JUDGMENT R.K. Agrawal, J.
1. Since both these writ petitions relate to the appointment as officiating Principal in Adarsh Inter College, Sarai Akil, district Kaushambi, they have been heard together and are being decided by the common judgment.
2. Civil Misc. Writ Petition No. 13463 of 2003 has been filed by Shanker Dayal Tripathi seeking a writ, order or direction in the nature of certiorari quashing the order dated 12th March, 2003 passed by the District Inspector of Schools, Kaushambi, respondent No. 2 filed as Annexure-11 to the writ petition and the order dated 20th March, 2003 passed by the Joint Director of Education. IV Region. Allahabad, filed as Annexure-12 to the writ petition and other consequential reliefs whereas Civil Misc. Writ Petition No. 46966 of 2003 has been filed by Jai Shanker Dubey seeking a writ, order or direction in the nature of certiorari quashing the order dated 29th August, 2003 passed by the District Inspector of Schools, Kaushambi, respondent No. 3 filed as Annexure-24 to the writ petition and other consequential reliefs.
3. Briefly stated, the facts giving rise to Civil Misc. Writ Petition No. 13463 of 2003 are as follows :
In the district of Kaushambi there is an Intermediate College, known as Adarsh Inter College (hereinafter referred to as "the College"). It is a recognised College and is governed by the provisions of the U.P. Intermediate Education Act, 1921. It is an aided institution and the provisions of the U.P. High Schools and intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 are applicable. The Committee of Management of the College has been superseded and an Authorised Controller has been appointed to look after and manage the affairs of the College. In the seniority list of teachers published by the College, Sada Nand Lal Srivastava has been placed at Serial No. 1, Jai Shanker Dubey at Serial No. 2 and Shanker Dayal Tripathi, i.e., the present petitioner, at Serial No. 3. Sri Onkar Nath Misra, Principal of the College, died on 19th November, 2002 and, therefore, a short term vacancy on the post of the Principal arose. An ad hoc/officiating Principal was sought to be appointed under the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as "the 1982 Act"). The Authorised Controller notified the vacancy to the U.P. Secondary Education Services Selection Board in accordance with Sub-section (1) of Section 10 of the 1982 Act. As the U.P. Secondary Education Services Selection Board could not make any selection, the District Inspector of Schools vide letter dated 10th January, 2003 asked the Authorised Controller to send the name of the seniormost Teacher for being appointed as acting Principal in order to avoid any administrative problem. The Authorised Controller forwarded the name of Sada Nand Lal Srivastava for being designated as officiating Principal in the College Jai Shanker Dubey also gave an application before the District Inspector of Schools claiming his right to be appointed as officiating Principal. The District Inspector of Schools, vide letter dated 20th January, 2003, referred the matter to the Joint Director of Education. During the pendency of the dispute as to who should be designated as officiating Principal, the District Inspector of Schools vide order dated 22nd February, 2003 directed the Authorised Controller to appoint somebody else as officiating Principal as the dispute between the two seniormost teachers is pending. The Authorised Controller recommended the name of the present petitioner for being appointed as purely officiating Principal. The District Inspector of Schools approved the appointment of the present petitioner as purely officiating Principal and attested his signatures on 28th February 2003. It may be mentioned here that the Authorised Controller has recommended the name of the present petitioner for appointment as officiating Principal looking to the urgent requirement. It appears that vide order dated 12th March, 2003, the District Inspector of Schools cancelled the approval granted by him to the appointment of the petitioner as officiating Principal. It may be mentioned here that Jai Shanker Dubey, respondent No. 4 in the present petition, approached this Court by filing Civil Misc. Writ Petition No. 9516 of 2003 with a prayer that a writ of mandamus be issued directing the Joint Director of Education to decide his representation, which was disposed of vide the judgment and order 28th February, 2003 with a direction to decide his representation. Pursuant to the aforesaid direction, the Joint Director of Education vide order dated 20th March, 2003 had decided the representation and had found that Sada Nand Lal Srivastava is continuing on the basis of the benefit of the session from 2nd July, 2002 and Jai Shanker Dubey being the senior-most Lecturer is entitled for being appointed as officiating Principal. The order dated 12th Mach, 2003 passed by the District Inspector of Schools and 20th March, 2003 passed by the Joint Director of Education are under challenge in the present writ petition on the ground that the order dated 12th March, 2003 had been passed without giving any show cause notice or any opportunity of hearing by the District Inspector of Schools. The order dated 20th March, 2003 is being challenged on the ground that that the said order has been passed without giving any show cause notice or any opportunity of hearing to the petitioner and further it is the sole discretion of the Committee of Management, in the present case the Authorised Controller to see the suitability and desirability of the seniormost teacher to be appointed as officiating Principal in the college and in the absence of any resolution by the Committee of Management (Authorised Controller), the Joint Director of Education could not have accepted the claim of Jai Shanker Dubey only on the ground that he is the seniormost Lecturer in the College.
