R. R. K. Trivedi, J. - (1.) PETITIONER Birendra Bahadur Singh, lecturer in Mathematics, Bapu Maha Vidyalaya Inter College, Salimpur, Deoria (hereinafter referred to as the College), has filed this writ petition praying to issue a writ of quo warranto order or direction in the nature thereof requiring respondent no. 6 Shri Prakash Sinha to show under what authority he is occupying the office of principal of the College where petitioner is lecturer. It has also been prayed that respondent no. 6 be restrained from functioning as Principal of the College and the office of principal be declared as vacant. It has been further prayed that respondents 1 to 5 may be directed not to allow respondent no. 6 to hold office of principal and they may further be directed to declare the post of head of the institution as vacant and to advertise the same for appointment.
(2.) CASE of petitioner is that Shri Pratap Narayan Sinha (father of respondent no. 6) Sri Prakash Sinha, was principal of the College and he was 260 B. B. Singh v. State (R.R.K.. Trivedi, J.) [ 1991 due to retire on 30-6-1976. He proceeded on leave preparatory to his retirement with effect from 9-12-1975. Same day respondent no. 6 was appointed in his place on ad hoc basis and same day the District Inspector of Schools approved his appointment. It has been stated that respondent no 6 was working as lecturer in Subhash Inter College, Bhatni, district Deoria. Teachers of the institution made a representation against appointment of respondent no. 6 claiming that in view of the provisions contained in U. P. Secondary Education (Removal of Difficulties) Order, 1975 the senior-most teacher of the institution should be appointed to officiate as principal till permanent appointment is made. On this representation, the Deputy Director of Education VII Region, Gorakhpur, respondent no. 3 by his order dated 2-2-1976 set aside appointment of respondent no. 6. A copy of the order dated 2-2-1976 has been filed as Annexure I to the counter affidavit of respondent no 6 A perusal of the order shows that Dy. Director of Education set aside appointment of respondent no. 6 on two grounds : - (i) that under the Removal of Difficulties Order, 1975, only senior-most teacher could be appointed principal on ad-hoc basis and his claim could be ignored only when there is reliable evidence to show that he is incapable of holding the post. (It is difficult to assume that no teacher in the college in lecturer grade or L. T. grade is capable of functioning as head of the institution). (ii) that the respondent no. 6 was related to the head of the institution being his son and could not be legally appointed. Dy. Director of Education directed the management to take immediate steps for appointment in accordance with law. This order was challenged by committee of management of the college by filing Civil Misc. Writ Petition No. 176A of 1976. On 10-2-1976 an interim order was passed to the following effect "Issue notice. Operation of the order dated 2-2-1976 shall remain stayed till the end of June, 1976." The management, however, by another resolution dated 5-5-1976 continued the appointment of respondent no. 6 as head of the institution until a regular candidate is selected for appointment. This resolution dated 5-5- 1976 has been filed as Annexure I to the writ petition. It appears that same day it was sent to the District Inspector of Schools, Deoria, for approval. It was also mentioned in the letter that as vacancy will arise only after 30-6-1976, on retirement of principal, steps for p3rmanent arrangement shall be taken thereafter. The District Inspector of Schools approved the resolution dated 5-5-1976 by his order dated 12-5-1976.
