- (1.) V. K. Shukla, J. Committee of Management of L. P. Inter College, Kanpur, (old name Kanya Kubja Inter College Maal Road, Kanpur) through its Manager Onkar Nath Awasthi, has approached this Court, for quashing of order dated 2-3-2007 passed by District Inspector of Schools, Kanpur Nagar, and further for issuing a writ, order or direction in the nature of mandamus declaring Section 21 of U. P. Secondary Education Service Selection Board Act, 1982 as ultra vires of the Constitution of India. By means of Amendment Application, further prayer has been made for declaring Section 18 of U. P. Secondary Education Service Selection Board Act, 1982 as ultra vires of the Constitution of India, in so far as it restricts the choice of the petitioner (Management of the Institution) in selecting and appointing Principal of the institution as per its own choice.
(2.) BRIEF background of the case is that in the District of Kanpur Nagar, there is a recognized and aided institution known as L. P. Inter College, Kanpur, (old name Kanya Kubja Inter College Maal Road, Kanpur ). The provisions of U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal, Lecturers and L. T. Grade Teachers is to be made strictly in consonance with the U. P. Secondary Education Service Selection Board Act, 1982 and the Rules framed thereunder in exercise of power under Section 35 of the said Act, known as U. P. Secondary Education Service Selection Board Rules, 1998. In the institution concerned, post of Principal fell vacant. Instead of handing over charge of officiating Principal to respondent No. 4, M. K. Bajpai, senior most lecturer in the institution, charge was handed over to one Jagdish Singh Sengar. The District Inspector of Schools by order dated 13-1-2004 on the footing that Jagdish Singh Sengar had better quality point marks, proceeded to accord approval to his ad hoc appointment. The said order was subject-matter of challenge by M. K. Bajpai in writ petition No. 1979 of 2004. This Court on 27-2-2004 allowed the writ petition and quashed the order dated 13-1- 2004 passed by the District Inspector of Schools, and a declaration was made that M. K. Bajpai was senior to Jagdish Singh Sengar and he was entitled to work as ad hoc Principal. In this backdrop M. K. Bajpai was handed over charge to perform and discharge duties as Principal of the institution. On 19-2- 2006, a scuffle took place in between M. K. Bajpai and Head Clerk Shiv Kant Mishra. In regard to the said incident, F. I. R. was lodged by both of them. The Committee of Management of the institution in this background proceeded to place M. K. Bajpai under suspension and also proceeded to pass resolution for initiation of disciplinary proceedings for the said misconduct committed by M. K. Bajpai, and in his place Jagdish Singh Sengar was handed over charge of the office of the Principal, and papers were transmitted to the District Inspector of Schools, Kanpur Nagar. The District Inspector of Schools on 30-12-2006 passed order authorizing Jagdish Singh Sengar to function as officiating Principal of the institution. The Committee of Management undertook disciplinary proceedings against M. K. Bajpai. The enquiry committee submitted report on 5- 2-2007 and M. K. Bajpai was asked to show-cause against the proposed punishment. M. K. Bajpai submitted reply to the said show-cause notice, and on 12-2-2007 resolution was passed mentioning therein that the issues sought to be raised by him were contrary to facts and law, and after deliberation, suspension of Mr. Bajpai was withdrawn and he was reverted back to his original post and was advised to resume his duties as Lecturer in Chemistry and report his compliance to Sri Jagdish Singh Sengar. Petitioner submits that M. K. Bajpai, thereafter joined as Lecturer in Chemistry and started performing and discharging duties as such. Thereafter, order has been passed on 2-3-2007 by the District Inspector of Schools, directing the petitioners to reply within 15 days from 2- 3-2007 and further asked to permit Mr. Bajpai to function as Principal of the institution. At this juncture, present writ petition has been filed. In the present case pleadings inter se parties have been exchanged. Thereafter, at the admission stage itself, with the consent of the parties, present writ petition is being heard and finally disposed of. Sri Arvind Srivastava, learned Counsel for the petitioner, contended with vehemence; (a) In the present case, District Inspector of Schools, Kanpur Nagar, has totally misdirected himself by giving directives to ensure functioning of M. K. Bajpai as Principal of the institution in order to avoid contempt proceedings, whereas in the facts and circumstances of the present case order passed by this Court at the earlier occasion, had already outlived its utility, and the same could not have been used as an instrument to achieve the goal beyond the period prescribed therein, as such the authority to direct the petitioner to permit M. K. Bajpai to function as Principal of the institution has been misused, and same is clearly not permissible in law, as the power has been utilized giving illegal colour to the case without there being any justification for the exercise of said authority; (b) Right to administer the institution is fundamental right, and provisions like Sections 18 and 21 of the U. P. Secondary Education Service Selection Board Act, 1982 are clearly ultra vires to the provisions of Article 19 (1) (g) of the Constitution of India, as same has the effect of putting unreasonable restriction; (c) An ad hoc appointee has no right to the post and once decision has been taken to revert him on his substantive status, none of his legal rights are infringed, and as such, there is no requirement of taking any approval under Section 21 of U. P. Secondary Education Service Selection Board Act, 1982 with regard to ad hoc appointee; (d) The office of the Principal is of great importance and entire academic atmosphere depends how the Principal conducts himself and handles the institution, and here Principal's guilt has been found, and ignoring the same, direction has been issued for ensuring his functioning, without there being any application of mind, as such writ petition on all the score is liable to be allowed.
