COMMITTEE OF MANAGEMENT Vs. STATE OF U P

JUDGEMENT

(1.) This intra-Court appeal is preferred by the Committee of Management against the order of the learned Single Judge dated 5.8.2011 dismissing appellant's Writ Petition No. 36168 of 2010 for quashing the order of the District Inspector of Schools dated 13.4.2010 whereby the signature of respondent No. 5, Smt. Aruna Garg is attested as ad hoc Principal of the institution in question. The short facts giving rise to this appeal are that Kunwrani Prema Satyaveera Kanya Inter College (hereinafter referred to as the 'institution'), is a recognized institution under the provisions of the Intermediate Education Act, 1921 and is imparting education upto intermediate level. The payment of salary to the teachers and other employees of the institution is governed under the provisions of the Uttar Pradesh High Schools and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971. As per the appellant's version, in the seniority list published in the month of April, 2005, one Smt. Sangeeta Gupta was shown senior-most teacher of the institution in question and respondent No. 5 was junior to her. It appears that again in another seniority list also circulated in the year 2008, respondent No. 5 was shown junior to Smt. Sangeeta Gupta. It is significant to note that respondent No. 5 did not challenge the aforesaid two seniority lists before any authority. However, when the regular Principal of the institution retired on 30.6.2009 and the signature of Smt. Sangeeta Gupta was attested as ad hoc Principal of the institution, the respondent No. 5 challenged the same before this Court by filing Writ Petition No. 47714 of 2009.

(2.) The learned Single Judge, after hearing learned counsel for the parties, was of the view that the dispute regarding inter se seniority between respondent No. 5 and Smt. Sangeeta Gupta, ought to have been decided by the Committee of Management of the institution (appellant) and, thus, disposed of the writ petition vide order dated 14.9.2009 with the direction to the appellant to decide the seniority within 10 days from the date of production of a certified copy of the order. It was further directed that in the event of default by the Committee of Management in deciding the seniority, the District Inspector of Schools shall pass appropriate order superceding the Management and Authorized Controller shall be appointed to resolve the dispute of seniority. It was further directed that any appointment made in the meantime shall abide by the order to be passed by the Committee of Management/Authorised Controller pursuant to the order of the learned Single Judge dated 14.9.2009. Pursuant to the aforesaid direction of this Court, the appellant decided the seniority dispute vide order dated 29.10.2009 wherein the respondent No. 5 is found junior to Smt. Sangeeta Gupta. Aggrieved respondent No. 5 filed an appeal before the Joint Director of Education 12th, Region Moradabad - respondent No. 3, which was decided by order dated 12.4.2010 wherein respondent No. 5 was held senior to Smt. Sangeeta Gupta. The signature of respondent No. 5 was, accordingly, attested by the District Inspector of Schools, respondent No. 4 on the very next date, i.e. 13.4.2010.

(3.) Aggrieved Smt. Sangeeta Gupta, therefore, filed Writ Petition No. 26608 of 2010 before this Court wherein vide order dated 11.5.2010, notices were issued to respondents inviting counter-affidavit. However, the appointment of respondent No. 5 as ad hoc Principal was directed to abide by the order to be passed in that writ petition. The appellant also challenged the order of the District Inspector of Schools dated 13.4.2010 by filing Writ Petition No. 36168 of 2010, where from this appeal has arisen, on the ground, inter alia, that as per the provisions contained in Section 18 (1) of the U.P. Secondary Education Services Selection Boards Act, 1982 (in short, 'the Act'), it is the Committee of Management of the institution who is empowered to fill up the vacancy caused on account of retirement which remained vacant for more than two months though it was notified to the Board and, therefore, the senior-most teacher is to be promoted as ad hoc Principal as provided in sub-section (1) of Section 18 of the Act by the Committee of Management. However, in the instant case, the District Inspector of Schools attested the signature of respondent No. 5 the very next day of the decision of respondent No. 3, i.e. 13.4.2010 in exercise of powers under sub-section (2) of Section 18 of the Act without waiting for the decision of the Committee of Management. The power under sub-section (2) of Section 18 of the Act could have been exercised by the District Inspector of Schools only when the Committee of Management had failed to promote the senior-most teacher under sub-section (1) of Section 18 of the Act, whereas in the case in hand, without there being any complaint from respondent No. 5 that the appellant-Committee of Management is delaying the matter in recommending and forwarding her name to the District Inspector of Schools for attestation of her signature as ad hoc Principal and without there being any recommendation by the Committee of Management, the District Inspector of Schools immediately passed the order under sub-section (2) of Section 18 of the Act attesting the signature of respondent No. 5 which could not have been done, unless it is found that the Committee of Management was delaying the matter arbitrarily and illegally. In short, the case of the appellant is that it is the Committee of Management who would decide about the ad hoc Principal and only when it fails to appoint anyone as ad hoc Principal within two months, the District Inspector of Schools will suo motu exercise power appointing the senior-most teacher as ad hoc Principal. The learned Single Judge, however, dismissed the writ petition merely on the ground that since Smt. Sangeeta Gupta, the person aggrieved has already filed Writ Petition No. 26008 of 2010 and also obtained an interim order, the Committee of Management cannot subsequently file writ petition to assail the same order without challenging the decision taken by the Regional Level Committee, which is impugned in this appeal.