- (1.) R. A. Sharma, J. The Committee of Management, Mahatma Gandhi Sainik Inter College, Pachhayan Gaon, Etawah (hereinafter referred to as 'the College"), appointed Sri Baij Nath Singh Yadav, Lec turer in the College, as Ad hoc Principal. This appointment was approved by the Dis trict Inspector of Schools (hereinafter referred 'to as 'the DIGS' ). Sri Dinesh Chandra Dubey challenged the said order appointing Sri Baij Nath Singh Yadav as Ad hoc Principal before this Court in Writ Peti tion No. 826 of 1990. The Committee of Management suspended Sri Dinesh Chandra Dubey and passed a resolution for his removal from service. In view of the provisions contained in the U. P. Secondary Education service Commission and Selec tion Board Act, 1982 (hereinafter referred to as 'the Act'), the removal of the Principal or teacher by the Committee of Manage ment can not be effective, unless approved by the Secondary Education Service Com missioner (hereinafter referred to as 'the Commission' ). The Committee of Manage ment accordingly sent its resolution for removal of Sri Dinesh Chandra Dubey from the post of Lecturer to the Commission. The Commission, however, rejected the froposal of the Committee vide order dated 7-2- 1990. The Committee of Management has thereafter filed Writ Petition No. 6360 of 1990 before this Court. Both these writ petitions were heard together by the learned single Judge who allowed Writ Petition No. 826 of 1990 on the ground that Sri Dinesh Chandra Dubey being the senior most Lecturer was entitled to be appointed as Ad Hoc Principal in view of the law taid down by a Division Bench of this Court in Km. Ban dana Banerji v. Administrator, Arya Kanaya Pathshala Inter College 1990 (1) U. P. 'l. B. E. C. 116 and accordingly directions were issued by the learned Judge to the Manage ment to hand over charge of the post of Ad hoc Principal to Sri Dinesh Chandra Dubey within a month from the date a certified copy of the Court's Order is produced before it. It was further directed that Sr; Dinesh Chandra Dubey shall continue tili a candidate duly selected by the Commission joins the post. The other Writ Petition No. 6360 of 1990 filed by the Committee of Management against the order of the Com mission rejecting the proposal of the Com mittee for removal of Sri Dinesh Chandra Dubey from service was dismissed by the learned Judge holding that Commission's order was a well considered and reasoned order which has been passed after hearing both the parties and after taking into con sideration the facts and circumstances of the case. Against the aforesaid judgment of the learned single Judge, two Special Appeals Nos. 202 of 1992 and 196 of 1992 have been filed by the Committee of Management. We have heard both the appeals together and they are being disposed of by a common judgment.
(2.) SRI Ashok Khare, learned Counsel for the appellant, has made two submissions in support of the appeals, namely, (1) the appointment of Ad hoc Principal of an In termediate College can not be made merely on the ground of seniority but it has to be on the basis of seniority cum merit and, there fore, the learned Single Judge was not jus tified in allowing the Writ Petition of SRI Dinesh Chandra Dubey merely on the ground that he was senior most Lecturer and (2) the order of the Commission refus ing to approve the proposal of the commit tee of Management to remove SRI Dinesh Chandra Dubey from service is vitiated be cause it was based upon a Farzi/fictitious Character Roll. Sri A. P. Sahi, learned counsel for Dinesh Chandra Dubey, apart from disput ing the above contentions, has also raised an objection to the effect that it is not necessary to decide the controversy on merit because Dinesh Chandra Dubey will attain the age of superannuation on 24-12-1997 on which date he will retire. In this connection the learned counsel has pointed out that in the appeals filed by the appellant in 1992, no interim order was passed by this Court with the result that Sri Dinesh Chandra Dubey is working as Ad hoc Principal till date. The fact that Sri Dubey is working as Ad hoc Principal till date and will retire on the said date is not disputed. A Full Bench of this Court in Km. Radha Raizada v. Committee of Manage ment and others, 1994 (3) U. P. L. B. E. C. 1551, has held that in the appointment of Ad hoc Principal, the criteria is seniority subject to rejection of unfit. The Supreme Court in Ram Muni Singh v. District Inspector of Schools, (1995)30atc 620 has, while inter preting Rule 4 of the U. P. Secondary Educa tion Service Commission (Removal of Dif ficulties Order), 1981, held that "ordinarily the senior most person may expect that he would be appointed but not if he is not competent". Therefore, it is established that for appointment of Ad hoc Principal, seniority is the prime consideration but the competence/merit can not be ignored al together. If a person is found unfit for ap pointment to the post of Principal even if he is senior most, it is not necessary for the Committee of Management to appoint him as Ad hoc Principal. In the instant case, the Committee of Management refused to ap point Sri Dubey as Ad hoc Principal on the ground that he has been suspended and dis ciplinary proceedings against him have been initiated. His claim was not rejected on merit/competency. As regards the discipli nary proceedings and the proposal of removal from service of Sri Dubey passed in pursuance thereof, the Commission has held that the same was vitiated being con trary to Rules and Regulations. In view of the order of the Commission, the discipli nary proceedings and the order passed by the Management to remove Sri Dubey came to an end. It is well-settled that an order of suspension of an employee, ceases to exist after the disciplinary proceedings are con cluded. Therefore, the ground on which Sri Dubey was refused ad hoc promotion to the post of Principal does not survive. That apart, there is no finding that Sri Dubey was not competent to perform the duty of Prin cipal. In fact he was appointed earlier as Acting Principal and he was removed from that post by the Resolution of the Committee on account of his suspension and initia tion of disciplinary proceedings against him. Therefore, the rejection of the claim of Sri Dinesh Chandra Dubey for appointment to the post of Ad hoc Principal can not be sustained. The judgment of the learned Single Judge in Writ Petition No. 826 of 1990 has to be upheld and the Special Ap peal No. 202 of 1992 filed against the said judgment has, therefore, to be dismissed. The first contention of Shri Khare is accord ingly rejected.
