The C/M, Kasturba Gandhi Kanya Inter College and Others vs State of U.P. and Others

Pradeep Kumar Singh Baghel, J.—The petitioner No. 1 is a Committee of Management of a recognized institution, namely, Kasturba Gandhi Kanya Inter College, Kaushambi1. Its manager has joined the petition as petitioner No. 2. The petitioners have sought to challenge the orders passed by the Uttar Pradesh Secondary Education Services Selection Board, Allahabad2 dated 08th October, 2013, whereby selection of the regular Principal of the institution has been held to be illegal, communication issued by the Secretary of the Board dated 08th November, 2013, by which the Board has directed the District Inspector of Schools not to allow the selected candidate at Serial No. 1, namely, Smt. Vijay Laxmi to take charge as a regular Principal and it directed to appoint the fifth respondent, namely, Smt. Neelam, who was at Serial No. 2 in the merit list, as Principal and the consequential orders issued by the Board and District Inspector of Schools for joining of the fifth respondent.

A brief reference to the factual aspects would suffice.

Kasturba Gandhi Kanya Inter College, Kaushambi is an institution recognized by the Board of High School and Intermediate Education, Uttar Pradesh, Allahabad. The institution is a girls'' college wherein the education is imparted up to the level of Intermediate. It receives aid out of the State fund. The institution is governed by the provisions of the Uttar Pradesh Intermediate Education Act, 19213 (U.P. Act No. II of 1921), Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971), and the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (U.P. Act No. 5 of 1982). The affairs of the institution are managed by the petitioner No. 1 i.e. Committee of Management, which claims that it is duly recognized by the educational authorities.

The present dispute arose in respect of the office of the Principal of the institution. On 30th June, 2003 the regular Principal of the institution Smt. Kanti Pandey retired after reaching the age of superannuation. Thereafter one Smt. Vijay Laxmi, who was the senior-most Lecturer in the institution, assumed the officiating charge of the office of the Principal. It is stated that the Committee of Management had already sent a requisition on 31st January, 2003 to the Board for selection of the regular Principal.

The Board advertised the post of Principal of the institution vide its Advertisement No. 2 of 2008. Smt. Vijay Laxmi, who was continuing as an officiating Principal, was called for interview in terms of Rule 6 of the Uttar Pradesh Secondary Education Services Commission Rules, 1983. The said rule enjoins that two senior most teachers of the college concerned shall be considered for the post of Principal along with other candidates of the direct recruitment. Accordingly, names of two senior-most teachers including Smt. Vijay Laxmi were sent by the institution for consideration for the post of regular Principal. Smt. Vijay Laxmi, whose date of birth is 30th September, 1948 reached her age of superannuation on 30th September, 2010. As her date of retirement fell in the midst of academic session, she was allowed to continue till the end of academic session i.e. 30th June, 2011 in terms of Regulation 21 of Chapter-III of the Regulations framed under the Act, 1921, which provides that if date of birth of a Principal/Headmaster or teacher falls during the academic session i.e. between 2nd July and 30th June, he/she shall be allowed to complete the academic session i.e. till 30th June. Thus, Smt. Vijay Laxmi was allowed to continue till 30th June 2011.

In the meantime, the name of Smt. Vijay Laxmi was sent to the State Government for extension of her services for two years on account of she being an National awardee. The State Government accepted the proposal and extended her services for two years from 01st July, 2011. Relevant it would be to mention that the State Government has taken a policy decision to extend the services of such teachers who have been awarded National/State Award for two years but by virtue of said extension the Principal/Headmaster shall continue on the post of the teacher. A copy of the said extension order dated 30th June, 2011 is on the record as annexure-3 to the writ petition.

On the very next day of completion of academic sessions by Smt. Vijay Laxmi i.e. 1st July, 2011, the Board notified the panel for the post of Principal of the institution in which Smt. Vijay Laxmi was placed at Serial No. 1 and Smt. Neelam, the fifth respondent, was placed at Serial No. 2.

