- (1.) THIS Special Appeal has been filed by Rajendra Kumar Singh against the interim order dated 25th May, 2011 passed by a learned Judge of this Court in Civil Misc. Writ Petition No. 28500 of 2011 that had been filed by Mukti Nath Tiwari, Officiating Principal of the Udit Narain Inter College, Padrauna Kushi Nagar (hereinafter referred to as the 'Institution') for setting aside the result published by the U.P. Secondary Education Service Selection Board, Allahabad (hereinafter referred to as the 'Selection Board') on 7th May, 2011 in so far as it relates to the selection of Rajendra Kumar Singh -Respondent No. 4 in the writ petition and Appellant herein, as the Principal of the Institution. Further relief claimed by Mukti Nath Tiwari in the writ petition is for a direction upon the Selection Board to declare the result of the Petitioner for the aforesaid selection on the post of Principal in the Institution and not to interfere in the functioning of the Petitioner as Officiating Principal of the Institution.
(2.) THE interim order dated 25th May, 2011 passed by the learned Judge is as follows: Notice on behalf of Respondents No. 1 and 3 has been accepted by the learned Standing Counsel. Respondent No. 2 is represented by Shri A.K. Yadav, Advocate. Respondent No. 4 is represented by Shri H.P. Gupta, Advocate. All the Respondents pray for and are granted four weeks' time to file counter affidavit. Rejoinder, if any, may be filed within two weeks thereafter. List on 19.07.2011. This Court vide order dated 20.05.2011 required the Selection Board to disclose the marks obtained by the Petitioner and Respondent No. 4 in the matter of selection on the post of Principal of the institution. Shri A.K. Yadav, counsel for the Selection Board, after instructions informs that the total marks obtained by the Petitioner work out to 273.40. (However such marks have not been disclosed inasmuch as the Petitioner was disqualified being not within the two senior most teachers of the institution). The selected candidate Respondent No. 4 is stated to have secured only 230.66 marks. Shri R.K. Ojha, counsel for the Petitioner points out that Respondent No. 4 had filed a writ petition before this Court earlier being Civil Misc. Writ Petition No. 1131 of 1978 which was dismissed vide order dated 03.09.1979 after holding that the approval granted by the District Inspector of Schools, on the fact of it, was illegal. The Respondent No. 4 was granted liberty to file a Civil Suit. No Civil Suit was filed, yet because of the interference by the educational authorities, the said Respondent No. 4 claims to have continued and regularized on the post of teacher in the institution. His claim of seniority is in the teeth of judgment of the Bench judgment, referred to above. It appears that Respondent No. 4 is not even a valid teacher in the eyes of law. Even otherwise the Petitioner cannot be said to be a junior to such an incumbent whose continuance itself is contrary to a Division Bench judgment of this Court. Shri Ashok Khare, counsel for the Respondent in turn refers to an order passed by the District Inspector of Schools dated 30.06.2008 stating therein that Mukti Nath Tiwari had not been regularized under the provisions of the Intermediate Education Act, 1921 at any point of time. Be that it may, the continuance of Respondent No. 4, in the facts of the case, is found to be prima facie wholly illegal. Therefore, till the next date of listing the effect and operation of the impugned panel dated 07.05.2011 including the consequential action taken thereof, shall remain stayed. Sri Ashok Khare, learned Senior Counsel for the Appellant, assisted by Sri R.C. Dwivedi, submitted that the Petitioner -Appellant was duly selected by the Selection Board as Principal of the Institution on the basis of the advertisement issued by the Selection Board in 2008. A seniority list of the teachers was sent by the District Inspector of Schools with the endorsement that Mukti Nath Tiwari is at serial No. 5, but still his name was sent to the Selection Board and he was also interviewed for the post of Principal though only the two senior most teachers could have been interviewed. The Appellant who was also interviewed filed objections against this act as Mukti Nath Tiwari was at serial No. 5 in the seniority list and after finding force in the objections filed by him, the candidature of Mukti Nath Tiwari was cancelled but without challenging this order, Writ Petition was filed for quashing the selection made by the Board. He has pointed out that the Appellant was placed at serial No. 1 in the panel prepared by the Selection Board on 7th May, 2001 and was duly issued an appointment order by the Institution and he joined the Institution as Principal and his signatures have also been attested by the District Inspector of Schools. He has also pointed out that the seniority dispute was decided by the District Inspector of Schools in favour of the Appellant by the order dated 20th February, 2008, but by the order dated 29th December, 2008 he held that Mukti Nath Tiwari is senior to the Appellant. These two orders have been assailed in Writ Petition No. 13115 of 2008 and Writ Petition No. 1784 of 2009 which are pending in the Court.
(3.) LEARNED Standing Counsel appears for Respondent Nos. 1 and 3. Sri A.K. Yadav appears for Respondent No. 2. Sri R.K. Ojha appears for Respondent No. 4 Mukti Nath Tiwari.;