- (1.) DR. B. S. Chauhan, J. The dispute in this Special Appeal is about the post of the Head of the Institution namely, Kisan Purva Madhyamik Vidyalaya, Itaili, Gazna Kudda, District Jaunpur which post is being claimed by the appellant Ajai Pratap Rai and respondent No. 3 Shri Krishna Dixit respectively. The judgment under appeal rejects the claim of the appellant as well as the respondent No. 3 and directs that the teacher next to the respondent No. 3 in seniority shall be handed over charge as the Head of the Institution till the respondent No. 3 is not cleared of the charges against him or till a permanent regular selection is made In accordance law. The learned Single Judge has also recorded a finding that the appellant and respondent No. 3 as well as the then District Basic Education Officer have indulged in certain malpractices for which a direction has been issued to launch criminal prosecution against them and other directions have been issued in respect of the connected writ petition pertaining to the management of the institution with which the present appellant is not concerned.
(2.) THE facts of the case have already been set out in detail in the judgment the learned Single Judge and, therefore, are not being exhaustively reproduced. However, bare minimum facts which are necessary for adjudication the controversy are that the institution was initially a Junior High School recognized and governed by the U. P. Basic Education Act, 1972 (hereinafter called the 'act 1972' ). THE said institution applied for recognition as a High School and was awarded the said status with effect from 25-1-1993. Further the Institution succeeded in promoting itself into an Intermediate College with effect from 16-1- 1999 for which a recognition was granted under the provisions of the U. P. Intermediate Education Act, 1921 (hereinafter called the 'act 1921' ). On 30th June, 1999, the Head Master of the institution Shri H. P. Maurya attained the age of superannuation as a result whereof a vacancy occurred on the said post. THE respondent No. 3 Shri Krishna Dixit is stated to have been handed over the charge as he was the next senior most teacher of the institution to function on the said post. THE handing over charge was preceded by an alleged advertisement dated 6-6-1999 stated to have been issued by the then Manager and it is alleged that the signatures of the respondent No. 3 were attested by the educational authorities on 13-7-1999. It appears that the respondent No. 3 was seeking a declaration of his status as Head Master of the Institution for which he had approached the District Basic Education Officer. Having failed to receive any response from him, the respondent No. 3 filed Writ petition No. 893 of 2000, which was disposed of on 11-1-2000 with a direction to the District Basic Education Officer to decide the representation of the respondent No. 3 in respect of his claim to the post of Head Master. From the records, it appears that in December 2002/january 2003, the Basic Education Officer attested the signatures of respondent No. 3. In between, there appears to have been a dispute with regard to the management of the institution and one Raja Ram Vishwakarma claimed himself to be the Manager of the institution and a rival claim was set up by Subhash Chandra Yadav. Both these persons staked their claims and the dispute came to this Court in several writ petitions which have been referred to in the judgment of the learned Single Judge. For the purposes of this controversy, suffice would be to say that Shri Raja Ram Vishwakarma as a Manager claimed that he appointed the appellant Ajai Pratap Rai. The said alleged appointment of the appellant is stated to have been approved on 7-3-2003 by the District Basic Education Officer, which was challenged by the respondent No. 3 in Writ Petition No. 14612 of 2003, which has given rise to the present Special Appeal. An order of status quo was passed on 21st May, 2003, yet the salary has been disbursed by the District Basic Education Officer to the appellant. The District Inspector of Schools intervened and issued directions in favour of respondent No. 3 which was reviewed by him on 3-3-2006. The order dated 7th March, 2003 had been assailed by the respondent No. 3 and the order dated 3-3- 2006 was again challenged by the respondent No. 3 in Writ Petition No. 16925 of 2006, which has also been disposed by the same judgment of the learned Single Judge. The relief claimed in this Special Appeal is confined only to the judgment insofar as it rejects the claim of the appellant in Writ Petition No. 14612 of 2003 and a prayer has been made to dismiss the said writ petition filed by respondent No. 3. In essence, the relief claimed is that the judgment of the learned Single Judge be set aside and the appellant be permitted to continue as Head of the Institution.
(3.) WE have heard Shri P. N. Saxena, learned Senior Counsel assisted by Shri R. M. Vishwakarma for the appellant; Shri Ashok Khare, learned Senior Counsel assisted by Shri P. N. Tripathi for respondent No. 3 and the learned Standing Counsel for the other respondents. On behalf of the appellant, it has been urged that the identity of the junior High School is intact and, therefore, the appellant's appointment as Head Master of the Junior High School was in accordance with the provisions of U. P. Recognized Basic (Junior High School) (Recruitment and Condition of the Service of Teachers) Rules, 1978 (herein after referred to as the 'rules 1978' ). It has further been contended that the appointment of respondent No. 3 was never made in accordance with the said Rules 1978 and there is no valid approval and as such the claim of the respondent No. 3 deserves to be rejected. Shri Saxena has further stated that the appellant is fully qualified and possesses the requisite qualification for the post of the Head Master of the Junior High School. He has further contended that the learned Single Judge has erred by ordering prosecution without there being any enquiry with regard to the genuineness or otherwise of the newspapers from the Information Bureau and further the direction for refund of salary from the appellant is unsupported in law.;