The aforesaid order of the Board dated 01st July, 2011 recommending the name of Smt. Vijay Laxmi at Serial No. 1 for appointment on the post of Principal, was challenged by Smt. Neelam, the fifth respondent, by way of Writ-A No. 73001 of 2011, Smt. Neelam v. State of U.P. and others, on the ground that on the date of the interview i.e. 16th March, 2011 Smt. Vijay Laxmi stood retired and she was allowed to continue till the end of academic session, thus a retired teacher could not have been permitted to face the interview.

In the meantime, the District Inspector of Schools, after receiving the panel of the selected candidates from the Board, sent a communication dated 29th July, 2011 to the Secretary of the Board for verification of panel of the selected candidates. Again vide communication dated 02nd January, 2012 the District Inspector of Schools sought guidance of the Board for giving charge to Smt. Vijay Laxmi. Thereupon, the Board sent a communication dated 17th January, 2012 to the District Inspector of Schools that selection of Smt. Vijay Laxmi was illegal as she had attained the age of superannuation before the interview. In the said communication the Board has relied upon a judgment of a Full Bench of this Court in Special Appeal No. 1987 of 2009 and in view of the law laid down in the said case, the Board took a decision that Smt. Vijay Laxmi may not be permitted to join as a regular Principal of the institution.

Consequently, on 08th October, 2013 the Board cancelled the selection of Smt. Vijay Laxmi on the ground that after attaining the age of superannuation she was not entitled to be appointed as a regular Principal of the institution. Thereafter, on 08th November, 2013 the Secretary of the Board issued a communication to the District Inspector of Schools to permit the fifth respondent, who was placed at Serial No. 2 in the panel notified on 01st July, 2011, to join the institution as a Principal. Consequential orders dated 22nd January, 2014 issued by the Board to the District Inspector of Schools and 27th February, 2014 issued by the District Inspector of Schools to the Manager of the institution regarding joining of Smt. Neelam have also been issued.

From the record it transpires that Smt. Vijay Laxmi, who was granted two years'' extension by the State Government, has completed her extended period also on 30th June, 2013. Thereafter, one Smt. Rekha Singh was stated to be appointed as an ad hoc Principal of the institution. Smt. Rakkha Singh had filed a writ petition, being Writ-A No. 64594 of 2013 (Smt. Rekha Singh v. State of U.P. and others), claiming that she should be given charge of the Principal of the institution as she was senior-most teacher and she challenged the selection of fifth respondent. The writ petition of Smt. Rekha Singh has been dismissed by this Court vide order dated 06th December, 2013 holding that she cannot resist the recommendation made by the Board.

Against this background, the present writ petition has been filed by the Committee of Management challenging the aforesaid orders and/or communications dated 08th October, 2013, 08th November, 2013, 22nd January, 2014 and 27th February, 2014.

It is significant to note that prior to filing of the present writ petition by the Committee of Management on 21st April, 2014, Smt. Neelam, the fifth respondent, on 02nd April, 2014 had filed a writ petition, being Writ-A No. 20077 of 2014 (Smt. Neelam v. The State of U.P. and others), for a direction upon the Committee of Management of the Institution to issue appointment letter and permit her to join the institution on the post of Principal in pursuance of the letter of the District Inspector of Schools dated 27th February, 2014. In the said writ petition of the fifth respondent, this Court on 16th April, 2014, after hearing learned counsel appearing for all the parties, has directed the District Inspector of Schools and the Manager of the institution, who were present in the Court on that day, to permit the fifth respondent herein Smt. Neelam to join as Principal and attest her signatures forthwith. On 24th April, 2014 this Court has passed an order in the writ petition of the fifth respondent recording the fact that the District Inspector of Schools has written letters to the Manager to allow joining to the fifth respondent but the Manager has not allowed the joining and has filed the present writ petition.

I have heard Sri P.N. Saxena, learned Senior Advocate, assisted by Sri Nisheeth Yadav, learned counsel for the petitioners, Sri Shiv Nath Singh, learned Counsel appearing for the second respondent-Uttar Pradesh Secondary Education Services Selection Board, Allahabad, learned Standing Counsel for the State-respondents, and Sri R.C. Dwivedi, learned counsel appearing for the fifth respondent.

