High Court
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Cited in this judgment
Heard learned counsel for the petitioner and Sri Vivek Shukla, learned Additional Chief Standing counsel appearing on behalf of the State- respondents. Issue notice to the respondents no. 5, 6 & 7 returnable at an early date. Steps be taken within a week. Under challenge is the order dated 05.12.2024 passed by the State Government, a copy of which is annexure 1 to the writ petition. Also under challenge is the order dated 09.12.2024, a copy of which is annexure 2 to the writ petition. Vide order dated 05.12.2024, the State Government acting purportedly in compliance to the order dated 03.09.2024 passed in Writ-A No. 2923 of 2024 Inre; Dr. Sanjay Mishra Vs. State of U.P and Ors, a copy of which is annexure 25 considering that a liberty had been granted for adjustment/placement of respondent no. 5 (in the said petition) in any other institution in accordance with law has directed the Director High Education, Prayagraj to post the respondent no. 5 herein at the DAV PG College, Lucknow on the post of Principal. In purported compliance to the said order, the Director of Education has passed the order impugned dated 09.12.2024 posting the respondent no. 5 as Principal of the institution. The petitioner is the officiating principal of the institution in question i.e the respondent no. 6 & 7, having been appointed as a Officiating Principal upon the resignation of the regular principal whose resignation had been accepted on 26.01.2024 and he had been relieved on 31.01.2024. The petitioner was appointed as an Officiating Principal on 31.01.2024 vide order 31.01.2024, a copy of which is annexure 9 to the writ petition (page 76 of the petition). Upon filing of the instant writ petition, Sri Vivek Shukla, learned Additional Chief Standing counsel has raised the ground of locus of the petitioner to challenge the orders impugned by contending that as a regularly selected person who has been selected in accordance with the Uttar Pradesh Higher Education Services Commission Act, 1980 (hereinafter referred to as "Act, 1980") is being sought to be posted as a regular Principal i.e the respondent no. 5 consequently, the petitioner being only an officiating principal, would have no locus to challenge the said order. In this regard, reliance has been placed on the Full Bench judgment of this Court in the case of Jai Prakash Narayan Singh Vs. State of U.P and Ors- 2014 (8) ADJ 617, Umrao Singh Vs. District Inspector of Schools and Ors- 2002 (5) AWC 4199 All & Smt. Sudha Rani Upadhyay Vs. State of U.P and Ors- 2013 SCC OnLine All 3903. On the other hand, learned counsel for the petitioner with regard to he having locus to challenge the orders impugned has placed reliance on the judgment of the Apex Court in the case of Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and Ors- 1998 (3) SCC 45 and Division Bench judgment of this Court in the case of Bhramchari Shambhu Nath Vs. State of U.P and Ors-2016 (11) ADJ 513. Incidentally, the Apex Court in the case of Kamlesh Kumar Sharma (supra) has clearly gone into the question of locus of an Officiating Principal to challenge the order and has held that an Officiating Principal would have locus to challenge the order of posting of a regular principal in certain eventualities. Likewise, the Division Bench of this Court in the case of Bhramchari Shambhu Nath (supra) has also considered the question of locus and has held that a Officiating Principal would have the locus to challenge the order of posting of a regular Principal where such posting has not been made in accordance with law. Elaborating the same, learned counsel for the petitioner states that the respondent no. 5 had been selected by the Commission in the list dated 05.10.2021 in which his name finds placed at Serial No. 236. Initially the respondent no. 5 had been placed on 22.10.2021 with the Gayatri Vidyapeeth PG College, Reseia, Bahraich on order of Director of Higher Education, a copy of which is annexure 15 to the writ petition but the respondent no. 5 chose not to join in the said institution. Subsequent thereto, the Director of Education vide letter dated 17.08.2023, a copy of which is annexure 16 to the writ petition has clearly indicated that once the respondent no. 5 i.e Dr. Ashok Kumar Dubey had been allotted an institution in which he failed to join consequently, there is no occasion for a fresh order of joining to be issued for respondent no.5. Learned counsel for the petitioner contends that thereafter the State Government stepped in and initially passed an order dated 12.01.2024, a copy of which is annexure 17 to the writ petition for posting the respondent no. 5 to Shri Bappa Narayan Vocational College, Lucknow against the vacant post of Principal but the Committee of Management did not permit the respondent no. 5 to join on the said post. Subsequently, another order dated 04.03.2024, a copy of which is annexure 19 to the writ petition was