J. N. Dubey, J. - (1.) WHEN this writ petition was presented on 5th September, 1984 by the Committee of Management, Gokul Das Hindu Girls College, Moradabad, against order dated 26-7-1984 passed by the Director of Education in exercise of power under section 13 of the Higher Education Service Commission Act, 1980 (hereinafter referred to as the Act) the Bench entertaining the petition directed the petitioner to serve opposite party no. 3 and permitted her to file counter-affidavit. It stayed operation of order dated 26th July 84 and 14th August 84 by which District Magistrate had directed the petitioner to pay salary of opposite party no. 3 as Principal since 10-8-1984.
(2.) COUNTER and rejoinder affidavits have been exchanged. Having heard counsel for the parties it does not appear that petitioner can be granted any relief under Article 226 of the Constitution. Admittedly opposite party no. 3 who had been working as a Sanskrit teacher in the college was selected by the Services Commission and recommended for appointment as a Principal of the college. Under section 14 of the Act the management is required within a period of one month from the date of receipt of recommendation of the Commission under section 13 to issue appointment letter to the candidate whose name appears on the top in order of preference. But no appointment letter was issued. It appears the Management was not happy with her appointment. It appointed one Smt. Sharda Swamp to officiate. She filed a writ petition challenging the petitioner's selection. It was admitted and appointment of the petitioner was stayed. Later on this order at the instance of opposite party no. 3 was vacated. Five months elapsed in all this and feeling of distrust between the petitioner and the opposite party appears to have developed. In May, 1984 opposite party no. 3 invoked Director of Education's jurisdiction under section 15 of the Act The Management then Issued letter of appointment on 24-7-1984. No sooner was this letter received the opposite party applied on 26-7-1984 for one years' extra-ordinary leave from the post she was working. It was rejected next day. The Director of Education in the meantime decided application of opposite party no. 3. He did not find any merit in the claim of the petitioner that opposite party had violated any regulation or had misconducted herself In a manner which could disentitle her from being appointed as Principal of the college. It was found that opposite party was not justified in attempting to act as Principal of the college without her appointment and handing over of charge. But that according to him appeared due to ignorance of rules. The Director, therefore, directed the petitioner in exercise of his power under section 15 (2) of the Act to hand over charge of Principal to opposite party no. 3 by 10th August, 1984. He further permitted opposite party to approach Collector to recover her arrears of salary as arrears of land revenue under section 51 (3) in case petitioner did not comply with the order when the petitioner did not honour the order of the Director of Education the opposite party approached the District Magistrate, who under the byelaws of the college is its patron as well. The District Magistrate on the application of the opposite party no. 3 appears to have invited petitioner's comments, a copy of which has been filed as Annexure 4 to the writ petition. In it the principal stand of the petitioner is that opposite party could he handed over charge only if she resigned from the post of lecturer in Sanskrit and produce relevant certificate to that effect..
(3.) FROM what has been narrated above an impression is created that Management has not been fair to opposite party. It has been creating all possible obstacles to frustrate opposite party's selection. It did not issue the letter of appointment within one month in contravention of section 14 of the Act. And when it did after nearly more than six months of communication of selection from the Commission, it rejected the opposite party's application for grant of extra-ordinary leave. Although leave is a matter of discretion with Management but in such cases it should normally be granted. A permanent lecturer selected for appointment as principal on probation for one year should not be left insecure. The object of the Act of selecting meritorious lecturers for the post of Principal by an independent body should not be permitted to be defeated by the Management by adopting manoeuvres which may leave the lecturer helpless. Even assuming that the order rejecting opposite party's application for grant of extra-ordinary leave became final there appears no justification for the petitioner to insist that opposite party shall be handed over charge only if she resigns from the post of Sanskrit lecturer. At least there is no provision to that effect cither in the Act or bye laws of the college. The argument of the learned counsel for the petitioner that so long opposite party did not resign her job as Sanskrit lecturer she was not eligible for taking over as Principal of the college is not based on any law or rule. Learned counsel has failed to support it by any principle. His argument that one person cannot hold two posts again is not convincing. Once a lecturer is selected and appointed as Principal then he or she holds only one post, that is the post of Principal The other post falls vacant automatically. But the permanent lecturer does not lose his or her lien on it so long she is not confirmed or made permanent on higher post. The post is vacant only in the sense that Management can appoint another lecturer in vacancy thus caused temporarily for a period the permanent incumbent is either absorbed in higher post or return to his or permanent post. In any case in absence of any provision the insistence of the Management that opposite party should resign first is unwarranted. It cannot be use as an excuse to delay handing over charge of Principal to opposite party no. 3. Learned counsel for the opposite party no. 3 argued that they have an apprehension that despite the order passed by the Director of Education and the District Magistrate the petitioner shall not comply with the same. He, therefore, insisted that a direction should be issued by this Court, directing the petitioner to hand over charge and permit the opposite party no. 2 to work as Principal. There appears to be no necessity for issuing any direction. The order has already been passed by the Director of Education and the District Magistrate has directed the petitioner to pay the salary of the opposite party no. 3. We see no reason that petitioner will not comply with the order of the Director of Education and the District Magistrate and implement the same at the earliest.;