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1988 Supreme(All) 95
HIGH COURT OF ALLAHABAD
K.C. AGRAWAL, B.L.YADAV, JJ.
Mal Bahadur - Appellant
Versus
District Inspector Of Schools, Jaunpur – Respondent
Civil Misc. Writ Petition No. 14975 of 1982
Decided on : Feb 22, 1988
S.J. Yadav, P.N.Tripathi
The appointment of Principal of an Intermediate College or Head Master of a High School cannot be filled up by transfer from some other institution.
Headnote:
EDUCATION - U.P. SECONDARY EDUCATION SERVICE COMMISSION AND SELECTION BOARDS ACT, 1982 - SECTION 16 - APPOINTMENT OF PRINCIPAL OF INTERMEDIATE COLLEGE - HELD, APPOINTMENT OF PRINCIPAL OF INTERMEDIATE COLLEGE OR HEAD MASTER OF HIGH SCHOOL CANNOT BE FILLED UP BY TRANSFER FROM SOME OTHER INSTITUTION.
Fact of the Case:
The petitioner, Mal Bahadur, was appointed as officiating Principal of Inter College, Machchlishahr, Jaunpur, on 1-7-81. The Committee of Management of the College sent a resolution for approval of the petitioner's appointment as Principal to the District Inspector of Schools, but he did not approve the appointment. In the meantime, the U.P. Secondary Education Service Commission and Selection Boards Act, 1982 (the Act) came into force. Under Section 16 of the Act, every appointment of teachers specified in the schedule, including the appointment of principals of Intermediate Colleges, was to be made only on the recommendation of the Commission. The petitioner prayed for a writ of Certiorari quashing the order dated 6-12-82 by which Sri Tribhuwan Singh was transferred as Principal of the College, and for quashing the proceedings for selection of Principal held by the Commission in pursuance of the procedure provided under the Act and Rules and Regulations by which the petitioner of second writ petition was found to be most suitable and was issued appointment letter as Principal on substantive vacancy. The petitioner also prayed for a writ of Mandamus directing the District Inspector of Schools to accord approval of the signature of petitioner as ad hoc principal of the College.
Finding of the Court:
The Court held that the appointment of Principal of an Intermediate College or Head Master of a High School cannot be filled up by transfer from some other institution. It is to be made only through selection as contemplated by sections 9, 10 (2) and 11 of the Act read with relevant Rules and Regulations.
Issues: 1. Whether the provisions of Sections 9, 10 (2) and 11 of the Act were violative of Article 14 of the Constitution on account of delegation of essential legislative function of the Commission? 2. Whether a substantive vacancy of Principal in an Intermediate College can be filled up by transfer from another Intermediate College? 3. Whether the petitioner was entitled to benefit of Section 33-A (thirty-three-A) of the Act? 4. Whether the petitioner in first and third petition was entitled to equitable consideration in his favour as he was officiating as Principal since 1-7-81 being senior most lecturer in the College? 5. Whether the petitioner in first and third petition was entitled to relief of a writ of Certiorari and a Mandamus.
Ratio Decidendi: 1. The Court held that the provisions of Sections 9, 10 (2) and 11 of the Act were not violative of Article 14 of the Constitution on account of delegation of essential legislative function of the Commission. The Court observed that the Act provides sufficient guidelines and principles, and the details of selection of teachers, specified in the Schedule, has been referred to the trained and expert body constituted under section 4 of the Act. The Court also noted that the Rules and Regulations provide sufficient guidelines and afford sufficient opportunity to every candidate. 2. The Court held that a substantive vacancy of Principal in an Intermediate College cannot be filled up by transfer from another Intermediate College. The Court observed that Section 16 of the Act enacts that notwithstanding anything contained to the contrary in the Intermediate Education Act or the Regulations made thereunder, every appointment of a teacher specified in Schedule including that of a Principal, shall be made after July 10, 1981, by the management on recommendation of the commission. 3. The Court held that the petitioner was not entitled to benefit of Section 33-A (thirty-three-A) of the Act. The Court observed that the petitioner was not appointed directly before the commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc basis against substantive vacancy in accordance with para 2 of the U.P. Secondary Education Service Commission Removal of Difficulties Order, 1981. The Court also noted that the petitioner was appointed on promotion being senior most teacher in the College. 4. The Court held that the petitioner in first and third petition was not entitled to equitable consideration in his favour as he was officiating as Principal since 1-7-81 being senior most lecturer in the College. The Court observed that the petitioner had appeared before the Commission for selection to the post of Principal in a substantive vacancy, in the College and had faced interview, but was not selected, whereas the petitioner of second writ petition was selected and appointed by the management and has assumed charge also. 5. The Court held that the petitioner in first and third petition was not entitled to relief of a writ of Certiorari and a Mandamus. The Court observed that the petitioner had failed on merits and was not entitled to any relief on account of equitable considerations.