4. In Civil Misc. Writ Petition No. 46966 of 2003 the facts are that after the order dated 20th March, 2003 was passed by the Joint Director of Education, the District Inspector of Schools attested the signatures of Jai Shanker Dubey (the petitioner herein) vide order dated 20th March, 2003. The Authorised Controller was subsequently changed by the District Inspector of Schools vide order dated 26th March, 2003 and now Sri Mata Pher, Sub-Divisional Magistrate, Chail, Allahabad was appointed in place of Sri Ram Singh. The petitioner started functioning and it is alleged that the salary bills for the months of February to August, 2003 were sent under his signatures. The Authorised Controller initiated some enquiry against the petitioner but vide order dated 18th April, 2003 it has been dropped. It may be mentioned here that this Court had passed an interim order on 1st April, 2003 in Civil Misc. Writ Petition No. 13463 of 2003, filed by Shanker Dayal Tripathi, wherein the operation of the orders dated 12th March, 2003 and 20th March, 2003 were stayed. The writ petition was directed to be listed in the week commencing 12th May, 2003 and the interim order was made operative till then. A Special Appeal No. 236 of 2003 was filed challenging the order dated 1st April. 2003 but this Court declined to interfere in the discretion exercised by the learned single Judge. The Special Appeal was dismissed vide order dated 10th April, 2003 with a direction that the writ petition itself be expeditiously disposed of finally. According to the petitioner, the interim order dated 1st April, 2003 was not extended and the application filed by Shanker Dayal Tripathi was rejected on 19th May, 2003. The second application filed on 20th May. 2003 was also rejected. However, another application was filed on 27th May, 2003 in which the interim order was extended till 8th July, 2003. On 8th July, 2003, the interim order was not extended and the application was rejected. In the meantime, according to the petitioner, the District Inspector of Schools vide order dated 28th May, 2003 had directed the petitioner to continue as Principal in the College, A Special Appeal No. 554 of 2003 was fifed against the order dated 8th July, 2003 and this Court vide order dated 14th July, 2003 while directing the case to be listed on 28th July, 2003, directed for continuance of the interim order dated 1st April, 2003 till then. The Special Appeal is still pending. The said order passed by the Division Bench was extended on 28th July, 2003. In the meantime, the District Inspector of Schools issued notice dated 22nd August, 2003 which was received by the petitioner on 25th August, 2003. Vide order dated 29th August, 2003, the District Inspector of Schools has passed an order that, pursuant to the interim order passed by this Court in Special Appeal No. 554 of 2003, Shanker Dayal Tripathi is entitled to continue as officiating Principal. The order dated 29th August, 2003 is under challenge in the present writ petition. The ground of challenge is that this Court had rejected the application for extension of the stay order on 19th May, 2003, 20th May, 2003 and 8th July, 2003 and, therefore, the interim order passed on 1st April, 2003 was no longer in existence and further the order dated 29th August, 2003 has been passed without giving a reasonable opportunity of hearing as the petitioner was not allowed to put up his case.
5. I have heard Sri C.B. Yadav, learned counsel for Shanker Dayal Tripathi, Sri Ashok Khare, learned senior counsel, assisted by Sri S.C. Dwivedl on behalf of Jai Shanker Dubey and Sri A.K. Gupta, Teamed counsel appearing for the Authorised Controller.
