JUDGMENT
1. This writ petition deals with the interpretation of Statute 13.20 of Deen Dayal Upadhyaya University, Gorakhpur (the University). The question is whether the senior most teacher in an affiliated degree college is entitled to continue as officiating principal under all circumstances or can he be relieved of the charge on the ground that an inquiry is contemplated against him regarding his conduct as the officiating principal.
Facts :
2. The permanent Principal of Hira Lal Ram Niwas Post Graduate College, Khalilabad district Sant Kabir Nagar (the College) retired and a vacancy arose on 30.6.2003. This College is affiliated to the University. Sri T.N. Upadhya is the senior most teacher in the College. Sri Upadhya did not accept the post of officiating principal of the College. The petitioner is the second senior most in the College and he was appointed as officiating principal on 1.7.2003. He is working since then. There are some complaints against the petitioner regarding his working as the officiating principal. In this regard an inquiry committee was constituted on 14.10.2004 by the Committee of Management to give its report within three months. In view of the inquiry, the petitioner was relieved as officiating principal and in his place Dr. Arjun Ram Tripathi was appointed as the officiating principal. Hence, the present writ petition.
Submissions of the petitioner :
3. We have heard Counsel for the parties. Counter and rejoinder affidavits have been exchanged and with the consent of the parties, the writ petition is being finally decided at this stage. The Counsel for the petitioner has raised following submissions before us :
I. The use of the word "shall" in the Statute 13.20 shows that it is mandatory and the petitioner is entitled to continue even if any inquiry, is initiated against him.
II. The petitioner has filed the Writ Petition No. 26937 of 2004 claiming salary of the principal. The committee of management has filed a counter-affidavit in this writ petition. There is neither any allegation of mismanagement in the counter-affidavit in W.P. No. 26937 of 2004 nor in the certificate dated 14.1.2004 given by the Committee of Management. The inquiry is malafide and purposive.
III. The petitioner may be suspended but cannot be relieved as the officiating Principal.
IV. The impugned order is null and void as no opportunity has been afforded to the petitioner.
1st Submission : Shall Mandatory--but the Officiating Principal can be relieved :
4. Statute 13.20 of the University is as follows :
"When the office of the Principal of an affiliated college falls vacant, the management may appoint any teacher to officiate as Principal for a period of three months or until the appointment of a regular principal, whichever is earlier. If on or before the expiry of the period of three months any regular principal is not appointed, or such a principal does not assume office, the senior most teacher in the college shall officiate as principal of such college until a regular principal is appointed."
5. The aforesaid Statute governs appointment of the officiating principal in absence of appointment of the permanent principal. It contemplates two different periods, the appointment for the first three months and the period thereafter. It gives discretion to the committee of management to appoint any teacher to officiate as the principal for the period of three months. In case the vacancy continues after that period, then the senior most teacher is to officiate as principal of the College. The Statute uses 'may' for appointment for the first three months and 'shall' for subsequent appointment. The use of two different words explains the intention. For the first three months, there is discretion with the committee of management but after three months there is no discretion, the senior most teacher has to be appointed. This was also so held in a Division Bench decision of our Court in A.P. Singh v. State of U.P. and Ors., 2001 (1) UPLBEC 638. But, is the person officiating a post, entitled to officiate in any circumstance ? Even a permanent principal can be suspended. Does the officiating principal become more permanent than the permanent appointment ?
6. There are complaints against the petitioner. They are indicated in sub-paragraphs of paragraph 10 of the counter-affidavit. They are indicated in Endnote-2. These sub-paragraphs are denied in the rejoinder affidavit. But the correctness of these complaints is not to be judged in this writ petition but is to be seen first by the inquiry committee. The Committee of Management has submitted that no inquiry can be conducted against the petitioner if he continues as the principal of the College. It is in view of this that they have relieved the petitioner from charge of officiating principal till completion of the inquiry. Considering the complaints against the petitioner, it cannot be said that this submission is unfounded. The petitioner has been relieved till pendency of the inquiry ; this does not mean that the petitioner has been removed as the principal. This order is akin to suspension and not to removal. There is nothing in the Statute 13.20 that mandates that even if an inquiry is initiated against the officiating principal, then he has to be continued.
7. The Counsel for the petitioner cited Dr. Vijay Laxmi Agarwal v. VC MJP Rohilkhand University and Ors. (the Vijayalaxmi case) and submitted that the impugned order is illegal as no opportunity was afforded. However, this case partly supports the respondents and is distinguishable on facts.
8. Our Court in the Vijayalaxmi case after considering the other decisions held, 'while ordinarily the senior most teacher should be appointed Principal of a Degree College, till regular selection, in exceptional circumstances where it would not be in the interest of the institution to appoint the senior most teacher, he can be superseded and the next after him in seniority can be appointed'.
9. The aforesaid enunciation of law shows that even senior most teacher may be ignored in case it is in the interest of the College. Here, an inquiry has been initiated against the petitioner, it is not in the interest of the institution to continue the petitioner as officiating principal during pendency of these proceedings.
2nd Submission : Inquiry--Not Malafide
10. The Writ Petition No. 26937 of 2004 is for a direction to the State Government to give salary of principal to the petitioner. It does not relate to the work and conduct of the petitioner. In case nothing is mentioned regarding any complaint against the petitioner in the counter-affidavit filed by the committee of management then no adverse inference can be drawn. So far as the certificate dated 14.1.2004 is concerned suffice to say it was given nine months ago. This does not mean that even today there is no complaint against the petitioner.
