ZAIGHAM ALI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Sanjay Misra for the appellant and Sri Ramesh Kumar Pandey for the respondent no. 6. The respondent no. 6 was given the charge of officiating principal, but later on, he was suspended and an enquiry was initiated against him in respect of certain charges. His suspension was approved by the D.I.O.S and in the enquiry, out of five charges, four were found proved. Since the authorised controller was functioning in the institution, therefore, he vide his order dated 23.7.2007 directed that the respondent no. 6 cannot be allowed to function as officiating principal in view of the fact that charges of financial and administrative irregularities were levelled against him, and since he was not getting the salary of the post of principal, therefore, his status would not be changed. Aggrieved by the aforesaid order, the respondent no. 6 made a representation to the Joint Director, Education, but in the meantime, he filed a writ petition before this Court, praying for quashing of the order passed by the authorised controller. In the said petition, the present appellant, who is at serial no. 2 in the seniority list undisputedly, was also impleaded as respondent and to whom the charge of the officiating principal was given by the authorised controller after passing the order dated 23.7.2007 and he was working as such on the said post. During the pendency of the writ petition, the Joint Director of Education, passed an order on 19.2.2009 accepting the plea of the respondent no. 6 for holding the post of officiating principal, after observing that in the enquiry, charges levelled against the respondent no. 6 have not been found proved and that in view of Section 16(g)(5) of the Intermediate Education Act, 1921, no case of suspension is made out against him. He further observed that the committee of management/board cannot either dismiss or remove any teacher, nor any notice can be given for removal, nor he can be dismissed, nor his perquisites can be lessened unless prior approval is taken and, therefore, the enquiry conducted by the authorised controller was not legal. After making the aforesaid observations, he directed that in view of the fact that charges have not been proved against the respondent no. 6, he be allowed to continue on the post of officiating principal, for which necessary orders be passed by the authorised controller. Serious arguments have been raised from both the sides with respect to their right to continue on the post of officiating principal. Learned counsel for the appellant submits that because in the pending enquiry, charges against respondent no. 6 were found proved and though he is senior to the appellant, he cannot claim as a matter of right to continue on the post of officiating principal in view of aforesaid charges, whereas Sri Ramesh Kumar Pandey, learned counsel for the respondent no. 6 submits that in view of the orders passed by the Joint Director of Education coupled with the fact that the Joint Director of Education found that charges against the respondent no. 6 were not found proved, the respondent no. 6 has right to continue on the post of officiating principal. Further submission is that the order passed by the Joint Director of Education cannot be ignored by the authorised controller and consequently, the order passed by the learned Single Judge does not require any interference. Learned counsel for the respondent no. 6 has also relied upon a decision of learned Single Judge of this Court in re: Smt. Hem Lata Agarwal v. District Inspector of Schools, Allahabad and others, reported in 2004 All. L.J. 334, in support of his plea that even in the matter of ad hoc principal, if the incumbent is to be reverted to his substantive post, prior approval as required under Section 21 of the Act is necessary and since such an approval has not been taken in the present case, therefore, the respondent no. 6 cannot have been reverted. We do not intend to enter into the aforesaid controversy as the same is not of much relevance in the present case. All that requires consideration is as to whether the order passed by the Joint Director of Education can be sustained. The Joint Director of Education, under which provision of the Act or the Rules, entertained the representation of respondent no. 6, is not known. We have repeatedly put query to the learned counsel for respondent no. 6 to name section or provision of any Act or Rules under which such a representation could have been made by respondent no. 6 against the order passed by the authorised controller, but he could not answer to the said query and lastly relied on Section 16 (E)(8) of the Act. A perusal of Section 16 (E)(8) of the Act itself reveals that it is not applicable in the matter of appointment of officiating principal, but it relates to a selection made. No selection has taken place as yet in the present case. Apart from the fact that the respondent no. 6 could not have made a representation to the Joint Director of Education against the order passed by the authorised controller, there being no statutory provision for the same, the order of the Joint Director of Education did require consideration by the learned Single Judge, as apparently and obviously it contains certain incorrect observations. The copy of the enquiry report, which has been brought on record and placed before us, indicates that out of five charges against the respondent no. 6, only one charge could not be proved and four charges were found proved, whereas the order of the Joint Director of Education says that enquiry report shows that no charge has been proved against the respondent no. 6. Obviously, this assertion of the Joint Director of Education is perverse and cannot be sustained. The moot question for consideration in the writ petition was as to whether in view of the charges and the enquiry proceedings pending against the respondent no. 6, though he is senior to the present appellant, whether he could be restrained from functioning as officiating principal and if not, then how the present appellant has been allowed to discharge the said duties. The learned Single Judge has not addressed himself on this issue, nor has considered the parties' claim to the post of officiating principal, and has dismissed the writ petition, and that too, with the observation that it is open to the aggrieved person to approach the authorities for redressal of any grievance that they may have. With all respect to the observation made by the learned Single Judge, we would like to observe that when a matter is brought before the Court, the endeavour of the Court is to settle the dispute and not to make the parties to run again and again for the same cause of action and for the same reason unless ofcourse it becomes very necessary to leave the question open. By making this observation, the learned Single Judge has again opened an avenue for the aggrieved party to approach the departmental authority or to take any other action as may be provided under law, though the dispute was with respect to holding of post of principal on officiating basis, on which two incumbents were claiming their right. Since both have approached the Court, the matter could have been decided on merits by the Court itself. We, therefore, allow the special appeal and set aside the order passed by the learned Single Judge and remit the matter to the learned Single Judge having jurisdiction to decide it on merits. If affidavits have not been exchanged, the same shall be exchanged within four weeks. List the writ petition for hearing in July, 2009. The case shall remain on board till it is finally decided.