JUDGMENT R.K. Agrawal, J.
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the three petitioners, namely, the Committee of Management, Kisan Vidya Mandir College, Pansar, Saharanpur, through its Manager Jai Krit Singh ; Jai Krit Singh in his individual capacity as Manager and Tej Pal Singh who is the officiating Principal of the college, seek a writ, order or direction in the nature of certiorari quashing the order dated 3rd December, 2003, passed by the District Inspector of Schools, Saharanpur, respondent No. 2, filed as Annexure-8 to the writ petition, and other consequential reliefs.
2. I have heard Sri R.N. Singh, learned senior counsel, assisted by Sri V.K. Singh on behalf of the petitioners, learned standing counsel appearing on behalf of the respondent Nos. 1 and 2 and Sri K.P. Shukla appearing on behalf of the respondent No. 3.
3. The brief facts giving rise to the present petition are as follows :
In the district of Saharanpur, there is an intermediate college, known as Kisan Vidya Mandir College, situate at Pansar, (hereinafter referred to as "the College"). It is a recognised and aided college. One Hem Singh Pundir was functioning as the permanent Principal in the college. In the year 1996 he was elected as member of the U.P. Legislative Council. In the year 1997 he proceeded on long leave. A short term vacancy, i.e., leave vacancy had occurred and the committee of management decided to appoint an officiating Principal. The committee of management requested Rajendra Singh Rana, respondent No. 3, to act as the officiating Principal, which he declined. At that time, other senior teachers in the college also declined, whereupon the committee of management appointed Kadam Singh to perform the function of the officiating Principal in the College. This arrangement continued till Hem Singh Pundir joined after his leave expired. Again, in the year 1998 Hem Singh Pundir went on leave. This time also the respondent No. 3 declined to act as the officiating Principal. The committee of management appointed Satyapal Singh as the officiating Principal. He fell ill in July, 1999 and it became difficult for him to continue to discharge the function of the officiating Principal. In July, 1999, the committee of management requested the respondent No. 3 to act as the officiating Principal but he declined. The committee of management appointed Udai Pal Singh as the officiating Principal of the college. In the year 2001, Hem Singh Pundir again went on leave and this time too respondent No. 3 declined to act as the officiating Principal in the college. The committee of management appointed Udai Pal Singh as the officiating Principal. Hem Singh Pundir after his leave expired, came and Joined as Principal. He retired on 30th June, 2003. A question arose as to who should be appointed as the officiating Principal of the College. The committee of management taking into account the fact that the respondent No. 3 had declined to hold the post of the officiating Principal on earlier three occasions, appointed Tej Pal Singh, petitioner No. 3 as the officiating Principal in the college. The respondent No. 3 made an application/representation before the District Inspector of Schools on 30th June, 2003 alleging therein that he has been bypassed without any sufficient reason. When the District Inspector of Schools was not taking any decision on his representation, the respondent No. 3 approached this Court by filing Civil Misc. Writ Petition No. 40239 of 2003 which was disposed of vide judgment and order dated 11.9.2003 with a direction to the District Inspector of Schools to decide the representation in accordance with law after giving an opportunity to the Committee of Management and Tej Pal Singh, (presently the petitioner Nos. 1 and 3 respectively). This Court had given the following directions :
"The writ petition is disposed of with a direction to the District Inspector of Schools to decide the said representation in accordance with law after giving opportunity of hearing to the petitioner and the respondent Nos. 3 and 4 before considering the question of attestation of signature of the respondent No. 4, within a month from the date a certified copy of this order along with a copy of the said representation is filed before him. It is made clear that the Court has not adjudicated upon the claim on merits."
4. Pursuant to the direction given by this Court, the District Inspector of Schools, vide order dated 3rd December, 2003, has held that the respondent No. 3 being the seniormost Lecturer in the college, is entitled to act as the officiating Principal and the committee of management was directed to appoint the respondent No. 3 as the officiating Principal. The order dated 3rd December, 2003, is under challenge in the present writ petition.
