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Judgment
Pradeep Kant and Ved Pal, JJ.—This special appeal has been filed by respondent to the writ petition filed by the Committee of Management and another, challenging the interim order dated 18.9.2008 passed by the learned Single Judge, by means of which the learned Single Judge observed that it is the Management which has to decide to take work or not to take work from the respondent No. 4 (present appellant), but he is entitled to full pay, for which the petitioner (present respondents No. 1 and 2) has no objection. The order says that the matter be listed for final hearing on 14.10.2008 and till then the petitioners (respondents No. 1 and 2 to the present special appeal) may or may not take work from the respondent No. 4 (appellant) but will pay his salary.
The facts, which have given rise to the filing of the writ petition and the present special appeal are that the Committee of Management suspended the appellant vide order dated 14.8.2008. The District Inspector of Schools disapproved the suspension order vide order dated 28.6.2008. The Committee of Management filed a writ petition bearing Number 3828 (SS) of 2008 against the aforesaid order of the District Inspector of Schools disapproving the suspension of the appellant. The learned Single Judge (Shri Narayan Shukla, J.), while disposing of the writ petition vide order dated 15.7.2003, did not interfere with the order disapproving the suspension of respondent No. 4 but directed for reconsideration of the matter by the District Inspector of Schools as the Committee of Management desired to produce all relevant documents before him and also observed that during the pendency of the proceedings before the District Inspector of Schools, the Committee of Management of the College shall be at liberty to take work of Principal from the teacher, who is eligible in all respect to hold the post of Principal except Sri Raj Narayan Misra and if the proceeding is terminated in favour of the appellant, the respondents shall hand over the charge of Principal to the appellant.
The aforesaid order passed in the aforesaid Writ Petition No. 3828 (SS) of 2008 was served upon the District Inspector of Schools, who on 14.8.2008 passed an order revoking the order of suspension. The District Inspector of Schools in his order dated 14.8.2008 mentioned that power to suspend a teacher under Section16(G)(5) vests with the Committee of Management, whereas the present suspension order of the appellant has been passed by the Manager on 12.5.2008 and approval to the suspension order has been taken by the Committee of Management on 20.5.2008. According to the District Inspector of Schools, the said proceedings were against specific provision of the Act. He also found that Committee for making enquiry consisted of two Teachers Ramapati Pandey and Sudhakar Tripathi, whereas under the provision of Section 16(G) (3) read with Regulation 35, it is clear that enquiry of a teacher shall be conducted by the Manager or the Principal and such a Committee could be constituted only in case of Principal and, therefore, the Committee so constituted is beyond the scope of the Act and beyond authority. He also observed that the charge sheet is absolutely vague.
Learned Counsel for the appellant submitted that the Committee of Management is not willing to allow him to work as officiating Principal, therefore, such action has been taken, though the suspension order has not been passed by the competent authority and the District Inspector of Schools rightly revoked the same. His further submission is that once the suspension order has been revoked, the appellant is entitled to officiate as Principal and it is not the sweet will of the Committee of Management to deprive him of his statutory rights.
It is not in dispute that the appellant is the senior most teacher and is entitled to continue as officiating Principal till regular Principal is appointed, unless he can be deprived of his statutory right for any reason, which is permitted under law.
Learned Counsel for the appellant relied upon the case of Hemlata Agarwal v. District Inspector of Schools, Allahabad and others, 2003(50) ALR 318.
In response, Dr. L.P. Misra submitted that the appellant was found guilty of very serious charges and, therefore, he was suspended vide order dated 12.5.2008 by the Manager but later on since approval has been granted by the Committee of Management, therefore, the irregularities, if any, stand cured and in the presence of serious charges, he cannot be allowed to function as officiating Principal.
Dr. L.P. Misra has also made an effort to show that the appellant has applied for leave on the false pretext though he was detained in jail, which has been strongly refuted by the appellant''s Counsel, who further submits that resolution of the Committee of Management, by means of which the suspension order is said to have been approved, also mentions, about the criminal case, which matter is of the year 1997. Submission is that the grant of leave for the period 29.12.1997 to 14.1.2008 when he was in jail, cannot be a ground for disallowing the appellant to work on the post of officiating Principal after almost ten years from the date of the aforesaid incident and that the charge of financial irregularities is absolutely vague and non est.
Further submission is that the present special appeal has been filed against an interlocutory order and that right of the appellant of full salary having been protected by the learned Single Judge, the appellant cannot have any grievance as it is the prerogative of the Committee of Management either to take or not to take work.
True, normally and ordinarily a special appeal under Chapter VIII, Rule 5 would not lie against an interlocutory order, unless it decides some controversy finally but the fact remains that if any interlocutory order causes gross prejudice and results into miscarriage of justice affecting statutory rights of the appellant adversely, special appeal can be entertained.
For deciding as to whether the interlocutory order decides any controversy finally or not, it is essential to see the effect and impact of the interim order and also the legal right, if any, of the aggrieved person stands infringed.
The question as to whether the appellant was rightly suspended or the order passed by the District Inspector of Schools can stand the test of judicial scrutiny, are the questions which need be considered by the learned Single Judge and the Appellate Court would exercise restrain in recording finding on such issues in special appeal, where such question may not be taken as an issue.
There is one more aspect of the matter that on day one when the matter was taken up, the present appellant filed the counter affidavit and it is the specific case of the appellant that the learned Single Judge did not take the averments made in the counter affidavit into consideration and while granting time to file rejoinder affidavit and fixing the date for hearing, passed the order under appeal, adversely affecting and taking away the right of the appellant, being the senior most teacher, duly qualified for discharge of function of officiating Principal, which he was discharging on the date of filing of the writ petition.
In response, learned Counsel for the respondentCommittee of Management submitted that the counter affidavit was well before the learned Single Judge and that he has passed the order on application of mind and after considering all the facts and circumstances.
Perusal of the order under appeal does not show that the learned Single Judge considered the averments made in the counter affidavit or the legal position with respect to a teacher, who is senior most and that the suspension has been revoked on the ground that it was not passed by the Committee of Management and that the approval by the Committee of Management was given to the order which was passed by the Manager on 12.8.2008 on 20.5.2008.
Be that as it may, the effect of the approval given by the Committee of Management is required to be considered by the learned Single Judge, who would naturally record a finding as to whether such an approval would mean suspension of a teacher by the competent authority.
Since the impugned order has been passed without taking into consideration the counter affidavit and various legal pleas raised by the appellant and apparently taking to be an exparte motion, we are of the view that the aforesaid order cannot be sustained, which is hereby set aside.
It will be open to the learned Single Judge to consider the application for stay afresh and to pass appropriate orders after hearing the parties and may also decide the writ petition finally, if it is ripe for hearing and the parties'' Counsel cooperate.
The special appeal is allowed with no order as to costs.