B. L. Loomba, J. - (1.) THE petitioner in this petition under Article 226 of the Constitution seeks a writ of mandamus commanding the opposite-parties to not to implement the panel of selection prepared by the U. P. Secondary Education Services Commission for appointment on the post of Head Master, Asal Deo Higher Secondary School Peeparpur, district Sultanpur. Further prayers made are that the opposite-parties be restrained from terminating the petitioner's services from the post of Head Master of the said school and that a mandamus be issued directing the opposite-parties to allow the petitioner to continue on the said post until the fresh selection is held and a new panel is prepared and notified under the provisions of the U. P. Secondary Education Services Commission Rules.
(2.) ACCORDING to the averments contained in the (sic) L. T. Grade in January, 1974. Krishna Pal Dubey who was Head Master of the institution is said to have died on 23-11-1980 and the petitioner was allowed to work as Incharge, Head Master with effect from 2-12-1980 on the ground of his being senior most teacher working in the L. T. Grade. The Committee of Management adopted resolution dated 5-9-1981 for promoting the petitioner to the post of Head Master on ad-hoc basis. The proposal was approved by the District Inspector of Schools by his order dated 8-12-1981. The petitioner's case is that he is entitled to continue to work on the post of Head Master on ad-hoc basis for so long as a candidate selected and recommended by the Commission or Board joins the post. It is the admitted position that the vacancy on the post of Head Master was notified to the Commission and the Commission prepared a panel of three teachers consisting of Amar Bahadur Singh, Triveni Prasad Misra and Radhey Shyam Tripathi. The petitioner's case is that Amar Bahadur Singh and Radhey Shyam Tripathi having1'been selected in other institutions also, have already joined as Head Masters and (?) Trivedi High School, Amethi but he did not join there and was then appointed to join at Kalikan High School, Sultanpur where too he declined to join. The petitioner's case is that the panel selected by the Commission for this institution lapsed on 9-12-1984 upon expiry of one year from the date on which the panel was notified, which date was 9-12-1983. According to the petitioner after the lapse of the panel a fresh selection has to be made and that he can be displaced only by a candidate selected at the fresh selection which is yet to be made. The District Inspector of Schools opposite-party no. 3 by his letter dated 5-1-1987, contained in Annexure-3 has directed the petitioner to hand over the charge of the post in order to make room for the selected candidate, namely, Triveni Prasad Misra. Aggrieved by this order the petitioner has filed this writ petition. The writ petition has been contested and a short counter-affidavit has been filed by Triveni Prasad Misra, opposite-party no. 5. The main plea raised is that Triveni Prasad Misra has been regularly selected and the panel of selection was duly notified on 9-12-1983 and that he could not join the post because of stay order having been obtained by the petitioner. It is stated that the petitioner filed W. P. No. 196 of 1984 on 12-1-1984 which was connected with W. P. No. 78 of 1984 was eventually dismissed on 22-10-1984 and the interim orders were discharged. After the dismissal of this writ petition the District Inspector of Schools vide his letter dated 12/18-7-1985 directed the Manager of the institution to issue a letter of appointment in favour of Triveni Prasad Misra. The petitioner once again filed W. P. No. 4034 of 1985 on 14-8-1985 and he succeeded in obtaining the interim order as a result whereof opposite-party no. 5 was not issued letter of appointment on the post of Head Master. This W. P. No. 4034 of 1985 was dismissed by judgment and order dated 1-1-1987 whereby the claim of the petitioner for regularisation under section 33-A of the U. P. Secondary Education Services Commission and Selection Boards Act, 1982 was rejected as untenable. It is submitted that the petitioner had filed the present writ petition by suppressing the relevant facts of the earlier writ petitions having been filed by him and the same having resulted in dismissal.
(3.) ACCORDING to the opposite-parties the penal notified by the Commission was acted upon in so far as the candidature of the opposite-party no. 5 is concerned because the District Inspector of Schools under order dated 12/18-7-1985 directed the Manager to issue a better of appointment in his favour. It is also submitted that the delay has been caused because of the petitioner's having filed the writ petitions and succeeding in obtaining stay orders. ACCORDING to the opposite-parties the periods from which the stay orders remained in operation have to be excluded from computing the period relevant for purposes of the validity of panel notified by the Commission. Rule 7 of the U. P. Secondary Education Services Commission Rules 1983 contains provision about the preparation of panel by the Commission. As provided therein the panels are to be prepared institution-wise and the names are to be arranged in order of merit. In sub-rule (2) it is provided that the panel so prepared shall hold good for one year from the date of its notification by the Commission. In this case the panel was admittedly notified on 9-12-83 and one year period expired on 8-12-84. As per the submissions contained in the counter-affidavit filed by opposite party no. 5 no action on the basis of this panel could be promptly taken because the petitioner filed W.P. No. 196 of 84 and on 12-1-84 this writ petition was connected with W.P. No. 78 of 84 and an interim stay order was granted. We have seen the record of W.P. No. 196 of 84 and find that under the interim order dated 12-1-84 it was provided that till further orders effect shall not be given to the selection made for the post of Principal of this institution. This order continued till 22-10-84 when the writ petition was dismissed. After the dismissal c. the writ petition action could be taken in regard to the selection of opposite party no. 5 on the basis of the panel notified by the Commission but the District Inspector of Schools appears to have issued the order on 18-7-85, by order dated 12/18-7-85 issued by the District Inspector of Schools the Manager of the institution to issue a letter of appointment to opposite party no. 5. At this stage again the present petitioner filed a Writ Petition no. 4034 of 85. This writ petition was filed on 16-8-85 and the petitioner succeeded in obtaining an interim order that if the petitioner is still working his services shall not be terminated till 21-8-1985. It is submitted that this order continued till 1-1-87 when the writ petition was dismissed on merits. When the writ petition was dismissed, the management of the institution issued letter dated 5-1-87 to the petitioner directing that according to the panel of selected candidates dated 9-12-83 he was required to hand over the charge of the office of Principal of the college so that, the candidate selected by the Commission may be allowed to join. The petitioner again at this stage filed the present writ petition on 12th January/18th February, 1987. The affidavit was sworn on 9-2-87. Curiously enough not a word was stated in this writ petition about the petitioner having filed Writ Petition Nos. 196 of 84 and 4034 of 85 and the dismissal thereof. It was on the other hand alleged that the candidate placed at serial no. 1 of the selected candidates has already joined at Kunwar Inter College, Sultanpur and the candidate at serial no. 3 has also joined at another institution at Allahabad. Regarding the candidate at serial no. 2 (respondent no. 5 in this writ petition), it was stated that he was given appointment to join at Ramgarh High School, Amethi, Sultanpur and then at Kalikan High School, Sultanpur but he did not join and he has not so far been given any appointment order to join in the said institution and as such none of the candidates in the panel notified on 9-12-83 has joined the post in the institution and that this panel has lapsed and has come to an end. Only thing mentioned is that the President of the institution has written the impugned order dated 5 - 1-87 contained in Annexure 3 and that this order is arbitrary and illegal. In this way actually factual twist was given to say that none of the three candidates was available to join as Head Master of this institution. The petitioner again succeeded in obtaining an interim stay order on 18-2-87 which provided that in the meantime there shall be stay of reversion of the petitioner if the petitioner had not yet been relieved.;