Learned Senior Counsel appearing for the petitioners submitted that Smt. Vijay Laxmi was awarded President Award and her services were extended for two years by the State Government, therefore, her date of superannuation stood modified to 30th September, 2012 and as such, her participation in the interview held by the Board on 16th March, 2011 was absolutely valid and so was her selection at Serial No. 1 in the select panel dated 01st July, 2011. It is further submitted that the date of select panel is 01st July, 2011 and the life of the select panel is only one year, therefore, the orders of the Board dated 08th October, 2013, 08th November, 2013 and 22nd January, 2014, annexures-4, 5 and 6 to the writ petition, are wholly erroneous and illegal. It was lastly urged that when selection of Smt. Vijay Laxmi was made, she had neither attained the age of superannuation nor was she on extension till the end of academic session as she was granted extension of service being President Award winner in recognition of her own merit and not for the benefit of the students. Learned counsel for the petitioners has placed reliance on a judgment of a Division Bench of this Court in Shanti Kumar Tiwari Vs. State of U.P. and Others, .

Sri R.C. Dwivedi, learned counsel for the fifth respondent Smt. Neelam, has submitted that the Committee of Management has no locus standi to challenge the order passed by the Board recommending the name of the fifth respondent to join as regular Principal of the institution. In support of his submission, he has placed reliance on the judgments of this Court in Johari Devi Girls Inter College, Kanpur and another v. U.P. Secondary Education Services Commission, Allahabad and others (1990) 1 UPLBEC 634 , Kishori Raman Shiksha Samiti and Others Vs. Regional Depnty Director of Education and Others, , Kishori Raman Shiksha Samiti and Others Vs. Regional Depnty Director of Education and Others, . He further submitted that on the basis of the award given to Smt. Vijay Laxmi, she was entitled to continue as a teacher only. In this regard, he has referred a Government Order dated 06th May, 1982. He has also placed reliance on a judgment of a Division Bench of this Court in Dr. Prem Dutt Chamoli Vs. State of Uttar Pradesh and Others, . Lastly, he urged that after attaining the age of superannuation, no selection on the post of Principal can be made. In this regard, he has placed reliance on the judgments of the Division Bench of this Court in the case of Committee of Management, Jagdish Saran Rajvanshi Kanya Inter College Meerut and another Vs. Joint Director of Education and others, , and Arun Kumar Jaiswal v. State of U.P. and others Special Appeal No. 1415 of 2009, decided on 11th April, 2013..

I have considered the rival submissions advanced by the learned counsel for the parties and perused the record.

The first question which needs to be considered is whether the selection of Smt. Vijay Laxmi was valid. Indisputably, the date of birth of Smt. Vijay Laxmi is 30th September, 1948. Thus, she reached age of her superannuation on 30th September, 2010. The interview for the post of Principal was held on 16th March, 2011, i.e. after her date of superannuation on 30th September, 2010. It is true that she was entitled to continue till the end of academic session in terms of Regulation 21 of Chapter III of the Regulations framed under the Act, 1921. The purpose of such extension for a teacher has been considered by this Court in a large number of judgments. The basic object of providing such provision under the U.P. Intermediate Education Act as well as in the State Universities Act is not for the interest of the teacher, but in the interest of the students as if the teacher retires in the mid session, the studies of the students would suffer. Of course, if a teacher is holding the post of officiating Principal or regular Principal, he/she would continue till the end of academic session. In the case in hand, on the date of the interview Smt. Vijay Laxmi had already reached her age of superannuation. Thus, there was no question of her appointment as a regular Principal of the institution. In any view of the matter, even after her selection, she could not have been appointed as the panel itself was notified on 01st July, 2011 i.e. after the extension of her superannuation.

The next question which arises for consideration is that what would be the effect of the President Award given to Smt. Vijay Laxmi, whereby her term was extended for two years. A copy of her extension order is on the record as Annexure-3 to the writ petition. The State Government in its order dated 30th June, 2011 has extended the services of 15 teachers for two years from 01st July, 2011. Name of Smt. Vijay Laxmi finds place at Serial No. 15. Relevant it would be to mention that in the order itself it has been made clear that the extension of such teacher shall be on the teaching post. Thus, it is evident that the benefit of such extension would not be available on the administrative post. The Court is not oblivious of the fact that in the definition of the ''teacher'' the word ''Principal'' is included, but there was no need for the State Government to specify that during the extended period, the teacher shall continue on the teaching post. This condition also underlines the purpose and object of Regulation-21 of Chapter III of the Regulations framed under the Act, 1921, wherein the extension of service is provided to a teacher whose date of birth falls between 02nd July to 30th June.