passed by the State Goverment directing the Director of Higher Education to take appropriate action for the purpose of joining of the respondent no. 5. In the meanwhile, one Dr. Sanjay Mishra who was working as Officiating Principal in the Shri Bappa Narayan Vocational College, Lucknow raised challenge to the posting of respondent no. 5 by filing Writ-A No. 2923 of 2024 (supra) wherein initially this Court passed an order of status quo vide order dated 31.05.2024 (page 124 of the writ petition). Thereafter, after going into the question of locus of an Officiating Principal to file the writ petition, this Court overruled the preliminary objection vide order dated 22.07.2024, a copy of which is annexure 24 to the writ petition. Subsequent thereto, the respondent no. 5 filed an affidavit in the said petition categorically stating that he was no longer interested in being placed as Principal of the college concerned and had submitted that his right of placement/adjustment in any other college be kept reserved. On the basis of the said affidavit, the writ petition was allowed quashing the order by which the respondent no. 5 had been placed and posted in the institution in question and giving liberty to the respondents to adjust/place the respondent no. 5 in any other institution in accordance with law. In pursuance thereof, the order impugned dated 05.12.2024, a copy of which is annexure 1 to the writ petition has been passed by the State Government for posting the respondent no. 5 in the DAV PG College, Lucknow and based on the said order, the competent authority i.e the director of Education has passed the order impugned dated 09.12.2024 for posting the respondent no. 5 in the institution in question on the post of Principal which is being held by the petitioner on an officiating basis. The question which arises is the locus of the State Government to have passed any order more particularly the order impugned dated 05.12.2024 for posting the respondent no. 5 in the institution in question more particularly when prima facie the State Government has no role keeping in view the provisions of the Act, 1980 and the fact that the Director of Education vide letter dated 17.08.2023 had categorically indicated that once the respondent no. 5 had failed to join in the institution to which he had been placed initially i.e at Bahraich consequently, there cannot be any occasion for the respondent no. 5 to be allotted any college or for a fresh order of joining. It could be understood that the Director of Education could have issued an order on his own accord by indicating the provisions under which the order was being issued subsequent to the order dated 17.08.2023 but once the order impugned dated 09.12.2024 is being issued, though by the competent authority, yet at the dictates of the State Government, which prima facie would have no role in the matter keeping in view the provisions of the Act, 1980 as such, it would be deemed that the competent authority has failed to exercise the jurisdiction, if any, that may be vested with him of passing of an order without prejudice to the order dated 17.08.2023 which had been passed by him earlier and consequently, the principle of law as laid down by the Apex Court in the case of Anirudhsinhji Karansinhji Jadeja and Another v/s State of Gujarat-1995 (5) SCC 302 would be attracted whereby vitiating the orders impugned. On the other hand, Sri Vivek Shukla, learned Additional Chief Standing counsel on the basis of oral instructions states that the State Government has passed the order impugned dated 05.12.2024 considering the liberty that has been granted by this Court vide order dated 03.09.2024 in the case of Dr. Sanjay Mishra (supra). The aforesaid argument is found to be prima facie fallacious considering that this Court vide order dated 03.09.2024 had granted liberty to the respondents to adjust/place the respondent no. 5 in any other institution in accordance with law and learned Additional Chief Standing counsel on the basis of instructions has miserably failed to indicate as to how the State Government has got the power "in accordance with law" to have enabled it to pass the order impugned dated 05.12.2024 more particularly when the Act, 1980 prima facie does not vest with the power with the State Government to pass any order with regard to the placement of the selected candidate. Considering the aforesaid, prima facie the Court finds that the petitioner has locus to file the instant writ petition and hence the preliminary objections are rejected at this stage. Keeping in view the aforesaid discussion, a prima facie case for interference is made out. As such, until further orders of this Court, the operation of the impugned orders dated 05.12.2024 & 09.12.2024, copies of which are annexures 1 & 2 to the writ petition shall remain stayed. Learned Additional Chief Standing counsel prays for and is granted four weeks time to file a counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List thereafter. Order Date :- 7.1.2025 Pachhere/-
