- (1.) THIS is a petition under Article 226 of the Constitution for the quashing of the order dated 7th March, 1975, appointing Akhilesh Chandra Upadhya as Principal of Raja Shri Krishna Dutta Degree College, Jaunpur.
(2.) RAJA Shri Krishna Dutta Degree College, conducts B.A. B.Sc. and B.Ed. classes. The College was previously affiliated to Gorakhpur University. Sri Akhilesh Chandra Upadhya, respondent No. 4, was its permanent principal, he took one year's leave with effect from 2nd October, 1972, and later on he got his leave extended upto 1st April, 1975. During that period he joined as principal of Goverdhan Dass Binani Degree College, Mirzapur, which was also affiliated to the Gorakhpur University. During his absence the Committee of Management of the Raja Shri Krishna Dutt Degree College, Jaunpur (hereinafter referred to as the Jaunpur College) invited applications from qualified and experienced persons for appointment to the post of Principal in leave vacancy which was likely to be made permanent. Ram Asrey Misra, the petitioner, who was a teacher in the Jaunpur College applied for the same. A Selection Committee as required by the U. P. State Universities Act, 1973, which had come into force by that time was constituted and met on 29th November, 1973, to hold the selection. It selected the petitioner. The Managing Committee accepted the recommendations of the Selection Committee and appointed the petitioner as principal of the Jaunpur College on probation and referred the matter to the Vice-Chancellor of the Gorakhpur University for his approval. The Registrar of the University informed the petitioner and the Managing Committee that the Vice-Chancellor had accorded approved to the petitioner's appointment as Principal of the College under Section 31 (3-A) of State Universities Act, 1973. According to the petitioner Akhilesh Chandra Upadhya, respondent 4, was confirmed and made permanent on the post of Principal of the Goverdhan Dass Binani Degree College, Mirzapur. Consequently a clear vacancy arose in the office of the Principal of the Jaunpur College. The Managing Committee by its resolution dated 13-2-1975 made the petitioner permanent on the post of Principal and a letter to that effect was issued to him by the President of the Jaunpur College on 15-2-1975. Later on some differences arose between the petitioner and the President of the College as a result of which the President of the Jaunpur College purported to cancel the leave of Akhilesh Chandra Upadhya and allowed him to join as Principal of the Jaunpur College. The petitioner was not allowed to function as Principal. Aggrieved the petitioner filed this petition challenging the order of the President of the Jaunpur College, dated 7-3-1975 cancelling the leave of Akhilesh Chandra Upadhya and directing him to join as principal of the College. The Gorakhpur University Act, 1956 was repealed by the U. P. Ordinance No. 1 of 1973 which was promulgated on 18-6-1973. The Ordinance made provision for the University of Gorakhpur and the Degree Colleges affiliated to it. It further made provisions for appointment of teachers. The Ordinance was converted into the U. P. State Universities Act 10 of 1973 which was enforced on 3-9-1973. The Ordinance and the Act repealed the Gorakhpur University Act, but Section 50 of the Act laid down that the First Statutes of the Gorakhpur University Act, 1956 made by the State Government shall continue to remain in force for so long as the First Statutes are not made under the 1973 Act. No fresh statutes as contemplated by Section 50 of the Act have been framed by the State Government. Consequently the first Statutes made under the Gorakhpur University Act, 1956, still continue to remain in force. Section 28 (2) of the Gorakhpur University Act, 1956 laid down that every teacher shall be appointed in the first instance on probation for such period as may be prescribed and he shall not be confirmed if he is a teacher of the University except by the order of the executive council and if he is a teacher of an affiliated College except by the order of management. Section 2 (1) defines "prescribe" which means prescribed by the statutes. Thus under Section 28 of the Gorakhpur University Act, a teacher was required to be appointed in the first instance on probation for such period as prescribed by the Statutes. Statute 9 (a) of Chapter XIII of the First Statutes of the Gorakhpur University Act, 1956 prescribed period of probation in respect of teachers appointed by the Executive Council in the University. But so far as appointment of teachers in the affiliated Colleges was concerned, no period of probation was prescribed. After the enforcement of the Ordinance and the State Universities Act the period of probation was prescribed in the Act itself. Section 31 (2) of the U. P. State Universities Act lays down that the appointment of every teacher or principal in the first instance be on probation for one year which may be extended for a period not exceeding one year. This provision applies equally to the appointment of teachers in the University as well as in an affiliated College. Thus under the provisions of the State Universities Act, a teacher is required to be appointed initially on probation for a period of one year. That period can be extended only for another period of one year. Thereafter the probationary period cannot be extended. If the services of a teacher who is appointed on probation are not terminated during or on the expiry of the period of probation, he acquires the status of a permanent teacher or principal. On the expiry of period of probation his services cannot be terminated treating him to be probationer or temporary in nature. The services of a permanent teacher after the enforcement of the Act can be terminated in accordance with the provisions contained in the Act and the Statutes framed thereunder.
(3.) LEARNED counsel for the petitioner urged that Sri Akhilesh Chandra Upadhya was permanent principal of Goverdhan Dass Binani Degree College, Mirzapur, hereinafter referred to as the Mirzapur College, and further since the petitioner had also been appointed permanently on the post of Principal at the Jaunpur College, the President of the Jaunpur College had no authority in law to cancel the leave of Akhilesh Chandra Upadhya or to direct him to join as Principal at the Jaunpur College. Akhilesh Chandra Upadhya, has however, asserted that he was never made permanent at the Mirzapur College and that he continued to remain on leave and his appointment at Mirzapur College was temporary in nature. The petitioner has filed a copy of the minites of the meeting of the Managing Committee of the Mirzapur College held on 17-11-1972, Annex. 5, to the rejoinder affidavit which clearly showed that the Managing Committee of the said college accepted the recommendations of the Section Committee and thereupon it approved his appointment as principal on probation for a period of one year. The Assistant Registrar of the Gorakhpur University by his letter dated 19-1-1973 (Annexure - 6 to the Rejoinder Affidavit) informed the Secretary of the Managing Committee of the Mirzapur College that the Vice- Chancellor had approved the appointment of Akhilesh Chandra Upadhya as Principal of the Mirzapur College under Section 28 (4) of the Gorakhpur University Act, 1956. The petitioner has also filed the minutes of the meeting of the Selection Committee constituted for the purpose of appointment of Principal of Mirzapur College (Annexure - 1 to the supplementary rejoinder affidavit). The petitioner's assertion that Akhilesh Chandra Upadhya was selected by a duly constituted Selection Committee in accordance with the Gorakhpur University Act and the Statutes framed thereunder and thereafter he was appointed on probation in a clear vacancy on the post of Principal of the Mirzapur College is fully supported by these documents. The petitioner has filed an extract from the service record of the respondent No. 4, Akhilesh Chandra Upadhya, as maintained in the office of the Deputy Director of Education (Finance) Higher Education, as Annexure - 2 to the supplementary rejoinder affidavit which shows that the petitioner was designated as a permanent principal of the Mirzapur College. This document again shows that Akhilesh Chandra Upadhya was a permanent principal of the Mirzapur College.;