(3.) THE other Writ Petition No. 6360 of 1990 is directed against the order of the Commission refusing to approve the action of the Management for removal of Sri Dubey. THE Commission had disapproved the action of the Management on several grounds, one of which is the appointment of Manager of the College as Enquiry Officer. Regulation 35 Chapter III framed under the U. P. Intermediate Education Act which provides for appointment of Enquiry Of ficer is reproduced below: "35. On receipt of a complaint or an adverse report of fact of a serious nature, the Committee may in the case of a teacher appoint the Head Master or Principal or Manager as the Enquiry Officer (or the Manager may himself set up the enquiry if such power has been delegated to him by the Committee under the Rules) and in the case of Head Master or Principal, small sub-Com mittee with instructions to submit the report as expeditiously as possible". According to the said Regulation, in respect of a teacher, a Head Master, Prin cipal or Manager can be appointed to the Enquiry Officer but in the case of Principal or Head Master, a Small Sub-Committee has to be appointed for conducting discipli nary enqiry. In the instant case, Sri Dubey was a Lecturer and he was suspended and tried as a Lecturer and not as a Principal or Head Master. Therefore, the appointment of the Manager as Enquiry Officer under Regulation 35 cannot be said to be vitiated on that account. But the Manager who was appointed Enquiry Officer was an "inter ested person" in the matter. At least three of the charges levelled against Sri Dubey relate to insubordination and non- compliance of the orders of the Manager and the DIOS. These charges are based on the letters of the Manager himself. Sri Dubey has denied the charges of insubordination and disobedience of orders are or are not correct was a question to be decided by the Enquiry Officer. The Manager was thus a person vitially interested in geiting the charges levelled against Sri Dubey proved. In U. P. State v. Mohammad Nooh AIR 1958 S. C. 86, the disciplinary proceeding was held vitiated on account of the Enquiry Officer himself giving evidence in the enquiry. On that ground, the Enquiry Officer became disqualified to hold the enquiry because the two roles (one of Enquiry Officer and the other of a witness) could not be played by one and the same person. The reason was that such an Enquiry Officer was not ex pected to decide which of the two versions is correct. In Andhra Pradesh State Road Transport Corporation, Hyderabad and another v. Sri Satyanarayana Transports (Private) Ltd. Guntur and others. AIR 1965 S. C. 1303, the Supreme Court held that a person who tries a cause should be able to deal with the matter objectively, fairly and impartially. Such a person, therefore, "must be able to act above suspicion of unfairness". The relevant extract from the said decision of the Supreme Court is reproduced below: "it is an elementary rule of natural justice that a person who tries a cause should be able to deal with the matter before him objectively, fairly and impartially. As has been observed in the Jewitt's Dictionary of English Law, "anything which tends or may be regarded as tending to cause such a person to decided a case otherwise than on evidence must be held to be biased". If a person has a pecuniary interest in the case brought before him, that is an obvious case of bias which disqualifies him to try the cause. If a person is hostile to a party whose cause he is called upon to try, that again would introduce the infirmity of bias and would disqualify him from trying the cause. In dealing with cases of bias, it is necessary to remember that "no one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind". The broad principle which is universally accepted is that a person trying cause even in quasi-judicial proceedings, must not only act fairly, but must be able to act above suspicion of unfairness".;