Committee of Management, Jawahar Lal Smarak Inter College, Garayen, vs State of U.P. and Others

Devi Prasad Singh, J.—Heard learned Counsel for the parties.

The present writ petition has been preferred against the order passed by the District Inspector of Schools, Sultanpur (opposite party No.2) in pursuance to the provisions contained in Section 5(i)(ii)(iii) of U.P. High Schools and Intermediate Colleges Payment of Salary Act, 1971 (in short hereinafter referred as ''Act'') placing Jawahar Lal Smarak Inter College, Garayen, District-Sultanpur (in short hereinafter referred as college) under single operation on the ground that salary bill was not sent by the Management of the College for payment of salary to opposite party No. 4. The impugned order has been challenged on the ground that the opposite party No. 4 cannot resume duty on account of the fact that the writ petition filed against his selection was allowed by this Court and the entire selection was quashed. The Apex Court had directed to maintain status quo. When the order for placement was passed by the Apex Court, the opposite party No. 4 was not discharging duty as Principal of the College in question. Accordingly, it has been submitted that the order has been passed on unfounded ground in a very arbitrary manner and for extraneous reasons.

The submission of the Petitioner''s Counsel is that the selection to fill up the regular vacancies to the post of Principal as done by the Board was impugned in Writ Petition No. 19806/2002 in this Court at Allahabad by one Shiv Prasad Yadav on the ground of certain illegalities. On similar grounds other bunch of writ petitions were also filed challenging the process of selection adopted by the Board to fill up the vacancies of Principals.

One another Writ Petition No. 7585/2003 was filed at Allahabad. In the said writ petition, by interim order dated 17th February, 2003, this Court had directed the Board to declare the result of selectees. In pursuance thereof, on 2nd April, 2003, the result was declared by the Petitioner and the opposite party No. 4 was found to be selected for the post of Principal. Accordingly, Secretary of the Board vide his order dated 27th April, 2003 directed for compliance and enforcement of the select list. Thereafter, the D.I.O.S., Sultanpur by order dated 23rd April, 2003 had directed the Petitioner-Committee of Management to permit the opposite party No. 4 to join on the post of Principal. Copy of the order dated 23rd April, 2003 issued by the D.I.O.S. has been filed as Annexure-6 to the writ petition.

In response to the order dated 23rd April, 2003, the Petitioner-Committee of Management had sent reply dated 28th April, 2003, copy of which has been filed as Annexure-7 to the writ petition. By the reply dated 28th April, 2003, the Committee of Management expressed its view that the opposite party No. 4 cannot be permitted to resume duty on account of the fact that in Writ Petition No. 19806/02 filed by Shiv Prasad Yadav, an interim order dated 30th May, 2002 was passed by the High Court to maintain status quo and the Petitioner-Committee of Management was the party in the said writ petition. It appears that after the receipt of reply dated 28th April, 2003 and being not satisfied with the said reply, the D.I.O.S. had passed an order dated 31st May, 2003 placing the Petitioner-Committee of Management under single operation in pursuance to powers conferred by Section 5 of the Act. The copy of the order dated 31st May, 2003 passed by the D.I.O.S. has been attached as Annexure-8 to the writ petition. The order dated 31st May, 2003 was impugned by the Petitioner-Committee of Management in Writ Petition No. 3256/2003. In the said writ petition, this Court had passed interim order dated 16th June, 2003 and stayed the operation of the order dated 31st May, 2003. The interim order dated 16th June, 2003 passed by this Court as contained in Annexure-9 to the writ petition is reproduced as under:

Heard Sri U.K. Srivastava, learned Counsel for the Petitioner, Sri Subhash Chandra for opposite party No. 3 and Sri A.K. Verma, Additional Chief Standing Counsel for opposite party Nos. 1 and 2.

Admit.

Issue notice to opposite party No. 4.

Let counter affidavit be filed within four weeks and rejoinder be filed within two weeks thereafter.

Both the learned Counsel for Petitioner and opposite party No. 3 have admitted that the impugned selection for the post of Principal is challenged in bunch of writ petitions which are pending at Allahabad. It is also admitted that opposite party No. 4, the officiating Principal Sri S.P. Yadav has filed Writ Petition No. 19806 of 2002 which is also pending at Allahabad and in that writ petition status quo with regard to the service of the writ Petitioner has been maintained and this order is still operative. It is also admitted that Sri S.P. Yadav filed a Writ Petition No. 2989 (S/S) of 2003 before the Lucknow Bench and subsequently this writ petition has been withdrawn with a liberty to file a fresh petition at Allahabad where his earlier writ is pending. Both the parties have consented that this writ petition can also be transferred to Allahabad for disposal alongwith other bunch cases pending at Allahabad.

Place this petition before Hon''ble the Chief Justice for orders for listing this writ petition at Allahabad alongwith other bunch cases pending there. In the meantime the impugned order dated 31.5.2003, passed by the opposite party No. 2. District Inspector of Schools Sultanpur, Annexure-I to the writ petition, shall remain stayed.

