JUDGMENT M. Katju and Umeshwar Pandey, JJ.
1. This writ petition and Writ Petition No. 31561 of 2002 are being disposed of by a common judgment.
2. Heard learned counsel for the parties.
3. In Writ Petition No. 14050 of 2003 the petitioner is challenging the validity of the impugned order dated 17.3.2003 vide Annexure-19 to the writ petition by which the Secretary, D.A.V. College, Muzaffarnagar (which is a degree college) has asked (he respondent No. 3 Dr. M. S. Kasna to resume duty on the post of Principal of the College. In Writ Petition No. 31561 of 2002 the petitioner has prayed for a mandamus directing the respondents not to interfere in his functioning as officiating Principal of the aforesaid College till a regularly selected candidate joins the post of Principal.
4. Thus, the short controversy involved in this case is whether the petitioner Sri Madan Gopal Mittal or the respondent No. 3 Dr. M. S. Kasna is entitled to function as Principal of D.A.V. College, Muzaffarnagar.
5. Regular selection to the post of Principal of a degree College is done by the U. P. Higher Education Service Commission under the U. P. Higher Education Service Commission Act. However, it has been held by a Division Bench decision of this Court that till a regular selection is held by the Commission, the senior most teacher in the College is ordinarily entitled to be the officiating Principal vide Dr. Vijay Laxmi Agarwal v. Vice-Chancellor, Mahatma Jyotiba Phoole Rohil Khand University, Bareilly and Ors., 2003 (2) AWC 1016 : 2003 ALJ 1582, There is no dispute that the petitioner is senior most teacher in the college and he is senior to Dr. M. S. Kasna. However, Dr. Kasna claims that he is the regularly selected candidate having been selected by the U. P. Higher Education Service Commission, and hence he is entitled to function as Principal, as the petitioner could only function till a regularly selected candidate was available.
6. The submission of learned counsel for the petitioner, however, is that Dr. M. S. Kasna was only selected against a leave vacancy of Principal and not against a permanent vacancy as stated in para 4 of Writ Petition No. 14050 of 2003. One Dr. B. K. Tyagi was the permanent Principal of the College who was appointed as Principal on 8.1.1987 and retired on 30.6.2002. It appears that Dr. B. K. Tyagi went on deputation as a member of U. P. Higher Education Service Commission in July, 1998 initially till 31.12.1999. Dr. B. K. Tyagi sought leave from the management and was initially granted leave up to 31.12.1999, and thereafter he sought further extension of leave till 30.6.2000 through his letter dated 11.12.1999 vide Annexure-1 to the petition. The management by its letter dated 15.12.1999 extended Dr. B. K. Tyagi's leave upto 30.6.2000 vide Annexure-2 to the petition, Dr. Tyagi then sought further extension of leave till 26.6.2001 and the management by its letter dated 6.7.2000 granted him further leave till 27.6.2001 vide Annexures-3 and 4 to the writ petition.
7. A requisition dated 15.7.1998 was sent by the College to the Commission for filling up the post of Principal which fell vacant due to the grant of leave to Dr. B. K. Tyagi. Copy of this requisition is Annexure-5 to the petition. It was against this requisition of 15.7.1998 that Dr. M. S. Kasna was selected as Principal by the Commission. However, Dr. Kasna did not join on the leave vacancy of Principal caused by Dr. B. K. Tyagi, and Dr. A. P. Tyagi being senior most teacher in the College joined as officiating Principal, and after his retirement Sri S. K. Gupta the senior most teacher joined. After Dr. B. K. Tyagi returned from deputation he look over charge of Principal from Sri S. K. Gupta on 27.6.2001 and continued functioning as regular Principal till 30.6.2002 when he retired.
8. The submission of learned counsel for the petitioner is that Dr. M. S. Kasna was appointed only against a leave vacancy and not permanent vacancy of the post of Principal. Leave vacancies for more than 10 months have to be filled in by the Commission, vide Writ Petition No. 42414 of 2002, Dr. Prakash Chandra Kamboj v. Director, Higher Education, decided on 15.9.2003.