5. Sri R.N. Singh, learned senior counsel, submitted that as the respondent No. 3 had declined to act as the officiating Principal on earlier three occasions when Hem Singh Pundir had gone on leave, the respondent No. 3 is not entitled and eligible for being appointed as the officiating Principal in the College. He relied upon a decision of this Court in the case of Satya Vir Singh v. District Inspector of Schools, Bulandshahr and Ors., 1995 (1) AWC 122 ; 1995 (25) ALR 1390 and of a Division Bench In the case of Smt. Sudesh Kakkar v. Regional Inspectress of Girls Schools and Ors. Special Appeal No. 141 of 1993, decided on 7.4.1994. He also relied upon the decision of the Hon'ble Supreme Court in the case of Dr. N.C. Singhal v. Union of India, AIR 1980 SC 1255. He further submitted that the respondent No. 3 has only a right to act as the officiating Principal in the college which is a very weak right and, in any event, since he is going to retire on 10th January, 2004, he is not entitled to be appointed as the officiating Principal. He also submitted that during the session 2003-2004 there were 95 working days out of which he attended the college on 55 working days and he was on leave for 40 days. Thus, he is not interested in the teaching and welfare of the institution and cannot be entrusted with the responsibility of an officiating Principal in the college.
6. Sri K.P. Shukla, learned counsel appearing for the respondent No. 3, however, submitted that the right to act as the officiating Principal is a statutory right conferred upon the seniormost lecturer/teacher in the college under Section 18 of the U.P. Secondary Education Services and Selection Board Act, 1982 and, therefore, that right cannot be taken away at the whims of the committee of management unless there are very strong reasons to supersede the seniormost Teacher. He further submitted that merely because the respondent No. 3 had declined to act as the officiating Principal in the leave vacancy on earlier three occasions, would not disentitle him to stake his claim when a substantive vacancy on the post of the Principal has arisen and the question of appointment of officiating Principal is to be considered. In support of his submission, he relied upon a decision of this Court in the case of Committee of Management, Jai Kisan Inter College, Basti and Ors. v. District Inspector of Schools, Basti and Ors., 1999 (4) AWC 3452 ; 2000 (1) LBESR 572 (All).
7. Having heard the learned counsel for the parties, I find that on earlier three occasions the officiating Principal was to be appointed in the leave vacancy. The respondent No. 3 had declined to hold the post. However, after the leave vacancy had come to an end and the Principal had joined, the question of officiation cannot be said to have continued. Declining to hold the post of officiating Principal on earlier three occasions cannot be held to disentitle a person from being considered on the post of the officiating Principal when a substantive vacancy has arisen. This Court in the case of Satya Vir Singh (supra), has held that once the seniormost teacher is permitted to function as the officiating Principal of the institution but he either declines or resigns after accepting the post, he cannot claim that right to function as the officiating Principal, In the aforementioned case this Court had relied upon the Division Bench decision in the case of Smt. Sudesh Kakkar, (supra). In the case of Satya Vir Singh (supra), the seniormost teacher was ordered to function as the officiating Principal of the college. He accepted the offer to function as the officiating Principal but he later on voluntarily submitted his resignation on 4th November, 1992. After he submitted his resignation, Satya Vir Singh who was the next seniormost teacher in the college, was appointed as the officiating Principal. He continued to function as the officiating Principal of the institution for about a year whereafter the seniormost teacher who had already resigned, submitted a representation to claim that he should be permitted to function as the officiating Principal. In this background, this Court held that the seniormost teacher having once acted as the officiating Principal and then voluntarily resigning from the post cannot stake his claim when the next seniormost person has been appointed as the officiating Principal. However, in the present case the situation is entirely different.