It appears that inspite of the interim order dated 16th June, 2003 passed by this Court in Writ Petition No. 3256 (S/S)/2003, by order dated 11th June, 2003, the D.I.O.S. had attested the signature of opposite party No. 4 to work as Principal of the College. At the face of the record, it appears that the order dated 11th June, 2003 was passed by the D.I.O.S. in flagrant violation of interim order dated 16th June, 2003 passed in W.P. No. 3256(S/S)/2003 as well as the interim order dated 13th May, 2002 passed in W.P. No. 19806/2002.

However, feeling aggrieved with the order dated 11th June, 2003 copy of which has been filed as Annexure-10 the writ petition, the Petitioner-Committee of Management had submitted a representation to the Joint Director (Education). The Joint Director (Education) by order dated 11th July, 2003 copy of which has been attached as Annexure-12 to the writ petition, had stayed the operation of order of D.I.O.S. dated 11th June, 2003 by which the signature of opposite party No. 4 was attested. Accordingly, at the face of the record, on account of the order dated 11th March, 2003, the opposite party No. 4 was not supposed to discharge duty as Principal of the College in question.

Feeling aggrieved with the order dated 11th June, 2003, the Committee of Management had filed a contempt petition registered as Crl. Misc. Case No. 940 (C)/2003 in which notices were issued to the D.I.O.S., Sultanpur. The order dated 29th July, 2003 passed in contempt petition has been filed as Annexure-14 to the petition. For convenience, the order dated 29th July, 2003 is reproduced as under:

Ms. A. Kaur has put in appearance on behalf of opposite party No. 2 who prays for and is allowed four weeks time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks.

List on 18.8.2003. If by that date the order is not complied with, the opposite parties shall appear in person.

It is strange that inspite of the aforementioned interim order passed by this Court in two writ petitions as well as notice issued in contempt proceeding, the D.I.O.S. has passed the order dated 31st July, 2003 placing the Petitioner-Committee of management under single operation in pursuance to the powers conferred by Section 5 of the Act. Copy of the order dated 31st July, 2003 has been attached as Annexure-5 to the writ petition. The order dated 31st July, 2003 was again stayed by this Court in Writ Petition No. 2706 (M/S)/2003 by interim order dated 7th August, 2003, copy of which has been attached as Annexure-16 to the writ petition. For convenience, the interim order dated 7th August, 2003 passed in W. P. No. 2706 (M/S)/2003 is reproduced as under:

Admit.

Notice on behalf of opposite parties has been accepted by learned chief standing Counsel, who prays for and is allowed 6 weeks time to file counter-affidavit.

The learned Counsel for the Petitioner submits that the salary bills were sent under the signature of Sri Shiv Prasad Yadav, who is working as ad hoc Principal of the college. He further submits that there is already a status quo order dated 13.5.2002 passed in W.P. No. 19806 of 2002 which is pending in this Hon''ble Court at Allahabad.

In view of the above facts, the operation and enforcement of the impugned order dated 31.7.2003, passed by District Inspector of Schools, Sultanpur as contained in Annexure-1 to the writ petition, shall remain stayed.

It appears that the opposite party No. 2 had not complied with the order passed by this Court, hence contempt petition registered as Crl. Misc. Case No. 940(C)/2003 was filed. In the said contempt petition, again this Court had summoned the D.I.O.S. (opposite party No. 2) by order dated 19th January, 2004. The order dated 19th January, 2004 is reproduced as under:

The D.I.O.S. is not present. The learned standing Counsel has informed this Court that he could not communicate the last order to the D.I.O.S. Sri U.K. Srivastava, learned Counsel for the Petitioner submits that in spite of the order dated 13.5.2002, the signatures of the selected principal were verified on 11.6.2003. He further submits that the order dated 31.5.2003 was passed in clear disregard to the interim order passed by this Court. List this petition on 20.2.2004, by which date, if the order is not complied with, the D.I.O.S. shall appear before this Court.

In the meantime, the bunch of writ petitions filed at Allahabad was allowed by this Court by the judgment and order dated 16.10.2003 and all the selections done on the post of Principal of various colleges of the State of U.P. were quashed by this Court. A special appeal was preferred by the Government against the judgment and order dated 16th October, 2003 in the Apex Court. The Apex Court has issued notices to the parties and had passed an order on 19th January, 2004, copy of which has been filed as Annexure-19 to the writ petition. The order dated 19th January, 2004 is reproduced as under:

Permission to file SLP allowed.

Issue notice.

Status quo as on today shall be maintained.

Accordingly, in view of the interim order passed by the Apex Court, the status quo should have been maintained by the State of U.P. relating to the appointment and resumption of duty by the Principals who were selected by the commission. Thus, in all those colleges where duties were not resumed by the selectees upto 19.1.2004, i.e., on the date when the interim order was passed by the Apex Court, the officiating principals were entitled to discharge duties as Principal of the respective colleges.