Final Decision: The first petition (Writ petition no 14975 of 1982 Mai Bahadur v. District Inspector of Schools and others) succeeds in part and is allowed to the extent that the order dated 8-12-82 (Annexure 11 to the first petition) appointing Sri Tribhuwan Singh, respondent no. 2 to the first writ petition, as Principal of the College by transfer, is quashed. But the first and third writ petitions, in respect of remaining reliefs including for a writ of Certiorari quashing the proceedings for selection initiated and held by the commission for selection of principal of the College and to quash the letter of appointment dated 30-11-85 (Annexure 18 to the third writ petition) issued in favour of the petitioner in second writ petition, including for a relief of Mandamus directing the District Inspector of Schools to regularise the appointment of petitioner in first and third writ petitions on the post of Principal of the College, are hereby dismissed. The second writ petition filed by Birendra Nath Singh (being writ petition no. 1120 of 1986) succeeds and is allowed. The District Inspector of Schools is directed to attest the signature of the petitioner within a period of three weeks from the date a certified copy of the judgment is produced before him.
B. L. Yadav, J.
1. These three writ petitions, Writ Petition No. 14975 of 1982, (hereinafter referred to as the first writ petition), Writ Petition No. 1120 of 1986, (hereinafter referred to as the second writ petition) and Writ Petition No. 7853 of 1986, (hereinafter referred to as the third writ petition), under Article 226 of the Constitution of India are directed against the appointment of Principal in Inter College, Machchlishahr, Jaunpur, (hereinafter referred to as the College). It is convenient to dispose of these three petitions by a common judgment. By first and third writ petitions the petitioner has prayed for a writ of Certiorari quashing the order dated 6-12-82 (Annexure 11 to the first writ petition and Annexure 7 to the third writ petition) and for quashing the proceedings for selection of Principal held by the Commission in pursuance of the procedure provided under the U.P. Secondary Education Service Commission and Selection Boards Act, 1982 (for short the Act) and Rules and Regulations by which the petitioner of second writ petition was found to be most suitable and was issued appointment letter as Principal on substantive vacancy (vide Annexure 1 to the second writ petition). The petitioner of first and third writ petitions prayed further for issuing a writ of Mandamus directing the District Inspector of Schools, Jaunpur to accord approval of the signature of petitioner as ad hoc principal of the College.
2. Some portrayal of the essential facts are imperative in order to appreciate the controversy involved. There is an Intermediate College known as Inter College, Machchlishahr, Jaunpur. Sri Krishna Lal, officiating Principal of the College retired on 30-6-81 and the petitioner of first and third writ petitions, Mai Bahadur, being senior most lecturer, was promoted and appointed as officiating Principal on 1-7-81. The resolution of the Committee of Management for approval of the petitioner of first and third writ petitions, Mal Bahadur, as Principal of the College was sent to the District Inspector of Schools. But he did not approve the said appointment by his order dated 3-10-81 (Annexure 6 to the first writ petition). The Committee of Management and the petitioner of first and third writ petitions made several representations that the appointment as officiating Principal may be approved, but they did not succeed. In the meanwhile U.P. Secondary Education Service Commission (Selection and Board) Ordinance, 1981 (for short Ordinance) and Act, 1982 (for short the Act) came into force. Under Section 16 of the Act, after the enforcement of Ordinance and Act, every appointment of teachers specified in the schedule including the appointment of principals of Intermediate Colleges was to be made only on recommendation of U.P. Secondary Education Service Commission (for short the Commission) and in no other way. The petitioner of first and third writ petitions claim that he may be confirmed on the post of Principal in view of the provisions of U.P. Secondary Education Service Commission (Removal of Difficulties) Order, 1981 and Section 33-A of the Act. This completes the one phase of the facts.
The second phase, however, is that one Sri Tribhuwan Singh, Principal of Maharana Pratap Inter College, Ram Dayal Ganj, Jaunpur (respondent no. 2 in the first and respondent no. 7 in the third writ petition) was transferred by order dated 8-12-82 (vide Annexure 11 to the first and Annexure 7 to the third writ petition), as Principal of Inter College, Machchlishahr, Jaunpur, and was directed to take charge from officiating Principal, Mal Bahadur. But before he could take charge, the first writ petition was filed and an interim stay was obtained staying the operation of order dated 8-12-82. But as there was a permanent vacancy of Principal hence under Section 10 of the Act the same was notified by the Committee of Management to the Commission, the process of selection of Principal started and the petitioner of first and
