Committee of Management Sri Hub Lal Inter College and Radhey Shyam vs State of U.P. and Others

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

This writ petition has been filed by the petitioners challenging the validity and correctness of the order dated 31.7.2008 passed by the District Inspector of Schools, Kaushambi which has been appended as Annexure-1 to the writ petition. By this order the DIOS, Kaushambi has directed that respondent No. 5, Sri Rashid Ahmad Khan who was working as adhoc lecturer in the college in question be appointed as Principal pursuant to selection by way of direct recruitment in pursuance to advertisement No. 1 of 2002.

The backdrop of the case is that one Sri Kanhai Ram working as lecturer in the college expired on 26.11.85 causing a vacancy. The DIOS accorded adhoc approval to the appointment of respondent No. 5 Rashid Ahmad Khan as Principal of the college w.e.f. 20.5.1993. Petitioner No. 3 namely, Sri Radhey Shyam claims that he has been appointed in the college as officiating/ad hoc Principal in the year 2000 whereas respondent No. 5 applied for the post of Principal pursuant to the advertisement No. 1 of 2002 in the year 2002 and was selected thereafter.

The contention of learned Counsel for the petitioners is that respondent No. 5 was not eligible for consideration of the post of Principal as he was not a permanent lecturer and that the Committee of Management had not forwarded his name to the Selection Board under Chapter II Regulation 6 of the Regulations framed under the U.P. Intermediate Education Act. Chapter II Regulation 6 of the Regulations provides that the post of Principal is to be filled up by a permanent lecturer and not by ad hoc lecturer.

Learned counsel for the petitioners has relied upon the case of Ram Kumar Vs. District Inspector of Schools and Others, in support of his contention that only a teacher serving in substantive capacity may be eligible for promotion and not the adhoc.

Sri Ashok Khare, learned Senior counsel assisted by Sri Dharmendra Kumar, learned Counsel for respondent No. 5 submits that earlier also the controversy of regular selection pursuant to advertisement No. 1 of 2002 was subject matter of litigation at the instance of petitioner No. 3 in Civil Misc. Writ Petition No. 53180 of 2003 which was allowed by the High Court by quashing the advertisement and selection process. Aggrieved by the said judgment and order of the High Court, the selected candidates as well as Commission went before the Apex Court in SLP (Civil Appeal) Nos. 3938 and 3939 of 2008 which was set aside holding the advertisement valid.

It is contended by Sri Ashok Khare, learned Senior Counsel appearing for the petitioners that in the circumstances this being the second writ petition challenging the same controversy is barred by principle of constructive res-judicata and it is not open to the petitioners to challenge the appointment of respondent No. 5 pursuant to advertisement No. 1 of 2002.

In so far as eligibility is concerned, Sri Ashok Khare, learned Senior counsel submits that the question of eligibility is not covered by Chapter II Regulation 6 of the Regulations framed under the UP. Intermediate Education Act, 1921 as the qualification for appointment on the post of Principal is lecturer whether ad hoc or permanent and that regulation only provide for 4 years teaching experience as per appendix IV and nothing more. He has relied upon explanation-II of Clause 2(b) of the Uttar Pradesh Secondary Education Services Selection Board, Rules, 1998 which is as under:

2(b) With regard to the post of Principal or Headmaster, the Management shall also forward the names of two seniormost teachers, along with copies of their service records (including character rolls) and such other records or particulars as the Board may require from time to time.

Explanation- For the purpose of this sub-rule ''seniormost teachers'' mean the seniormost teachers in the post of the highest grade in the institution, irrespective of total service put in the institution.

Sri Ashok Khare, learned Senior counsel appearing for respondent No. 5 has relied upon the judgment rendered in (2001) 3 UPLBEC 2545. Committee of Management. B.D. Bajoria Inter College, City and District Saharanpur and Ors. v. Director of Education (Secondary), U.P. Lucknow and Ors. wherein the Court has decided the question whether teaching experience on adhoc service should be included in consideration of eligibility and has answered the question in affirmative by holding that teaching experience even on adhoc service is to be taken into consideration for appointment on the post of Principal.

After hearing learned Counsel for the parties, on perusal of record and the case laws cited by them I am of the considered opinion that Chapter II Regulation 6 does not come into play in the facts and circumstances of this case. As regards the question of eligibility of a candidate requiring him to work on a substantive post as has been urged by Sri Anil Bhushan, learned Counsel for the petitioners is concerned, the only requirement for appointment of an incumbent on adhoc service is teaching experience of four years.

Furthermore, even if the name of respondent No. 5 has not been forwarded by the Committee of Managements as one of the seniormost teacher, the petitioner can not get any advantage for respondent No. 5 had applied against advertisement No. 1 of 2002 for direct recruitment and the DIOS has full power to forward the candidature of such teacher. He having been appointed by direct recruitment the present case can not be said to be case of appointment of Principal by way of promotion.

The judgment cited by Sri Anil Bhushan, learned Counsel for the petitioners Ram Kumar (supra) is not applicable to the facts of the present case as in that case the teacher appointed on ad hoc basis in CT grade claimed promotion in LT grade on adhoc bais.

In these circumstances, the Court held that adhoc teacher in CT grade was not entitled to be promoted in LT grade. There was no question of direct recruitment pursuant to advertisement issued by the Commission in that case. The matter already having been decided by the Apex Court in SLP the principle of constructive res-judicata will also apply.

For all the reasons stated above, the writ petition is dismissed. No order as to costs.