Heard learned counsel for the petitioner and Sri Vivek Shukla, learned Additional Chief Standing counsel appearing on behalf of the State- respondents. Issue notice to the respondents no. 5, 6 & 7 returnable at an early date. Steps be taken within a week. Under challenge is the order dated 05.12.2024 passed by the State Government, a copy of which is annexure 1 to the writ petition. Also under challenge is the order dated 09.12.2024, a copy of which is annexure 2 to the writ petition. Vide order dated 05.12.2024, the State Government acting purportedly in compliance to the order dated 03.09.2024 passed in Writ-A No. 2923 of 2024 Inre; Dr. Sanjay Mishra Vs. State of U.P and Ors, a copy of which is annexure 25 considering that a liberty had been granted for adjustment/placement of respondent no. 5 (in the said petition) in any other institution in accordance with law has directed the Director High Education, Prayagraj to post the respondent no. 5 herein at the DAV PG College, Lucknow on the post of Principal. In purported compliance to the said order, the Director of Education has passed the order impugned dated 09.12.2024 posting the respondent no. 5 as Principal of the institution. The petitioner is the officiating principal of the institution in question i.e the respondent no. 6 & 7, having been appointed as a Officiating Principal upon the resignation of the regular principal whose resignation had been accepted on 26.01.2024 and he had been relieved on 31.01.2024. The petitioner was appointed as an Officiating Principal on 31.01.2024 vide order 31.01.2024, a copy of which is annexure 9 to the writ petition (page 76 of the petition). Upon filing of the instant writ petition, Sri Vivek Shukla, learned Additional Chief Standing counsel has raised the ground of locus of the petitioner to challenge the orders impugned by contending that as a regularly selected person who has been selected in accordance with the Uttar Pradesh Higher Education Services Commission Act, 1980 (hereinafter referred to as "Act, 1980") is being sought to be posted as a regular Principal i.e the respondent no. 5 consequently, the petitioner being only an officiating principal, would have no locus to challenge the said order. In this regard, reliance has been placed on the Full Bench judgment of this Court in the case of Jai Prakash Narayan Singh Vs. State of U.P and Ors- 2014 (8) ADJ 617, Umrao Singh Vs. District Inspector of Schools and Ors- 2002 (5) AWC 4199 All & Smt. Sudha Rani Upadhyay Vs. State of U.P and Ors- 2013 SCC OnLine All 3903. On the other hand, learned counsel for the petitioner with regard to he having locus to challenge the orders impugned has placed reliance on the judgment of the Apex Court in the case of Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and Ors- 1998 (3) SCC 45 and Division Bench judgment of this Court in the case of Bhramchari Shambhu Nath Vs. State of U.P and Ors-2016 (11) ADJ 513. Incidentally, the Apex Court in the case of Kamlesh Kumar Sharma (supra) has clearly gone into the question of locus of an Officiating Principal to challenge the order and has held that an Officiating Principal would have locus to challenge the order of posting of a regular principal in certain eventualities. Likewise, the Division Bench of this Court in the case of Bhramchari Shambhu Nath (supra) has also considered the question of locus and has held that a Officiating Principal would have the locus to challenge the order of posting of a regular Principal where such posting has not been made in accordance with law. Elaborating the same, learned counsel for the petitioner states that the respondent no. 5 had been selected by the Commission in the list dated 05.10.2021 in which his name finds placed at Serial No. 236. Initially the respondent no. 5 had been placed on 22.10.2021 with the Gayatri Vidyapeeth PG College, Reseia, Bahraich on order of Director of Higher Education, a copy of which is annexure 15 to the writ petition but the respondent no. 5 chose not to join in the said institution. Subsequent thereto, the Director of Education vide letter dated 17.08.2023, a copy of which is annexure 16 to the writ petition has clearly indicated that once the respondent no. 5 i.e Dr. Ashok Kumar Dubey had been allotted an institution in which he failed to join consequently, there is no occasion for a fresh order of joining to be issued for respondent no.5. Learned counsel for the petitioner contends that thereafter the State Government stepped in and initially passed an order dated 12.01.2024, a copy of which is annexure 17 to the writ petition for posting the respondent no. 5 to Shri Bappa Narayan Vocational College, Lucknow against the vacant post of Principal but the Committee of Management did not permit the respondent no. 5 to join on the said post. Subsequently, another order dated 04.03.2024, a copy of which is annexure 19 to the writ petition was passed by the State Goverment directing the