The similar issue whether a teacher can be selected as a Principal after attaining the age of superannuation, arose and was considered by this Court in the case of Committee of Management, Jagdish Saran Rajvanshi Kanya Inter College, Meerut (supra). In the said case also, the candidate who was selected by the Commission at Serial No. 1 had already attained the age of superannuation. The Court held that once a teacher has attained the age of superannuation, he has no vested right to continue in service and no order of appointment could be issued in favour of such teacher. The relevant part of the judgment reads as under:

"From the aforesaid discussions, it is clear that once a teacher has attained the age of superannuation, in other words age of 60 years or 58 years, as the case may be, he has no vested right to continue in service. The order of appointment, thus, could not be issued in favour of such teacher though selected for the post by the Commission, after attaining the age of superannuation. In our opinion, the educational authorities as well as Committee of Management were not justified in issuing the letter of appointment in favour of teacher for the post of Principal who had already attained the age of superannuation. Under no provision of the Act or the Rules or the Regulations such action can be justified as the panel became ineffective and it was not required to be implemented in respect of candidate who had already attained the age of superannuation. The only step required by the authorities of the education department and the Committee of Management was to issue the letter of appointment in favour of the next candidate shown in the order of preference."

The judgment in Committee of Management, Jagdish Saran Rajvanshi Kanya Inter College, Meerut (supra) has been followed recently by a Division Bench of this Court in Arun Kumar Jaiswal (supra). In the said case also, the post of Principal fell vacant in a recognised institution and the select panel was notified by the Board on 24th January, 2009. One Sri Ram Pyare Pandey, who was at Serial No. 1 in the select panel, had attained the age of superannuation by the date of notification of panel.

A Full Bench of this Court in the case of Surendra Prasad Agnihotri and Abu Mohd. Khan Vs. State of U.P. and Others, has also held that a teacher after he attains the age of superannuation cannot be offered any appointment either by way of direct recruitment or by way of officiating appointment. The relevant part of the decision reads as under:

"19. We may clarify that a teacher, after he attains the age of superannuation, cannot be offered any appointment either by way of direct recruitment or by way of officiating appointment and it is for this reason that the teacher, after attaining the age of superannuation, cannot claim appointment as Ad-hoc Principal, when he is continuing as teacher till the end of the academic session under Regulation 21 of Chapter-III. The fact situation in respect of such teacher is entirely different viz-a-viz a teacher who was appointed as Ad-hoc Principal before attaining the age of superannuation and is to continue on the strength of his seniority alone till regularly selected Principal is appointed or till the 30th June, following his age of superannuation under Regulation 21 of Chapter-III."

In view of the above, Smt. Vijay Laxmi, who admittedly reached her age of superannuation on 30th September, 2010, was not entitled for her appointment on the post of Principal of the institution for the reasons mentioned above. Therefore, I find that the order of the Board cancelling the appointment of Smt. Vijay Laxmi does not suffer from any illegality.

Insofar as the submission of learned counsel for the petitioners, Committee of Management, that Smt. Vijay Laxmi was granted two years'' extension as she was awarded the President Award is concerned, as discussed above, a perusal of the order itself indicates that the extension of two years was granted as a teacher only and not as a Principal of the institution. A copy of the order is on the record as annexure-3 to the writ petition. The relevant part of the order reads as under:

Thus, it is evident that she could have continued as a teacher and not as a Principal of the institution.

