BACHAU VISHWAKARMA Vs. STATE OF U P

JUDGEMENT

(1.) PRESENT writ petition has been filed by the petitioner questioning the validity of the decision dated 22.6.2008 passed by the Basic Shiksha Adhikari, Chandauli declaring Jawahar Singh, respondent no.4 as senior viz-a-viz to petitioner and further declaration that it was he who was entitled for promotion as Headmaster of the institution. Civil Misc. Writ Petition No. 13208 of 2009 had been filed by the Jawahar Singh questioning the validity of the selection proceeding undertaken by the Management for making selection and appointment on the post of Headmaster at Mangal Vidhya Mandir, Hiya District Chandauli. Brief background of the case is that in the district of Chandauli, there is recognised institution known as Mangal Vidhya Mandir, Hiya District Chandauli. Said institution is duly recognised institution under U.P. Basic Education Act, 1972. Selection and appointment on the post of Headmaster and assistant teacher has to be made strictly in consonance with the U.P. Recognised Basic Schools (Junior High schools) Recruitment and Conditions of Service of Teachers) Rule, 1978. In the institution concerned, one Bechan Shahu Vishwakarma had been functioning and discharging his duties as Head Master and he attained the age of superannuation on 30.6.2008. Managing Committee of the institution prior to it on 8.6.2008, proceeded to pass resolution by contending that Bachau Vishwakarma is senior to Jawahar Singh and as such Bachau Vishwakarma should be permitted to function as officiating Principal. Based on the said resolution, Basic Education Officer, Chandauli also attested the signature of Bachau Vishwakarma and Bachau Vishwakarma continued to function as officiating Principal. Jawahar Singh represented the matter before the District Basic Education Officer, Chandauli and on the said representation being moved, Manager of the institution was asked to submit his comment and manager of the institution submitted his comment on 16.7.2008. Thereafter, District Basic Education Officer, Chandauli after taking into account comment, formed opinion that Jawahar Singh was senior and as such he was entitled to function as Headmaster of the institution, at this juncture present writ petition has been filed. Counter affidavit has been filed and therein it has been contended that since the School is run and Managed by Committee of Management, therefore, the U.P. Recognised Basic Schools (Junior High schools) Recruitment and Conditions of Service of Teachers) Rule, 1978 is applicable not the U.P. Basic Education (Teachers) Service Rules, 1981. In fact, the petitioner has mislead to this Hon'ble Court by placing reliance on Rules, 1981. The Rules, 1981 is applicable upon such teachers who are employed for the Basic and Nursery schools established by the Board, while Rules, 1978 is applicable upon such teachers who are employed by committee of Management recognised by the Board",and that date of appointment of respondent nos. 4 i.e. Jawahar Singh is 15.7.1974 while date of appointment of petitioner is 30.9.1975 and both respondent no. 4 Jawahar Singh and petitioner were appointed as Assistant Teacher in the institution and at the said point of time U.P. Recognised Basic Schools (Junior High schools) Recruitment and Conditions of Service of Teachers) Rule, 1978 was not at all enforce and in this background it has been stated that date of appointment is to be accepted for the purposes of seniority. Respondent no.4 Jawahar Singh has contended that seniority list, in fact had been prepared in the institution on 24.1.2002, wherein names were counter signed qua their respective date of appointment and therein name of respondent no.4 was shown at serial no.2, whereas name of petitioner was shown at serial no.4 and it was counter signed by the Headmaster and was handed over before the District Basic Education Officer, Chandauli for being kept in guard file relating to the institution. It has also been stated that seniority list dated 1.9.2003 was prepared only for the purposes of the case and it did not bear any date, further same has not been counter signed by the Principal of the institution and date of approval of Sheo Pujan Shahu was 31.3.1977, then why his name has been placed below respondent no.4 Jawahar Singh. Respondents has stated that resolution dated 8.6.2008 was nothing but to defeat legitimate right of respondent no.4 to function as Head Master of the institution. It has been stated that whenever Headmaster went on leave, it was the respondent no.4 who took over the charge. It has been sought to be contended that order passed, is justifiable order and no interference is required . Rejoinder affidavit has been filed, disputing the averments mentioned in the counter and reiterating that of writ petition. After pleadings mentioned above, have been exchanged, and thereafter, present writ petition has been taken up for final hearing/disposal with the consent of the parties. Sri Arvind Srivastava Advocate, appearing with Mohd. Navshad