Shitla Prasad Srivastava, J. - (1.) THIS petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 1.6.81 passed by respondent No. 2 and for a mandamus directing the respondents not to give effect to the order dated 1.6.81 and the petitioners be allowed to continue the studies of the students according to the changed subjects already sanctioned by the Board. The brief facts leading to the present writ petitions are that Mahamana Malviya Samiti, Varanasi is running an Intermediate College known as Mahamana Malviya Inter College Bachchaon, under the Committee of Management of which petitioner No. 2 Luddur Ram is the Manager. It is stated that the College was formerly a High School and was raised to and recognised as Intermediate College by the U.P. Board of High School and Intermediate Education at Allahabad after obtaining approval from the State Government. It is stated that the College started the classes of XIth with effect from 27.8.80 in the subject in which sanction was accorded. It is further stated that during the course of admission and studies it was found that the students were not willing to opt History and Economics and preferred Psychology, Sociology and Geography. As such in order to accommodate students in the aforesaid subjects the petitioner applied for change of subjects to the Board on 5.9.80. The Board instead of permitting Geography permitted for the change of the subjects only in Psychology and Sociology and did not permit Geography. It is stated that in pursuance to the permission granted by the Board the District Inspector of Schools sent a communication dated 15.12.80 for running of the classes in the changed subjects subject to condition that the rooms would be roofed. Accordingly classes started immediately in the changed subjects after approval. Then the management applied for creation of the posts of lecturers and Principal for running the Intermediate College on 18.12.80. The District Inspector of Schools approved the creation of posts vide his communication dated 10.2.81. A communication dated 1.6.81 was received by the petitioner on 3.6.81 communicating that the permission granted for the change of subjects was withdrawn. The petitioner have challenged this order of withdrawal.
(2.) AN impleadment application was filed by one Sobh Nath Misra, a teacher in L.T. Grade of the Institution which was allowed. A counter affidavit has been filed by him. The State has not contested the matter, as such no counter -affidavit has been filed by the State. It appears that the learned Standing counsel at the time of admission stated before the court that the Board is prepared to hear the matter and decide the matter at an early date. Then the petitioners were directed to make a representation before the Board within one week and the Board was to decide the same within two weeks thereafter. This order was passed by the Court on 19.8.81. It appears that the representation was made to the Board as directed by the Court. The Board of High School and Intermediate Education sent a telegraphic communication dated 9.9.81 to the effect that the sanction for the change of the subject of psychology has been maintained but the change of the subject of Sociology has been withdrawn and the College has been directed to teach Economics as already directed. A true copy of the telegram has been filed on the record. The petitioners thereafter filed an amendment application and added a ground challenging the order dated 9.9.81 to the effect that the order was passed without giving opportunity of hearing to the petitioners and prayed for quashing of the order dated 9.9.81 (telegram) passed by the Board of High School and Intermediate Education and further for a mandamus directing the respondents not to enforce the aforesaid order. This amendment application was allowed by this Court on 11.2.82. In the counter -affidavit filed by the newly added respondent it is stated in para. 7 that the petitioners with malafide intention applied for the change of subjects to the Board and the respondent was a senior -most teacher in L.T. Grade in the institution with Master's degree in Economics and was entitled to be promoted on the post of Lecturer in Economics under 40% quota. The management of the institution was illegally interested in Sri Ramji Ram Yadav and Sri Jhoolan Ram. To defeat the rightful claim of the respondent the petitioners have sent letter to the Board for changing the subjects and Economics and History. The management of the institution was bent upon not to promote the respondent on the post of Lecturer in Economics. As such, it has with deliberate intention requested the Board to change the subject of Economics.
(3.) AS no counter affidavit has been filed by the State to support the order passed by the Board of High School and Intermediate Education it shall be presumed that the State is not in position to support the order. From the impugned order which has been filed as Annexure -8 to the writ petition it is apparent that the Board recognised the order dated 31.10.80 but there is no mention that any opportunity of hearing was given to the petitioners before passing such order. From Annexure -CA -2 which has been filed with the counter -affidavit i.e. a telegram given to the petitioners by the Additional Secretary is to the effect that the representation dated 26.8.81 has been decided to the effect that in place of History it should be read as psychology but the order regarding Economics shall remain as it is. From this telegram it appears that the petitioners were not heard at the time of consideration of their representation which was filed by them on the basis of an order passed by this Court and on the statement given by the learned standing counsel that the Board may reconsider the matter. Learned counsel for the private respondent has urged that the order is justified and as he was a person to be promoted to the post of Economics teacher, therefore, change of subject from Economics to other subject was only a motive of the petitioners to oust the respondent from getting the post therefore, the order passed by the respondents recognising its earlier order of sanction is justified in the eye of law.;