6. Sri C.B. Yadav, learned counsel submitted that Sada Nand Lal Srivastava had retired and was in service following the benefit of the session, he could not have been appointed as officiating Principal in the College. Even though Jai Shanker Dubey is senior to him, yet on account of the adverse entry and the order dated 9th November, 1997 passed by the Secretary, Madhyamik Shiksha Parishad debarring him from performing all remunerative works of the Parishad including the invigilation duty for a period of five years, he was not suitable to discharge the function of officiating Principal in the College. He further submitted that an entry of doubtful integrity was also given by the then Principal of the College. He had torn the page containing the adverse entry in the service book for which an enquiry has been instituted and, thus, there was no question of Jai Shanker Dubey being appointed as officiating Principal in the College, He also invited the attention of the Court to the report dated 18th April, 2003 submitted by the Clerk of the College to the Authorised Controller in which it has been stated that the claim of Jai Shanker Dubey that he was given excellent entry by the Principal, is forged as the signature of Sri Onkar Nath Misra, the then Principal is forged. Thus, he submitted that Jai Shanker Dubey is not entitled to be appointed as officiating Principal. He relied upon the following decisions :
(i) Radha Raizada and Ors. v. Committee of Management, Vidyawati Darbari Girls Inter College and Ors., (1994) 3 UPLBEC 1551 (FB) ;
(ii) Sanchalakshri and Ors. v. Vijay Kumar Ra, AIR 1999 SC 578 ; and
(iii) Mahant Prasad Singh v. District Inspector of Schools. Fatehpur and Ors., 2002 (1) AWC 859.
7. Sri A.K. Gupta, the learned counsel appearing for the Authorised Controller, adopted, the arguments of Sri C.B. Yadav and submitted that there are serious allegations against Jai Shanker Dubey and, therefore, he is not a fit person to be appointed as officiating Principal.
8. Sri Ashok Khare, learned senior counsel appearing for Jai Shanker Dubey submitted that on 19th November, 2002, the vacancy on the post of the Principal had occurred. Sada Nand Lal Srivastava was not eligible for being appointed as officiating Principal as he had already retired and was continuing till the end of the session and, therefore, could not have held the post of officiating Principal. He being the seniormost teacher in the College, which is not being disputed even by Shanker Dayal Tripathi, ought to have been appointed as officiating Principal. Even the Authorised Controller did not find anything adverse against him when he intimated the District Inspector of Schools that as there is a dispute between the first and the second seniormost teachers of the College as to who should be appointed as officiating Principal and it is pending before the Joint Director of Education, the third seniormost teacher, namely Shanker Dayal Tripathi be appointed as officiating Principal in the College. The District Inspector of Schools had also endorsed the words "NITANT KARYAWAHAK" while attesting the signature of Shanker Dayal Tripathi. According to Sri Khare, once the Joint Director of Education had decided the dispute in favour of Jai Shanker Dubey, appointment of Shanker Dayal Tripathi as officiating Principal came to an end. Thus, Shanker Dayal Tripathi cannot claim any right to continue as officiating Principal. He also relied upon the Full Bench decision of this Court in Radha Raizada's case (supra) wherein this Court has held that the seniormost teacher cannot be bypassed while considering the appointment of officiating/ad hoc Principal and he should be informed about the grounds on which he is being bypassed and given an opportunity to represent before the management. This having not been done by the Authorised Controller, it would be presumed that the Authorised Controller was not bypassing the claim of Jai Shanker Dubey on account of unsuitability and, on the other hand, he had only referred the matter relating to the dispute between the first and the second seniormost teachers for making appointment of the third seniormost teacher in the College as officiating Principal. According to him, the report of the clerk regarding forged signature on the excellent entry in the service record and tearing of pages of service book has been manipulated by Shanker Dayal Tripathi after he became the officiating Principal of the College just to forestall his claim on the post of officiating Principal. He further submitted that the Authorised Controller had himself found that all the pages of the service book in tact and no pages from it had been torn. The adverse entry given by the Principal on 3rd January, 1998 is pasted in the service book and the matter has been closed vide order dated 18th April, 2003. Thus, it is submitted that there is nothing adverse against Jai Shanker Dubey which may disentitle him to be appointed as officiating Principal. He also submitted that Jai Shanker Dubey had been selected by the U.P. Secondary Education Services Selection Board, Allahabad for the post of the Principal in an Intermediate College where on account of some interim order passed by this Court at the instance of the ad hoc Principal, he has not been allowed to join and further a period of five years have elapsed after the order dated 19th November, 1997 has been passed by the Secretary, Madhyamik Shiksha Parishad and now he has been allowed to do the invigilation and other duties. Thus, Jai Shanker Dubey is entitled to be appointed as officiating Principal.