Siddiqui, Advocate contended with vehemence that in the present case petitioner's right to function as officiating Principal has been defeated without providing any opportunity of hearing to him and as such entire action is bad in the eyes of law being in violation of Principal of natural justice. Learned Standing Counsel as well as Dharmendra Dhar Dubey representing respondent no.4 on the other hand contended that rightful view has been taken in the matter and on admitted position no interference is required by this court. After respective arguments have been advanced, undisputed factual position on which there is no dispute that respondent no.4 had been appointed on 15.7.1974 and petitioner Bachau Vishwakarma was appointed on 30.9.1975. At the point of time when both these incumbents have been appointed, U.P. Recognised Basic Schools (Junior High schools) Recruitment and Conditions of Service of Teachers) Rule, 1978 was not applicable as said rule itself has come in the year 1978, and in this background this much is admitted position that appointment of respondent no.4 was prior in time viz-a-viz appointment of petitioner and there was no provision of prior approval. At the point of time, when the appointment of respondent no.4 and petitioner had been made, then relevant criteria for determining seniority would be the date of respective appointment in the said grade. This fact has also not been disputed that seniority list was prepared on 24.1.2002 and therein name of respondent no.4 Jawahar Singh was shown over and above to petitioner and said seniority list is duly counter signed by the Headmaster and was forwarded before the District Basic Education Officer, Chandauli for being kept in guard file relating to the institution. Only when Principal of the institution was to attain the age of superannuation on 30.5.2008, then ex-parte to Jawahar Singh resolution dated 8.6.2008 passed, and by means of the same, seniority which prevailed, and was holding the field qua the same, alteration was sought to be made, based on the basis of approval and the right of the Jawahar Singh was sought to be defeated, and based on the said resolution petitioner was sought to be handed over the charge of the institution. Thus accepted position is that said resolution had been undertaken without providing any opportunity of hearing to Jawahar Singh and reference was given therein to earlier proceedings. Once resolution dated 8.6.2008 had been passed on the eve of Headmaster of the institution being superannuated on 30.6.2008 and right of Jawahar Singh was sought to be defeated from the Managing Committee, then opportunity of hearing was necessary at this stage. In the case of Radha Raizada Versus Committee of Management V.D.G.I.College and others 1994 (3) UPLBEC 1551 this court in reference to the Principal/Headmaster of High School and Intermediate Colleges has taken the view that rights of the senior most teachers are to be defeated, then opportunity is to be afforded to them and in case no such opportunity is afforded then such resolution cannot be passed. The very principle can be made applicable here also, as her also when the office of principal was to fall vacant, then said exercise had been undertaken by the Managing Committee on 8.6.2008 and said exercise is unilateral exercise. Against the said action Jawahar Singh represented the matter before the District Basic Education Officer and manager was given opportunity and then decision has been taken that Jawahar Singh is senior viz-a-viz petitioner Bachau Vishwakarma on the basis of his appointment being prior in time. View which has been formed by the District Basic Education Officer qua the seniority, is rightful view for the simple reason that appointment made prior to enforcement of 1978 Rules required no approval, then the date of appointment was relevant date and as far as Jawahar Singh is concerned, his date of appointment is prior in time. Once admitted position is that Jawahar Singh was senior and on totally wrong premises by means of unilateral resolution, right of the Jawahar had been taken away, then merely because no opportunity has been provided to petitioner, same will make in difference, and it will be nothing but empty formality. Here before this Court this position has been conceded that Jawahar Singh is senior and this position has also been conceded that earlier resolution qua him was ex-parte to him. Once rightful decision has been taken by the District Basic Education Officer in favour of senior most teacher of the institution, then senior most teacher is entitled to function as head master of the institution till regular selection is made by the Managing Committee as envisaged in 1978 rules. Any interference with the impugned order in question will amount to revival of another ex-parte illegal resolution. Consequently, Writ Petition No.39040 of 2008 is dismissed. Civil Misc. Writ Petition No. 13208 of 2009 is also dismissed, as regular process of selection has to be undertaken as per 1978 Rules. No orders as to cost.