9. In fact Dr. B. K. Tyagi having returned from the deputation of the U. P. Higher Education Service Commission again took over charge of Principal on 27.6.2001. Copy of the paper showing taking over charge of Principal by Dr. B. K. Tyagi from Sri S. K. Gupta is Annexure-5A to the petition. Certificate showing that Dr. B. K. Tyagi was relieved from the Commission as member of the Commission on 26.6.2001 is Annexure-5B to the petition. Thus, Dr. B. K. Tyagi remained on leave from July, 1998 to 26.6.2001, during which period he functioned on deputation as member of the U. P. Higher Education Service Commission.
10. The management of the college has now sent a requisition dated 19.2.2003 vide Annexure-6 to the petition to the Regional Higher Education Officer, Meerut stating that the post of Principal of the College has fallen vacant on the retirement of Dr. B. K. Tyagi and as such the same should be advertised and filled in. However, admittedly the U. P. Higher Education Service Commission has not yet made a selection of the Principal for the college.
11. Learned counsel for the petitioner consequently contended that the petitioner being senior most teacher in the college should be appointed as officiating Principal till the regular selection. In fact the petitioner started functioning as officiating Principal with effect from 1.7.2002 as stated in para 19 of the petition but thereafter the Director, U. P. Higher Education Service Commission issued a letter dated 23.7.2002 directing that the respondent No. 3 Dr. M. S. Kasna should be permitted to function as Principal vide Annexure-10. The management hence wrote a letter dated 15.7.2002 to the Director U. P. Higher Education Service Commission clarifying that Dr. M. S. Kasna had been appointed earlier on leave vacancy but had not joined, and now after the retirement of Dr. B, K. Tyagi the position has changed. Hence the management sought instruction from the Director in this connection. In reply the respondent No. 2 referred to his letter dated 23.7.2002 by which Dr. M. S. Kasna was directed to be appointed as Principal.
12. In para 28 of the petition it is stated that the management of the college has passed a resolution dated 4.7.2002 granting approval to the appointment of the petitioner as officiating Principal vide Annexure-14 to the petition.
13. From the facts of the case it is evident that Dr. Kasna had been selected by the Commission only on the leave vacancy of Principal since Dr. B. K. Tyagi had not retired. In fact Dr. Tyagi, after working for some time as member of the U. P. Higher Education Service Commission had returned to the College and rejoined as Principal and retired only on 30.6.2002. Hence the permanent vacancy on the post of Principal in the college arose only on 30.6.2002 and not earlier.
14. It follows that there has now to be a selection on the post of Principal on the permanent vacancy created by the retirement of Dr. B. K. Tyagi. Dr. M. S. Kasna has claimed that on the basis of his selection on the leave vacancy of Principal he should be treated as the regularly selected Principal. We do not agree. In fact when Dr. B. K. Tyagi rejoined on 27.6.2001 and took over charge of the post of Principal from Sri S. K. Gupta the appointment of Dr. M. S. Kasna on the leave vacancy of Principal automatically came to an end. Even earlier Dr. Kasna had not Joined. Hence Dr. M. S. Kasna has no right to function as Principal after 27.6.2001 until and unless he had been regularly selected as Principal by the Commission on the permanent vacancy which occurred on retirement of Dr. B. K. Tyagi on 30.6.2002. Admittedly. Dr. Kasna has not been selected as such by the Commission.
15. There is no dispute that regular selection on the post of Principal of the College on the permanent vacancy has not yet taken place. Hence in view of the Division Bench decision of this Court in Dr. Vijay Laxmi Agarwal v. Vice-chancellor, Mahatma Jyotiba Phoole Ruhil Khand University, Bareilly and Ors. (supra), the petitioner being senior most teacher in the institution has the right to function as officiating Principal till regular selection by the Commission on the permanent vacancy of Principal. The petition is, therefore, allowed. Impugned order dated 17.3.2003 is quashed. The petitioner shall be allowed to function as officiating Principal of the college till regular selection on the permanent vacancy of Principal of the College by the U. P. Higher Education Service Commission.