8. In the case of Smt. Sudesh Kakkar (supra) the facts were that the services of Smt. Subhadra Gupta, the regular Principal in Jain Kanya Pathshala Inter College, Muzaffarnagar, was terminated on 20th October, 1975. She challenged the termination order before Director of Education, U.P. The Joint Director of Education, Secondary, U.P., Allahabad, vide order dated 28th December, 1978, allowed the appeal and set aside the termination order. The order dated 28th December, 1978, was challenged by the committee of management by filing Civil Misc. Writ Petition No. 315 of 1979 in which this Court, vide order dated 27th February, 1979, stayed the operation of the order dated 28th December, 1978 on certain conditions. As the services of the regular Principal were terminated, a vacancy on the post of the Principal in the college occurred. The seniormost Lecturer Smt. Padam Lata Gupta was appointed as the officiating Principal who continued till her retirement upto 30th June, 1983. On 1st July, 1983, the charge of the post of Principal was given to the next seniormost teacher Smt. Kaushal Gupta. She continued to hold the charge of the officiating Principal till 29th June, 1989, when she expressed her inability to continue as the officiating Principal and requested the Authorised Controller to relieve her from the responsibility of the charge of the officiating Principal. The Authorised Controller vide letter dated 30th June, 1989 asked the seniormost teacher Smt. Saroj Gupta to take charge as the officiating Principal. She took charge as the officiating Principal and continued to function till her retirement on 10th July, 1991. Thereafter, the Authorised Controller asked the seniormost teacher Smt. Meera Gupta to officiate as Principal which she declined. Whereupon, the Authorised Controller vide letter dated 10th July, 1991 directed Smt. Sudesh Kakkar to take charge as the officiating Principal being the seniormost Teacher in the College. She took charge as the officiating Principal and her signatures were also attested. However, on 2nd June, 1992 the Director of Education, U.P., Lucknow, Issued an order directing the authorities to ensure that the statutory provisions of Regulation 2, Chapter II of the Regulations framed under the U.P. Intermediate Education Act, 1921, providing for the seniormost teacher in the highest grade should be appointed as the officiating Principal till the regularly selected Principal does not take charge, is ensured. The Regional Inspectress of Girls School, I Region, Meerut wrote a letter to the Administrator/Authorised Controller of the college that the seniormost teacher of the college should only be made the officiating Principal, which was replied by the Administrator vide letter dated 2nd November, 1992, that the principle of seniority has been followed in the appointment of the officiating Principal and after two seniormost Teachers--Smt. Kaushal Gupta and Smt. Meera Gupta, had declined to hold the post, the responsibility of the officiating Principal was entrusted to Smt. Sudesh Kakkar as far back as on 10th July, 1991 and she is continuing. However, the Authorised Controller uide order dated 16th February, 1993 appointed Smt. Meera Gupta as the officiating Principal, which was challenged by Smt. Sudesh Kakkar by means of a writ petition. The writ petition was dismissed by the learned single Judge on 2nd March, 1993. However, in special appeal, this Court has held as follows :
"If there was a vacancy on the post of the Principal of the college, the same had to be filled in accordance with the provisions of Chapter II Rule 2 of the Regulations framed under the Act and also in accordance with the provisions of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981. There is no dispute of the fact that the two seniormost teachers had conveyed their unwillingness to be appointed as officiating Principal and thus the appellant was rightly appointed as officiating Principal. The appointment of the appellant as the officiating Principal, therefore, was a valid exercise of power by the then Prabandh Sanchalak of the college.
The next question thus arises as to whether the circular of the Director of Education entitled the Administrator to exercise that power again. In our opinion, the circular of the Director of Education only clarified the legal position and did not ask that where the appointments for the purposes of filling the vacancies on the post of Principal by making officiating appointment had been validly made, the power should be exercised again. On 10.7.1991, when the petitioner was appointed officiating Principal Shrlmati Meera Gupta had informed the then Prabandh Sanchalak that she was not inclined to accept the responsibility of the post of Principal on account of her domestic problems. She having refused, the Prabandh Sanchalak rightly directed the petitioner to take charge as the officiating Principal as she was the next seniormost teacher in the Institution. The exercise of power by the Prabandh Sanchalak was not in violation of the circular issued by the Regional Inspectress of Girls School Inasmuch as Shrimati Meera Gupta having refused to accept the officiating appointment as Principal of the college could not claim right on the aforesaid post again. Supreme Court in the case of Dr. N.C. Singhal (supra) has held :
"..........if an employee eligible for promotion is offered a higher post by way of promotion, his refusal to accept the same would enable the employer, the Central Government in this case, to fill in the post by offering it to a Junior to the Government servant refusing to accept the post and in so acting there will be no violation of Article 16. Further, the Government servant who refuses to accept the promotion post offered to him for his own reasons cannot then be heard to complain that he must be given promotion post from the date on which the avenue for promotion opened to him."