In the present case, at the face of record, it is evident that when the Apex Court had passed the interim order, and on account of interim order passed by this Court in various writ petitions referred hereinabove, the opposite party No. 4 had not resumed duty. Accordingly, he was not entitled to work as Principal of the College in question. There in no material on record which may show that the Petitioner-Committee of Management had permitted the opposite party No. 4 to resume duty as Principal of the College in question. Moreover, since interim orders were passed by this Court in 3 writ petitions, referred herein above, it shall be out of question to presume that the opposite party No. 4 had taken over charge as principal of the college or he had resumed duty in any manner whatsoever. Any action taken by the authorities in violation of the interim orders passed by this Court shall be non-est or void ab initio.

However, Pt. S. Chandra, advocate while arguing on behalf of the opposite party No. 4 had submitted that the opposite party No. 4 has resumed duty in the college on 11th June, 2003. But the arguments advanced by Pt. S. Chandra, advocate seems to be based on unfounded facts under the facts discussed herein-above and the writ petitions filed by the Petitioner-Committee of Management and the interim orders passed by this Court. He further submits that Writ Petition No. 2989(S/S)/2003 filed by S. P. Yadav was dismissed by this Court with the liberty to file the petition at Allahabad. The order dated 4th June, 2003 passed by this Court has been attached as Annexure-C.A. 4 to the counter-affidavit.

While defending the impugned order, Sri M. B. Singh, learned standing Counsel has relied upon the order dated 23rd April, 2003 filed as Annexure-6 to the writ petition passed by the D.I.O.S. and submitted that once the District Inspector of School has directed the Petitioner-Committee of Management to permit the opposite party No. 4 to resume duty, then, it was incumbent on the Petitioner to comply with the order. The submission of learned standing Counsel seems to be misconceived as the order dated 23rd April, 2003 passed by the D.I.O.S. was stayed by this Court by interim order dated 16th June, 2003 passed in W.P. No. 3256(S/S)/2003, copy of which has been filed as Annexure-9 to the writ petition.

In view of the above, at the face of the record, the impugned order seems to be passed on unfounded grounds by the D.I.O.S. in flagrant violation of various interim orders passed by this Court referred hereinabove. It appears that since the opposite party No. 2 i.e., the D.I.O.S. could not restore the opposite party No. 4 in service in any manner on account of interference by this Court by orders passed in various writ petitions referred hereinabove, he had again passed the impugned order on the same ground based on unfounded facts by placing the college in question under single operation. Atleast the impugned order amounts to circumvent the orders passed by this Court. The D.I.O.S. has proceeded to pass the impugned order inspite of the fact that he was summoned by this Court twice in contempt proceedings and orders passed by him were stayed by this Court as well as by Joint Director (Education) in the manner stated hereinabove.

It is a settled law that order passed by an authority cannot be treated as non existing. An order exists unless it is quashed or seized to operate for any reason. The Apex Court in a case, State of Uttranchal and Ors. v. Sidharth Srivastava and Ors. 2003 (5) AWC 3580 (SC) : 2003 (3) SCCD 1285 : (2003) 9 SCC 336 held as under:

The other reason given to ignore that said Government order is that the same was issued after appointed day. Merely because the said Government order was issued after the appointed day, it could not be simply ignored without considering the legality and validity of that order, in the light of the relevant constitutional provisions and provisions of the Act. The order exists unless it is quashed or it ceases to operate for any other reason.

Moreover, a person cannot claim benefit of any order passed by a body or institution or authority, in case, it has been passed during the continuance of interim order of stay passed by this Court. Once this Court had passed an interim order which resulted into denial of private Respondent No. 4 to resume duty, then the decision taken by the D.I.O.S. ignoring the order passed by the High Court will be non est and in any manner will not create a ground in favour of the private Respondent No. 4 to claim that he had joined duty. The action taken in violation of the order passed by the High Court or Apex Court will not create a ground to claim the benefit in any way whatsoever. From the record, it is apparent that the Committee of Management has never permitted private Respondent No. 4 to resume duty. Accordingly, keeping in view the order passed by the Apex Court to maintain status quo the opposite parties will have no right to resume duty. Accordingly, the impugned order, at the face of the record, has been passed on unfounded grounds and substantially illegal.

Apart from the above, it is also obvious from the sequence of events narrated hereinabove, the D.I.O.S. had not acted fairly. He had tried to circumvent the orders passed by this Court by passing multiple orders for extraneous reasons. Action on the part of opposite party No. 2 in any way cannot be defended and at the face of the record, it amounts to abuse of the process of law.

Under the facts and circumstances, the writ petition deserves to be allowed with cost. Accordingly, a writ of certiorari is issued quashing the impugned order dated 6th February, 2004 as contained in Annexure-1 to the writ petition with all consequential benefits and the Petitioner-Committee of Management shall be entitled to perform duty in accordance to rules and law. A cost of Rs. 2,000 shall be payable by the opposite party No. 2, D.I.O.S. Asharfi Lal from his own income. The cost shall be deposited in this Court in the Account of Legal Aid Cell of the High Court within two months from today. In case, within the provided period, the cost is not deposited, the District Magistrate, Sultanpur or the District Magistrate of District where the opposite party No. 2 is working shall recover the same as arrear of land revenue and send the same to Lucknow Bench of High Court. Registrar shall ensure the compliance of this order.