(3.) SRI Gajendra Pratap, learned Counsel, appearing alongwith the Satyendra Prakash, for M. K. Bajpai, on the other hand, contended with vehemence that in the present case, on admitted position, M. K. Bajpai is the senior most lecturer in the institution, and as on date, order of suspension, which had been passed against him, has not been approved, rather to the contrary, same has been withdrawn, and once suspension order has been withdrawn and the resolution, which has been passed for reverting M. K. Bajpai, in regular departmental proceeding, has not been approved by the U. P. Secondary Education Service Selection Board, under Section 21 of the U. P. Secondary Education Service Selection Board Act, 1982, on the basis of same M. K. Bajpai cannot be reverted back, as any punishment without approval is void, and in this background, suspension having been revoked and there being no approval of the same under Section 21 of the U. P. Secondary Education Service Selection Board Act, 1982, directive which has been issued is lawful directive and in the facts and circumstances of the present case, it is submitted that District Inspector of Schools, even if he has mentioned something incorrect on wrong premises, the same will not change the status of parties on admitted position and on admitted position, M. K. Bajpai being senior most lecturer, there being no order of suspension and punishment having not been approved, M. K. Bajpai is entitled to perform and discharge duties as Principal and the order of reversion is of no consequence. In this background, it has been contended that writ petition is liable to be dismissed. On the question of reasonable restriction, it has been sought to be contended that State has right to impose reasonable restriction and as far as validity of U. P. Secondary Education Service Selection Board Act, 1982, is concerned, the same has been already upheld in the past by Hon'ble Apex Court, as such the challenge which has been raised is unsustainable. Similar stand has been taken by SRI K. K. Chand, learned Standing Counsel, appearing on behalf of State respondents. After respective arguments have been advanced, the first question, which is being looked into is, as to whether Sections 18 and 21 of the U. P. Secondary Education Service Selection Board Act, 1982 impose unreasonable restriction on the rights of Management in the matter of managing the affairs of the institution as per their own choice and as such they are violative of Article 19 (1) (g) of the Constitution of India. Earlier appointment of teachers in recognized secondary educational institutions were to be governed by the provisions of U. P. Intermediate Education Act, 1921 and the Regulations made thereunder. It was felt that selection of teachers under the provisions of the said Act and the Regulations made thereunder was sometime not free and fair, as such besides it, selection was very much restricted. Thus, in order to have suitable teachers and to maintain the standard of education, it was considered by the Legislature to constitute Secondary Education Service Selection Commission at the State level to select Principal, Head Master, Lecturer and L. T. grade teachers. Secondly, under Section 16-G (3) of the U. P. Intermediate Education Act, 1921, managements were authorized to impose punishment with the approval of the District Inspector of Schools, in matter pertaining to disciplinary proceeding, and thus provisions were there for punishment of dismissal, removal or reduction in rank and it was considered necessary that these powers should be exercised subject to prior approval of the Commission or the Selection Board, as the case may be, which would function as an independent and impartial body. At the said point of time, State Legislature was not in session, and immediate action was considered necessary, with a view to set up Commission and Selection Board, U. P. Secondary Education Service Commission and Selection Board, Ordinance, 1981 (Ordinance No. 8 of 1981) was promulgated by Governor on 10-7-1980, which was subsequently after passing of the Bill was replaced by U. P. Secondary Education Service Selection Board Act, 1982 (U. P. Act No. 5 of 1982 ). Function of Selection Board is to prepare guidelines in matters relating to method of direct recruitment of teachers; conduct examinations, hold interview and make selection of candidates for being appointed as teachers; to advise Management in respect of dismissal, removal, reduction in rank of teachers, and to perform such other duties direct or incidental to be discharged under the Act.;