There was thus no question of offering the post to Shrlmati Meera Gupta who had refused to accept the same. In our opinion, the Prabandh Sanchalak erred in interpreting the circular issued by the Director of Education as the appointment of the petitioner on 10th July, 1991, was in conformity with the provisions of Chapter II Rule 2 of the Regulations framed under the Act and also in accordance with the provisions of the U.P. Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981."
9. Thus, it would be seen that right from 10th July, 1991, Smt. Sudesh Kakkar was acting as the officiating Principal in the college after Smt. Meera Gupta had declined to hold the post. No benefit can be derived by the learned counsel for the petitioner from the aforesaid case as in the present case it is not In dispute that Hem Singh Pundir after availing long leave had joined on the expiry of the leave. The question in the present case is of appointment of the officiating Principal on the retirement of Hem Singh Pundir on 30th June. 2003 and, therefore, the seniormost teacher, i.e., the respondent No. 3, is to be considered for the said post.
10. In the case of Dr. N.C. Singhal (supra), the Hon'ble Supreme Court has held as follows ;
"...........if an employee eligible for promotion is offered a higher post by way of promotion, his refusal to accept the same would enable the employer, the Central Government in this case, to fill in the post by offering it to a junior to the Government servant refusing to accept the post and in so acting there will be no violation of Article 16. Further, the Government servant who refuses to accept the promotion post offered to him for his own reasons cannot then be heard to complaint that he must be given promotion post from the date on which the avenue for promotion opened to him."
11. The aforesaid decisions are not applicable to the facts of the present case Inasmuch as earlier the short term vacancy, i.e., the leave vacancy, was to be filled up by appointment of the officiating Principal under the Removal of Difficulties Order whereas the present vacancy is a substantive vacancy and is to be filled up under Section 18 of the U.P. Secondary Education Services and Selection Board Act, 1982, which specifically provides for appointment of seniormost teacher/ lecturer as officiating/ad hoc Principal in the college.
12. The post of Principal had fallen vacant on account of leave vacancy. It was a short term vacancy. When the leave vacancy of the officiating Principal occurred, the respondent No. 3 declined. This time when the substantive vacancy occurred, the committee of management did not think it proper to offer the same to the respondent No. 3. This Court in the case of Committee of Management, Jai Kisan Inter College (supra) has held that :
"Satya Vir Singh's case cannot be interpreted to mean that once a person has declined to officiate as ad hoc Principal and later on the vacancy again occurs he cannot then claim to be the officiating Principal merely because he had earlier declined. In my opinion, declining of the post is only for that particular period of time when the vacancy had arisen. It cannot be treated to amount to permanently declining the post for all times to come. Whenever the vacancy may again occur in future the seniormost teacher may again be considered for the post of Principal according to law."
