in Writ Petition No. 1774 of 1997. Therefore, the petitioner cannot make out any grievance. He further contends that the selection was made in June, 1996 but the petitioner had never challenged the said selection until the impugned order is passed. Therefore, it should be presumed that the petitioner had waived his right if he had any.