(3.) THE interim order dated 10-2-1976 mentioned above was, however, modified on 7-7-1976 by this Court THE order has been filed as Annexure II to the writ petitien which is being reproduced below :- "We have heard counsel for the parties. THE interim order dated 10th February, 1976 is modified. It is directed that the petitioner is at liberty to make any fresh ad-hoc appointment to the post of principal including that of Sri Prakash Sinha irrespective of the impugned order dated 2nd February, 1976 passed by the Deputy Director and in case Sri Prakash Sinha is appointed as principal, the District Inspector of Sch >ols, shall be at liberty to act according to law ignoring the order of the Deputy Director of Education under challenge in this writ petition " From a perusal of the order dated 7-7-1976, it appears that this Court permitted the Committee of Management, which was petitioner in that writ petition, to make fresh appointment on ad-hoc basis to the post of principal including that of Shri Prakash Sinha which was to be subject to the approval or disapproval of the District Inspector of Schools. Respondent no. 6 continued to occupy the post of principal. Committee of Management had already continued his appointment before the order of this Court dated 7-7-1976. In the meantime, section 16-GG of the Uttar Pradesh Intermediate Education Act, 1921 (hereinafter referred to as the Act) was inserted by U. P. Act V of 1977 with effect from 21-4-1977. Section 16-GG of the Act contained provisions for regularisation of appointment of ad-hoc teachers appointed during 18th August, 1975 to 30th September, 1976 (both dates inclusive). The State Government framed Regulations in respect of the appointments of teachers and head of the institutions and in view of these Regulations, the Committee of Management was required by the Educational authorities to take immediate steps for permanent appointment of the head of institution according to the regulations. The committee of management then filed Writ Petition No. 1525 of 1976 in this Court and this Court by order dated 17-8-1977 passed the following order :- "Heard counsel for the parties. We direct that until further order, the respondents shall not insist that petitioner shall hold selection for appointment of principal." In Writ Petition No. 1525 of 1976, the case of the committee of management was that under section 16-GG of the Act, appointment of respondent no. 6 stands regularised and they cannot be compelled to take steps for permanent appointment for the post of head of the institution It appears that from July, 1977 payment of salary to respondent no. 6 was stopped by the Educational authorities as under the Removal of Difficulties IInd Order, 1976, the appointment could be continued only upto 30-6-1976. Respondent no. 6 then filed Writ Petition No. 2056 of 1977 in this Court. In this Writ Petition case of respondent no. 6 was that in view of the pendency of Writ, Petition No. 1525 of 1976, he was working as principal in the college and interim order has been passed in his favour. In this Writ .Petition filed by respondent no. 6, District Inspector of Schools and Deputy Director of Education, Gorakhpur, were directed to file counter affidavit. The Deputy Director of Education by his order dated 3-1-1979 directed the District Inspector of Schools, Deoria to apprise him of the steps taken for filing counter affidavit. In reply of this letter the District Inspector of Schools by his letter dated 17-2-1979, which has been filed as Annexure III to the Writ Petition, recommended that respondent no. 6 has been regularised by the committee of management under section 16-GG of the Act. He also said in his letter dated 17-2-1979 that under section 16-GG, the respondent no. 6 could be regularised. It may be mentioned at this place that in Writ Petition No. 176A of 1976 statement was made that the writ petition has become infructuous and the writ petition was accordingly dismissed on 22-2- 1979. The order has been filed as Annexure IV to the writ petition, Writ Petition No. 1525 of 1976 was dismissed on merits by a detailed order dated 27-3-1979 and it was held that respondent no. 6 couid not be regularised on the post of head of the institution under section 16-GG of the Act. This order of the Division Bench has been filed as Annexure V to the writ petition. The Division Bench specifically held that respondent no. 6 could not be regularised under section 16-GG and it also upheld the validity of the regulations framed by the State Government. Writ Petition No. 2056 of 1977 filed by respondent no. 6 for payment of salary was also got dismissed as not pressed on 20-8-1979 which has been filed as Annexure IV to the counter affidavit filed by respondent no 6. All the orders have become final. Petitioner's case is that in view of the dismissal of Writ Petition No. 176A of 1976 the order dated 2-2-1976 by which the appointment of respondent no. 6 was set aside, continued in existence and respondent no. 6 cannot be permitted to continue on the post. It has been further said that services of respondent no. 6 could not be treated regularised under section 16-GG of the Act and he is not entitled for salary. He is illegally occupying the office of principal and is being paid salary. It has been further said that there is great resentment amongst the teachers of the college against this high handed action on the part of the Educational authorities and several representations have been made to the Educational authorities for action under section 16-E of the Act for which teachers have been assured. However, no action is being taken, and the respondent no. 6 is being allowed to continue on the post illegally. Some allegations regarding mala fides have also been made stating that respondent no. 6 procured the orders in collusion with the District Inspector of Schools by exercising influence of his father-in-law Ram Sharan Lal Srivastava who was a member of the committee of management of the college at the time the respondent no. 6 was appointed. It has also been said that Shri Ashok Kumar Sinha, real brother of respondent no. 6, was also a member of the committee of management at the time of appointment of respondent no. 6. Petitioner has submitted that he is M.Sc, L.T., and has teaching experience of 24 years as lecturer and administrative experience of 19 years as N.C.C. Officer and, as such, he is fully qualified for being considered for the post of principal but as respondent no. 6 is being illegally continued on the post, he is suffering irreparable loss and injury.;