13. The Principle laid down by this Court in the aforesaid case is squarely applicable to the present case.
14. Moreover, as held by this Court in the Full Bench decision in the case of Radha Raizada v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors., 1994 (3) UPLBEC 1551, the seniority plays a dominant rote in the matter of appointment to the post of the Principal/Head Master in the institution and ordinarily a seniormost teacher in the Lecturer grade is to be appointed by promotion to the post of the Principal and the criteria for ad hoc appointment to the post of the Principal is by promotion keeping in view seniority subject to rejection of unfit. In paragraphs 45 and 46 this Court held as follows ;
"45. Thus, seniority plays a dominant role in the matter of ad hoc appointment to the post of Principal/Head Master in the institution and ordinarily a seniormost teacher in the Lecturer grade is to be appointed by promotion to the post of Principal. However, there is another aspect of the matter that a Principal is not only required to teach the students but in fact he has to run the institution. He is captain of the team. A Principal is entrusted to enormous administrative responsibilities and for that, only a person who is fit to discharge such function, deserves to be appointed. In the case of Mohd. Naim (supra), and in the case of Tribhuwan Mishra v. District Inspector of Schools, Azamgarh (supra), two learned single Judges of this Court took the view that the criteria for ad hoc appointment to the post of Principal is by promotion on the basis of seniority subject to reject of the unfit. In view of the extra responsibilities entrusted to Principal, I am, therefore, of the view that the criteria for ad hoc appointment to the post of Principal is by promotion keeping in view the seniority subject to rejection of the unfit.
46. The learned single Judge in the case of Tribhuwan Mishra (supra), has laid down several guidelines as to when a seniormost teacher in lecturer's grade or L.T. grade as the case may be, can be superseded. The guidelines laid down are given in the case of Tribhuwan Mishra (supra), are being reproduced below ;
"14. However, in order to minimise the possibility of arbitrariness I am of the opinion that if the management wishes to supersede the seniormost teacher (who is qualified to be appointed Principal) it can only do so if (1) there are grave charges against him which are so serious that it will be wholly detrimental to the interests of the institution to appoint him ad hoc Principal or (2) he suffers from such a serious physical disability that he cannot properly perform the function of Principal. In either case the seniormost teacher must be given a show cause notice by the management stating the charges against him (or the physical disability) and stating that it proposed to supersede him. The hearing to be given by the management need not be a personal hearing, but copies of any material sought to be relied upon (whether contained in the service book or elsewhere) must be supplied in advance so as to enable teacher to give his reply explanation. After considering the teacher's reply the Management can supersede him but only by a reasoned order, and such reasons can be scrutinised by the High Court under Article 226 of the Constitution. If the second seniormost teacher is also sought to be superseded, then the same procedure must be followed in respect of him also, and so on.
16. The submission that the respondent No. 3 is going to retire on 10th January, 2004 and, therefore, it would not be in the interest of the institution to appoint him as the officiating Principal, is also devoid of any substance. The respondent No. 3 had made a representation on 30th June, 2003, before the District Inspector of Schools for redressal of his grievance. The matter was kept pending by the District Inspector of Schools for about two months and only after this Court passed the order on 11th September, 2003, that the District Inspector of Schools decided the matter after about three months. Thus, about three months have been taken by the authorities in deciding the dispute despite an order passed by this Court to decide the matter within a month. The respondent No. 3 cannot be made to suffer on account of inaction of the authorities.
17. So far as the contention that the right to act as the officiating Principal which is a very weak right, is concerned, it may be mentioned here that the right is a statutory right provided under Section 18 of the U.P. Secondary Education Services and Selection Board Act, 1982. It is not a weak right at all as the post of the officiating/ad hoc Principal, matters a lot to teachers working in a college.
18. So far as the question that the respondent No. 3 had attended the college only for 55 days out of a total of 95 days and he is not interested in teaching is concerned, it may be mentioned here that it is not in dispute that the committee of management had sanctioned leave of 40 days, comprising 8 days of casual leave, 23 days of earned leave and 9 days of medical leave. Since the respondent No. 3 was on leave for 40 days in this session, it cannot be said that he is not taking interest in the affairs of the college or students. It is not a case of unauthorised leave. The ground taken by the committee of management in not appointing the respondent No. 3 as officiating Principal being wholly irrelevant, the action of the committee of management in bypassing the respondent No. 3, cannot be sustained.
19. In view of the foregoing discussion, there is no infirmity in the order passed by the District Inspector of Schools. The writ petition lacks merit and is dismissed.