9. Having heard the learned counsel for the parties, I find that it is not in dispute that on 19th November, 2002, a post of Principal in the College fell vacant on account of death of the then Principal, Sri Onkar Nath Misra. There was a dispute between Sada Nand Lal Srivastava and Jai Shanker Dubey as to who should discharge the function as officiating Principal. The matter was pending before the Joint Director of Education, Allahabad. In such a circumstance, when the Authorised Controller was called upon to send the name of the seniormost teacher for being appointed as officiating Principal, he recommended the name of Shanker Dayal Tripathi, the third seniormost teacher to be appointed as officiating Principal in the College. The District Inspector of Schools while attesting the signature of Shanker Dayal Tripathi mentioned the words "NITANT KARYAWAHAK", which means purely officiating. The Joint Director of Education vide order dated 20th March, 2003 had held Jai Shanker Dubey to be entitled for the post of officiating Principal as Sada Nand Lal Srivastava had retired and was continuing in service till the end of the session. Not only this Sada Nand Lal Srivastava gave his consent in favour of Jai Shanker Dubey. Thus, the appointment of Shanker Dayal Tripathi as officiating Principal could not have continued after 20th March, 2003 when the Joint Director of Education had upheld the claim of Jai Shanker Dubey. Uptill 20th March, 2003 there was no adverse material which was being pressed into service for defeating the claim of Jai Shanker Dubey. It appears that after Shanker Dayal Tripathi became the officiating Principal on 28th February, 2003, in order to defeat the claim of Jai Shanker Dubey, the story of tearing of the page containing adverse entry and forged in the service book regarding excellent entry was set up, which, for the first time was intimated, vide letter dated 18th April, 2003, by the Clerk to the Authorised Controller. The Authorised Controller had found that all the pages in the service book are intact and the adverse entry given by the Principal is already pasted in the service book and the matter has been closed. The Secretary, Madhyamik Shiksha Parishad had passed an order on 19th November, 1997 restraining Jai Shanker Dubey from doing any remunerative work in the Parishad including invigilation duty for a period of five years, which period is already over. The question is as to whether Jai Shanker Dubey is entitled to be appointed as officiating Principal or Shanker Dayal Tripathi who is the next seniormost teacher.
10. In the case of Radha Raizada (supra), a Full Bench of this Court has held that the ad hoc appointment to the post of the Principal is by way of promotion keeping in view the seniority subject to rejection of unfit. It has approved the guidelines laid down by this Court in the case of Tribhuwan Mishra v. District Inspector of Schools, Azamgarh, 1992 (2) AWC 1099 : (1992) 1 UPLBEC 716. The Full Bench has held as follows :
"45. Thus, seniority plays a dominant role in the matter of ad hoc appointment to the post of Principal/Headmaster in the institution and ordinarily a senior-most 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 reach 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 rejection 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 functions 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.
15. If the vacancy occurs due to retirement, or a resignation to take effect after two months, then this entire process should begin by giving a show cause notice at least two months prior to the occurrence of the vacancy and it should be completed within two months. In other circumstances the show cause notice must be given as soon as the vacancy occurs, or its future occurrence becomes known, and the process must be completed within two months for which period the second seniormost teacher can be allowed to officiate."
These guidelines, according to me, is a correct guideline in order to keep check on the management while superseding a seniormost teacher on the ground that he is unfit. Besides these guidelines, one thing may be kept in mind that the reject of unfit should not be utilised by the management to supersede a seniormost teacher. The charge against such teacher must be valid and real one and has to be objectively demonstrated by the management. An unwilling management of an institution is not entitled to supersede a seniormost teacher merely by awarding an adverse entry in his character roll. A seniormost teacher can be found unfit only when persistent defaults are reflected in his character roll in span of five to ten years. In view of the foregoing discussions, I am of the view that the vacancy in the post of Principal of an Intermediate College is required to be filled in by the seniormost teacher of the institution in Lecturers grade and in the case of High School by seniormost teacher of the institution in the trained graduate grade on the basis of seniority subject to rejection of the unfit. In case of such promotion no approval of the District Inspector of Schools is required and only intimation to the District Inspector of Schools of such appointment is sufficient."