Director of Higher Education to take appropriate action for the purpose of joining of the respondent no. 5. In the meanwhile, one Dr. Sanjay Mishra who was working as Officiating Principal in the Shri Bappa Narayan Vocational College, Lucknow raised challenge to the posting of respondent no. 5 by filing Writ-A No. 2923 of 2024 (supra) wherein initially this Court passed an order of status quo vide order dated 31.05.2024 (page 124 of the writ petition). Thereafter, after going into the question of locus of an Officiating Principal to file the writ petition, this Court overruled the preliminary objection vide order dated 22.07.2024, a copy of which is annexure 24 to the writ petition. Subsequent thereto, the respondent no. 5 filed an affidavit in the said petition categorically stating that he was no longer interested in being placed as Principal of the college concerned and had submitted that his right of placement/adjustment in any other college be kept reserved. On the basis of the said affidavit, the writ petition was allowed quashing the order by which the respondent no. 5 had been placed and posted in the institution in question and giving liberty to the respondents to adjust/place the respondent no. 5 in any other institution in accordance with law. In pursuance thereof, the order impugned dated 05.12.2024, a copy of which is annexure 1 to the writ petition has been passed by the State Government for posting the respondent no. 5 in the DAV PG College, Lucknow and based on the said order, the competent authority i.e the director of Education has passed the order impugned dated 09.12.2024 for posting the respondent no. 5 in the institution in question on the post of Principal which is being held by the petitioner on an officiating basis. The question which arises is the locus of the State Government to have passed any order more particularly the order impugned dated 05.12.2024 for posting the respondent no. 5 in the institution in question more particularly when prima facie the State Government has no role keeping in view the provisions of the Act, 1980 and the fact that the Director of Education vide letter dated 17.08.2023 had categorically indicated that once the respondent no. 5 had failed to join in the institution to which he had been placed initially i.e at Bahraich consequently, there cannot be any occasion for the respondent no. 5 to be allotted any college or for a fresh order of joining. It could be understood that the Director of Education could have issued an order on his own accord by indicating the provisions under which the order was being issued subsequent to the order dated 17.08.2023 but once the order impugned dated 09.12.2024 is being issued, though by the competent authority, yet at the dictates of the State Government, which prima facie would have no role in the matter keeping in view the provisions of the Act, 1980 as such, it would be deemed that the competent authority has failed to exercise the jurisdiction, if any, that may be vested with him of passing of an order without prejudice to the order dated 17.08.2023 which had been passed by him earlier and consequently, the principle of law as laid down by the Apex Court in the case of Anirudhsinhji Karansinhji Jadeja and Another v/s State of Gujarat-1995 (5) SCC 302 would be attracted whereby vitiating the orders impugned. On the other hand, Sri Vivek Shukla, learned Additional Chief Standing counsel on the basis of oral instructions states that the State Government has passed the order impugned dated 05.12.2024 considering the liberty that has been granted by this Court vide order dated 03.09.2024 in the case of Dr. Sanjay Mishra (supra). The aforesaid argument is found to be prima facie fallacious considering that this Court vide order dated 03.09.2024 had granted liberty to the respondents to adjust/place the respondent no. 5 in any other institution in accordance with law and learned Additional Chief Standing counsel on the basis of instructions has miserably failed to indicate as to how the State Government has got the power "in accordance with law" to have enabled it to pass the order impugned dated 05.12.2024 more particularly when the Act, 1980 prima facie does not vest with the power with the State Government to pass any order with regard to the placement of the selected candidate. Considering the aforesaid, prima facie the Court finds that the petitioner has locus to file the instant writ petition and hence the preliminary objections are rejected at this stage. Keeping in view the aforesaid discussion, a prima facie case for interference is made out. As such, until further orders of this Court, the operation of the impugned orders dated 05.12.2024 & 09.12.2024, copies of which are annexures 1 & 2 to the writ petition shall remain stayed. Learned Additional Chief Standing counsel prays for and is granted four weeks time to file a counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List thereafter. Order Date :- 7.1.2025 Pachhere/-