Court No. - 34
Case :- WRIT - A No. - 13680 of 2020 Petitioner :- C/M Nehru Vidyalaya Inter College Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Anurag Shukla,Sr. Advocate(Sri H.N. Singh ) Counsel for Respondent :- C.S.C.,Alok Dwivedi,Krishna Kumar Chand
Hon'ble Yashwant Varma,J.
Heard Sri H.N. Singh, learned Senior Counsel in support of the petition, Sri K.K. Chand, learned counsel representing the second respondent, Sri Alok Dwivedi, learned counsel appearing for the fourth respondent and Sri Piyush Shukla, learned Additional Chief Standing Counsel for the State respondent.
The instant petition has been preferred seeking quashing of the order of 03 September 2020. In terms of the order impugned, the District Inspector of Schools has principally held that insofar as the issue of suspension of the fourth respondent is concerned that stands concluded in terms of the order of 13 September 2019. It further notices the fact that since the order of termination as passed by the petitioner Committee of Management has already been forwarded to the Board, till such time as the same is approved, the fourth respondent who is admittedly the senior most teacher would be entitled to continue as Principal of the institution.
The fourth respondent was placed under suspension by the Committee of Management in terms of its order of 08 July 2019. When the papers were forwarded to the DIOS for approval, he by his order of 13 September 2019, held that since the period of 60 days had expired the order of suspension would not survive. He failed to record any findings in respect of the validity of the order of suspension itself as was mandated notwithstanding the expiry of the period of 60 days in light of the decision rendered by the Full Bench in Chandra Bhushan Mishra Vs. District Inspector of Schools, Deoria [1995 (1) UPLBEC 460]. However since by the order of 13 September 2019, direction was also framed for the charge of Principal to be handed over to the fourth respondent, the officiating Principal petitioned this Court by means of Writ A No.16887 of 2019. That petition came to be dismissed by a learned Judge of the Court with the following observations: -
"Be that as it may, as it is not in dispute that the fourth respondent is the seniormost eligible lecturer in the institution and as per the provisions of Section 18(1) of the Act, 1982 the vacancy on the post of Principal, till regular selection is made, would have to be filled, on purely adhoc basis, by promoting the senior-most teacher in the lecturer's grade in the institution and on failure of the management to do so, the Inspector is empowered under sub-section (2) of Section 18 of the Act, 1982 to direct for such adhoc promotion, the direction issued by the District Inspector of Schools to appoint the fourth respondent, in absence of approval of his suspension, cannot be faulted. The order of suspension, admittedly, has elapsed and the termination order cannot operate without approval of the Board under Section 21 of the Act, 1982.
Under the circumstances, as of now, there is no reason to deprive the fourth respondent from holding the charge of officiating Principal, particularly, at the instance of the petitioner, who has no preferential right over the fourth respondent for appointment on the post of Principal. The petition is therefore dismissed. The dismissal of this petition would however not come in the way of the District Inspector of Schools to consider grant of approval to the order of suspension passed against the fourth respondent if the same has not already been disapproved. In case the order of suspension passed against the fourth respondent is approved or the order of termination is approved by the Board, the petitioner would have a fresh right to approach this Court again, if required."
Pursuant to the directions framed, the DIOS has now proceeded to pass the order impugned.
As noticed above, the DIOS has yet again failed to record any findings on the merits of the order of suspension which was passed by the Management. Notwithstanding the fact that an order of termination has subsequently come to be passed, it is not disputed before this Court that in view of the statutory provision which applies, the same shall not come into effect till such time as it is approved by the Board. In that sense, the order of termination is yet to come into force and operate against the respondent no.4. It remains inchoate and latent. It is in that backdrop that it was incumbent upon the DIOS to consider whether the order of suspension was liable to be approved or struck down. Having failed to do so, this Court is of the considered view that the DIOS has clearly failed to exercise the jurisdiction conferred upon him. In view of the aforesaid, the order impugned dated 03 September 2020 would be liable to be set aside and the matter remitted to the authority for fresh consideration.
Consequently, the writ petition is partly allowed. The impugned order of 03 September 2020 shall stand quashed and set aside only to the extent of the DIOS holding that the issue of suspension stood settled in light of the order of 13 September 2019. The DIOS shall consequently take a decision to either approve or disapprove the order of suspension.
The aforesaid exercise of consideration may be completed within a period of three weeks from today and shall be subject to whatever final decision may be taken by the Board on the order termination which is pending for consideration.
Order Date :- 8.1.2021 Vivek Kr.