SOMRAJ SINGH Vs. STATE OF U P

JUDGEMENT

(1.) In the present case Somraj Singh has approached this Court questioning the validity of the decision dated 27. 11. 2008 taken by Regional Joint Director of Education 12th Region Moradabad giving therein direction that post of Principal which has been substantively fallen vacant on 30. 06. 2008, Nanhey Singh, respondent no. 4 by virtue of being senior most teacher in the institution will function as Adhoc Principal in consonance with the provision as contained under Section 18 (4) of U. P. Act No. V of 1982. Brief background of the case is that in the district of Bijnor there is an institution known as Gandhi Inter College, Mankuwan. Said institution is duly recognized institution and is governed by the provisions as contained under U. P. Act No. II of 1921. Said institution is in grant-in-aid list of the State Government and the provisions of U. P. Act No. 24 of 1971 are fully applicable to the said institution. Selection and appointment including promotion on the post of Principal and teachers are to be made strictly as per provision as contained under U. P. Act No. V of 1982 and Rules framed thereunder known Rules 1998. In the institution concerned one Hariraj Singh Gahlaul, who had been performing and discharging duties as Principal of the institution, was placed under suspension on 29. 11. 2005 and after suspension of aforesaid incumbent, Nanhey Singh, respondent no. 4 by virtue of being senior most teacher in the institution was given charge of Officiating Principal. It has been stated in the writ petition that work and conduct of Nanhey Singh, respondent no. 4 was not satisfactory in this regard complaint has been made and subsequent to the same Nanhey Singh, respondent no. 4 on his own voluntarily tendered his resignation on 30. 06. 2007 and same was accepted and subsequent thereto charge of Officiating Principal was handed over to petitioner who is next in line in seniority. Thereafter Hariraj Singh Gahlaul attained the age of superannuation on 30. 06. 2008 and after attaining the age of superannuation by Hariraj Singh Gahlaul substantive vacancy has fallen on the post of Principal then Nanhey Singh, respondent no. 4 has come forward to request that he is senior most teacher as such he is entitled to be given charge of Principal of the institution in term of Section 18 (4) of U. P. Act No. V of 1982. Said claim of aforesaid incumbent has been considered and based on same impugned order in question has been filed. At this juncture present writ petition has been filed. Learned counsel for the petitioner Sri N. L. Pandey, contended with vehemence that once Nanhey Singh has tendered his resignation on his own then he has no right to claim his continuance on the post in question after the same has substantively fallen vacant on 30. 06. 2008 and in this background Regional Joint Director of Education is not at all justified in passing order for his functioning on the post of Principal of the institution. Countering the said submission, learned Standing counsel as well as Surendra Prasad, Advocate contended that functioning of Adhoc Principal is governed by the provision as contained under Sub- Section (4) of Section 18 of U. P. Act No. V of 1982 and in case discretion has been exercised in the past by way of tendering resignation against Officiating arrangement,same will not come in the way of Nanhey Singh, respondent no. 4 as such view which has been taken is correct view, as such no interference be made. After respective arguments have been advanced factual position which has emerged in the present case is that Hariraj Singh Gahlaul who had been functioning as Principal, was placed under suspension on 29. 11. 2005 and qua the said short term vacancy which had occurred on account of incumbent being placed under suspension, Nanhey Singh, respondent no. 4 who was senior most teacher in the institution has been given charge of Officiating Principal and thereafter on 30. 06. 2007 said Nenhey Singh has tendered his resignation and said resignation was duly accepted by the Committee of Management. Petitioner who was next in line has been hand over the charge of Officiating Principal and thereafter petitioner has been performing and discharging duties. Substantive vacancy on the post of Principal has fallen vacant after retirement of Hariraj Singh on 30. 06. 2008 and thereafter Nenhey Singh staked his claim to function as Principal of the institution in question. In the present case question posed is that once if in the past respondent no. 4 has refused to function as Officiating Principal then whether same will stop Nanhey Singh to function again as Principal of the institution. Under the Scheme of things provided for under Section 18 of U. P. Act No. V of 1982 when vacancy in question has substantively fallen vacant and same has been notified to U. P. Secondary Education Services Selection Board, then right is conferred upon senior most teacher to function as Adhoc Principal of the institution till the candidate recommended by the Board joins the post. In the present case this fact has been admitted before this Court that incumbent who had been functioning as Principal of the institution had been placed under suspension then by way of stopgap arrangement Nanhey Singh was permitted to perform and discharge duties as Officiating Principal and subsequent to the same he tendered his resignation on 30. 06. 2007 and thereafter charge has been given to the petitioner to function as Officiating Principal of the institution. Substantive vacancy occurred in the institution on 30. 06. 2008. Substantive vacancy will make all the difference in the present case, inasmuch as Section 18 (4) gives right to senior most teacher to function as Ad hoc Principal till the candidate recommended by the Board joins the post. If after occurrence of substantive vacancy incumbent has refused to function or tendered resignation then certainly said incumbent is stopped to claim office of Principal but if incumbent has been functioning on the post in question as stopgap arrangement during suspension period and tendered his resignation qua the said short term vacancy, same will not come as impediment when vacancy in question has substantively fallen vacant as in said contingency it is statutory right conferred upon senior most teacher to function as Ad hoc Principal and it is for him to accept the same or give up. Any refusal to function as Principal, prior to occurrence of substantive vacancy is of no consequence, as it is merely temporary arrangement, whereas after occurrence of substantive vacancy, he can be replaced only by candidate sent by Selection Board, and it ad hoc arrangement. Learned counsel for the petitioner placed reliance on the judgment in the case of Satya Vir Singh Vs. District Inspector of Schools, Bulandsahar and others in Civil Misc. Writ Petition No. 31338 of 1994 decided on 14. 11. 1994. Said judgment will not come in the rescue of the petitioner as in the said case petitioner while he was continuing to function as Officiating Principal has declined to accept the post and subsequent to the same again, has reclaimed office of Principal in this background View has been taken that he cannot be permitted to function as Officiating Principal. Said Judgment has been distinguished, in the case of Committee of Management, Jai Kisan Inter College, Lalpur Imiliadheesh Bedipur, Basti and others Vs. District Inspector of Schools, Basti and others reported in 1999 (3) UPLBEC 2088 wherein view has been taken that even if an incumbent had declined to officiate as ad hoc Principal in the post and later on the vacancy has again occurs then he is not stopped to claim to be the officiating Principal merely because he had earlier declined, and same will not come in the way as legal impediment. Consequently in the facts and circumstance of the case, view taken warrants no interference by this Court. Consequently, present writ petition is dismissed. .