As regards the submission of learned counsel for the respondents that the petitioners have no locus standi to challenge the order of the Board and the District Inspector of Schools for the appointment of the fifth respondent is concerned, I find considerable force in the said submission. A Division Bench of this Court in the case of Johari Devi Girls Inter College, Kanpur (supra) has dismissed the writ petition of the Committee of Management challenging the recommendation of the Uttar Pradesh Secondary Education Services Selection Board for appointment of a candidate as a Principal. The Committee of Management had challenged the selection. The writ petition was dismissed on the ground of locus. Relevant part of the judgment reads as under:

"3. We do not consider it necessary to go into the question as to whether the provisions as contained in Rule 7(2) are mandatory to the extent that every panel prepared by the Commission in accordance with law shall automatically lapse upon the expiry of a period of one year from the date of its notification. In our opinion this petition can be disposed of on the short ground that the petitioners do not have sufficient locus standi to maintain this petition on the ground on which it is being maintained in this Court. This is not the case of the petitioners, nor can it be, that the commission selected the candidates without complying with the requisite rules. The selectees of the Commission were not in any manner disqualified to appoint a Principal. There has to be a Principal of the Institution, and the management has got to appoint Principal upon the recommendation of the Commission. In this situation, we feel that the petitioners should not be allowed to frustrate the recommendations of the Commission on a mere technicality, although we do not consider it a fit case for interference in the exercise of jurisdiction under Article 226 of the Constitution."

The judgment of Johari Devi Girls Inter College, Kanpur (supra) has been followed by this Court in the case of Kishori Raman Shiksha Samiti (supra). The relevant part of the judgment being paragraph-14 is reproduced hereunder:

"14. Learned counsel for the respondents placed reliance on a Division Bench view of this Court mentioned in Jauhari Ram Girls Inter College''s case (supra). The Division Bench in this case rejected the writ petition of the management on the ground that they had no locus standi to object the appointment of a candidate mentioned in the panel and recommended by the Commission. Learned counsel for the respondents submitted that the management in the present case also has no locus standi to resist the appointment of Smt. N.A. Zubiri as she is a duly selected candidate and has been recommended by the Commission for appointment, which was never challenged by the management. In my opinion, the view expressed by the Division Bench is squarely applicable to the facts of the present case also. The management has been resisting the appointment for all this long period on the basis of the technical plea that panel recommended by the Commission had exhausted. As clear from the material on record the vacancy arose in 1981, the candidates for appointment were recommended in 1984. However, the recommendation made by the Commission could not be implemented for all these years on account of unfortunate litigation pursued by the management for no gain except to keep the institution without a properly selected head of the institution. Several writ petitions and suits were contested between parties involving loss of valuable time and money. Such kind of reckless litigation cannot be appreciated on the part of the management. In my opinion, the department was fully justified in recommending the name of Smt. N.A. Zubiri for appointment by order dated 12th March, 1984."

The aforesaid judgment of the learned Single Judge was affirmed by a Division Bench in special appeal in the case of Kishori Raman Shiksha Samiti and Others Vs. Regional Depnty Director of Education and Others, . The Division Bench has held as under:

"9. In our opinion, the Committee of Management is not aggrieved by the appointment of Smt. Zubiri as Principal of the institution in a real sense and has thus no locus-standi to file the writ petition. It is not a case where a rank outsider who has no semblance of a right is being implanted as a Principal by education authorities. Smt. Zubiri is working on the post of Lecturer since 4-10-1964 and was placed at Sl. No. 2 by the Selection Commission in the selection held for the post of Principal. It is true that she has come on transfer to this institution in July, 1981 and Smt. Radha Agrawal was appointed in July, 1971 but in view of Regulation 59-A(c) of Chapter-III of Regulations framed under the U.P. Intermediate Education Act, the services rendered by her in the institution from where she was transferred are also liable to be counted towards her total length of service."

In view of the above, the writ petition is liable to be dismissed on the ground that the Committee of Management has no locus to file the writ petition.

Insofar as the submission of learned counsel for the petitioners that life of the panel has lapsed, I find that that in view of the law laid down in Johari Devi Girls Inter College, Kanpur (supra), there is no need to examine the said submission, as the writ petition is liable to be dismissed on the ground of locus standi.

For the reasons stated above, I am of the view that the writ petition lacks merit and is liable to be dismissed. Accordingly, it is dismissed.

No order as to costs.

1institution

2Board

3Act, 1921