11. In the present case the committee of management has appointed the petitioner for the first three months where there was discretion to appoint any one as an officiating principal. They have continued with him for more than a year. There is nothing on the record to suggest that action is malafide. The order cannot be faulted on the ground of malafides.
3rd Submission : Opportunity before Relieving during inquiry--Not Necessary
12. It is correct that in the Vijayalaxmi case our Court further held that opportunity is necessary and in the case no opportunity was given to the petitioner before the impugned order was passed. However, the facts of the Vijayalaxmi case are different ; it was the case of removal. This is not a case of removal. It merely takes the charge of officiating principal from the petitioner during the pendency of the inquiry against the petitioner. It is temporary ; during the inquiry proceeding ; and is akin to suspension. In case the petitioner is discharged in the inquiry then he has to be continued as officiating principal again.
4th Submission : Suspension--Not Necessary
13. The Counsel for the petitioner submitted that in case there is any inquiry against the petitioner then he can be suspended, but he cannot be asked to handover the charge. The petitioner is not holding any substantive post. He was merely officiating as principal. The inquiry is being conducted for his conduct as the officiating principal and not on his conduct as a teacher. In these circumstances, the action of the management to relieve the petitioner from the post of officiating principal rather than to suspend him cannot be faulted.
14. We have not voided the impugned order however the senior most teacher cannot be deprived of officiating principal merely on the pretext of an inquiry. This committee of management has mentioned that the inquiry would be completed in three months. In view of this, we dispose of the petition with direction that the inquiry be completed in three months and a decision may be taken in accordance with the finding. In case the inquiry is not completed in three months then the petitioner would be given back the charge of the officiating principal. However, the inquiry in that event may still continue.
Conclusion :
15. Our conclusions are as follows :
(a) For the first three months, there is discretion with the committee of management to appoint any teacher as the officiating principal but after three months there is no discretion : the senior most teacher has to be appointed as the officiating principal.
(b) There is nothing in the Statute 13.20 that mandates that even if an inquiry is initiated against the officiating principal, then he has to be continued as such an officiating principal may be relieved during inquiry if his continuance is not in the interest of the institution.
(c) Opportunity of hearing is necessary only in the case of removal and not in the case where the officiating principal is relieved during pendency of an inquiry.
(d) The inquiry is being conducted against the petitioner for his conduct as the officiating principal and not on his conduct as a teacher. In these circumstances, the action of the management to relieve the petitioner from the post of the officiating principal rather than to suspend him cannot be faulted.
(e) The senior most teacher cannot be deprived of acting as the officiating principal merely on the pretext of an inquiry.
16. In view of our conclusions, we dispose off the writ petition with observations and directions mentioned in paragraph 14 of this judgment.
Order Accordingly.
Endnote 1 : Sri P.S. Baghel appeared for the petitioner. Sri U.N. Sharma, Sr. Advocate, Sri Rohit Pandey, Ms. Sunita Agrawal, Sri N.L. Tripathi, Sri D.N. Tripathi and the Standing Counsel appeared for the respondents.
Endnote 2 : The complaints against the petitioner as indicated in paragraph 10 of the counter-affidavit are as follows :
(i) The petitioner is guilty of committing financial irregularity by paying salary of Dr. Vinod Kumar Singh, lecturer (His Son) and Dr. Shivendra Bahadur Singh, lecturer from the account of Self Finance Salary Fund while they are appointed under the Additional Teaching Arrangement (ATA), which is a Government aided scheme, to make their services permanent on the self finance scheme.
(ii) A letter dated 4.10.2004 was given to the petitioner by the Secretary, Committee of Management asking the petitioner that some of the papers were bearing the seal of principal and some were bearing the seal of the officiating principal and it was directed that office should ensure that all the papers must bear the seal of officiating principal and not of the principal.
(iii) Inspite of the clear direction of the committee of management the petitioner kept on issuing the cheques under the seal of principal and thereby committed disobedience of the orders. A letter dated 9.10.2004 was given by the accountant of the college to the Secretary, Committee of Management informing that the officiating principal has passed an order that all the bills, voucher and the cheque book would be sealed in the name of principal from today.
(iv) A reply was called from the petitioner by the committee of management by its letter dated 11.10.2004 that, being an officiating principal, why he has issued the cheques under the seal of principal of the College.
(v) The petitioner was also found guilty of misconduct of direct correspondence with the Director of Higher Education, University and State Government without informing the committee of management and the records of the correspondence was called by the committee of management, but same was not made available by the petitioner.
(vi) The petitioner has also not followed the order dated 1.10.2004 of the committee of management of removing the two security guards namely Sri Badri Nath Tiwari and Sri Rajendra Singh from the security arrangement and allowed them to continue in service which is clearly evident from the attendance register of the College.
(vii) That in order to cover his irregularities and misconducts the petitioner is not making available to the management all the relevant papers and audit reports of the college. A letter dated 30.9.2004 was given to the petitioner to this effect by the committee of management.
(viii) On 11.10.2004 a surprise inspection was made by the Secretary, Committee of Management and it was found that a number of irregularities being conducted in the college which is clear evidence of disregard of the utmost object and purpose of the College.
(ix) There are several incidents of disobedience of the orders and of misconduct of the petitioner as officiating principal and on calling for the explanation, he abstained from his accountability.