11. The aforesaid Full Bench has been consistently followed by this Court. In the case of Mahant Prasad Singh (supra), this Court has held that ordinarily the seniormost person may expect that he would be appointed but certainly not, if he is not competent.
12. In the case of Sanchalakshri (supra), the Hon'ble Supreme Court has held as follows :
"6. ................ A teacher is expected to maintain higher standard of honesty and integrity in view of the position he holds. He committed acts of forgery either himself or with help of some other person by forging signatures of the District Education Officer, the Auditor and the Sanchalak and Principal of Pallavi Vidyalaya. Even after he was called upon by the School Management to disclose names of the persons who had put their signatures in the service book, he had stated that it was signed by the District Education Officer, Mr. S.M. Parmar. That statement was false to his knowledge. It was on the basis of the forged endorsements that he wanted to get payment as per the revised pay scale regularized. Respondent No. 1 has thus not only committed a serious misconduct but also a serious criminal offence. If under such circumstances the punishment of dismissal was imposed by the School Management, it cannot be said that it was shockingly disproportionate to the gravity of the misconduct."
13. Applying the principles laid down by the Full Bench of this Court in Radha Raizada's case to the facts of the present case, I find that the Authorised Controller had not declined to consider the name of Jai Shanker Dubey on account of being unfit. His name was not recommended as there was an on-going dispute between the two seniormost teachers, which was pending before the Joint Director of Education and during the pendency of the dispute, he recommended the name of the third seniormost teacher, Shanker Dayal Tripathi, for appointment as officiating Principal as "NITANT KARYAWAHAK", which was also accepted by the District Inspector of Schools. No doubt, if Jai Shanker Dubey is not competent or unfit to act as officiating Principal, he cannot be allowed but this decision is to be taken by the Committee of Management, at present the Authorised Controller. It is not open to Shanker Dayal Tripathi to question the suitability of Jai Shanker Dubey - Since at present the Authorised Controller has not taken any decision regarding the suitability of Jai Shanker Dubey, it would be appropriate and in the interest of the institution also that he should consider the suitability and desirability of appointing Jai Shanker Dubey as officiating Principal of the College, keeping in mind the principles laid down by the Full Bench of this Court in Radha Raizada's case.
14. The decision of the Hon'ble Supreme Court in the case of Sanchalakshri would not be applicable in the present case in as much as in the present case the question of punishment does not arise. What is the effect of the adverse entry and the order passed by the Secretary, Madhyamik Shiksha Parishad is yet to be considered by the Authorised Controller while considering the question of appointment of Jai Shanker Dubey as officiating Principal in the College.
15. In view of the foregoing discussions, Civil Misc. Writ Petition No. 13463 of 2003 is partly allowed. The order dated 12th March, 2003 passed by the District Inspector of Schools, Kaushambi is set aside. The order dated 20th March, 2003 passed by the Joint Director of Education in so far as it directs the handing over charge of officiating Principal to Jai Shanker Dubey is also set aside. The Authorised Controller is directed to consider the desirability/suitability of Jai Shanker Dubey to be appointed as officiating Principal. If he comes to the conclusion that he is not suited for the post, he shall give a notice along with all the materials to Jai Shanker Dubey and after calling for his reply, decide the matter within a month from the date a certified copy of this order is filed before him. Till the Authorised Controller decides the matter, the order dated 28th February, 2003 passed by the District Inspector of Schools shall remain in operation.
16. Since the order dated 29th August, 2003 passed by the District Inspector of Schools, Kaushambi impugned in Civil Misc. Writ Petition No. 46966 of 2003 has been passed to give effect to the Interim order dated 14th July, 2003 passed by this Court in Special Appeal No. 554 of 2003, no interference is called for. Civil Misc. Writ Petition No. 46966 of 2003 is, therefore, misconceived and is dismissed.