High Court
Case Details
Neutral Citation No. - 2023:AHC:151436 Court No. - 35 Case :- WRIT - A No. - 11476 of 2023 Petitioner :- Madanesh Mani Tripathi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bhagwan Dutt Pandey Counsel for Respondent :- C.S.C.,Shilpa Singh Sikarwar Hon'ble Vikas Budhwar,J.
Legal Reasoning
On the oral request of Sri Bhagwan Dutt Pandey, learned counsel for the writ petitioner Joint Director of Education Secondary VIIth Region Gorakhpur, District Gorakhpur as respondent no.5 is permitted to be impleaded during the course of the day. Heard Sri Bhagwan Dutt Pandey, learned counsel for the petitioner, Sri Shailendra Singh learned Standing Counsel, who appears for Respondents 1, 2 and 5 and Sri Neeraj Pandey, (AOR No. A/N-0185/2012 holding brief of Ms. Shilpa Singh Sikarwar, learned counsel for the respondent no.4. Sri Bhagwan Dutt Pandey, learned counsel for the petitioner, Sri Shailendra Singh learned Standing Counsel, who appears for Respondents 1, 2 and 5 and Sri Neeraj Pandey, (AOR No. A/N- 0185/2012 holding brief of Ms. Shilpa Singh Sikarwar, learned counsel for the respondent no.4 had made a statement at bar that the writ petition be decided on the basis of the pleadings set forth in the writ petition as they do not propose to file any further response. In view of the order, which is being proposed to be passed today, notices are not being issued to the third respondent.
Decision
The case of the writ petitioner is that there is a society by the name and the style of the Heera Triloki Shanti Sanskrit Uchchatar Madhyamik Vidyalaya, Purandarpur, Soharwaliya Kala, Maharajganj, under Society Registration Act, 1860. In para 5 it has been stated that Society in question has established the third respondent institution which has been accorded permanent recognition on 13.2.1992 by the Sanskrit Secondary Education Board and it is recognized upto Purva Madhyama and imparting education to the children upto class-10. In para 6 further averment has been made that the said institution is in grant-in-aid since 11.8.2015 and it is getting salary from the state exchequer under the Payment of Salaries Act, 1971 and the same is governed under the Provisions of the Uttar Pradesh Board of Secondary Sanskrit Education (Appointment & Conditions of Service of Heads of Institution, Teachers and Other Employees of Institution) Rules, 2009. It is the case of the writ petitioner that he was appointed as an Assistant Teacher in the institution in question on 29.7.2006. As per the writ petitioner vide order dated 21.5.2016 the grant-in-aid was extended to one working Head Master and three teachers in the institution. It is further the case of the writ petitioner that on 31.3.2023 a substantive vacancies stood arisen on account of superannuation of Sri Chandrika Mani Tripathi and thus proposal was being made for recommending the name of the senior most teacher for the officiating as Head Master. On 31.3.2023 as per the writ petitioner the third respondent corresponded with the second respondent District Inspector of Schools, Maharajganj to attest the signature of the petitioner as Officiating Principal/Head Master however the fourth respondent is stated to have made a complaint before the third respondent claiming to be the senior to the writ petitioner to which explanation was also sought and in the same was submitted. However, by virtue of the order dated 21.6.2023 the second respondent proceeded to attest the signature of the writ petitioner while turning down the objections of the fourth respondent on the pretext that the fourth respondent could not establish his seniority over the above writ petitioner. According to the writ petitioner the fourth respondent thereafter preferred the recall application before the second respondent who thereafter proceeded to pass an order dated 3.7.2023, while issuing direction for attestation of signatures of the respondent no.4. Challenging the order dated 3.7.2023 of the second respondent the writ petitioner has filed the present writ petition. Learned counsel for the writ petitioner submits that the order of second respondent dated 3.7.2023 is patently illegal as the same in violation of principles of nature justice as the second respondent does not possess any power to entertain an application and was set aside an order passed earlier which amounts to review which is not permissible. He further submits that the writ petitioner is senior thus the order needs to be set aside. Sri Neeraj Pandey, (AOR No. A/N-0185/2012 holding brief of Ms. Shilpa Singh Sikarwar, learned counsel for the respondent no.4 on the other hand submits that under the Uttar Pradesh Board of Secondary Sanskrit Education (Appointment & Conditions of Service of Heads of Institution, Teachers and Other Employees of Institution) Rules, 2009, the authority is the fifth respondent and not the second respondent. According to him since both the orders are without jurisdiction thus these orders be set aside and the matter be remitted to the fifth respondent to decide the matter afresh. Learned Standing Counsel after going though the provisions contained under Rule 2 and 3 of the 2009 Rules submits that it is the fifth respondent who is empowered to decide the matter and according to him both the orders cannot be sustained in the eyes of law. Learned counsel for the writ petitioner in his usual fairness has accepted the fact that the order in question as per the relevant statute would have been passed by the fifth respondent. Counsel for the rival parties have thus accepted the fact that the order dated 21.6.2023 and the order dated 3.7.2023 passed by the second respondent are without jurisdiction and the matter needs to be determined at the first instance of the fifth respondent. Sri Neeraj Pandey submits that a date be fixed before the fifth respondent and on that date the contention of the writ petitioner third and fourth respondent be considered in true perspective after examining the records and thereafter order be passed. Since both the orders dated 21.6.2023 and 3.7.2023 are without jurisdiction which has been accepted by the counsel for the parties, thus in the facts and circumstances of the case, the writ petition is being decided on the following manner:- (a) the Joint Director of Education Secondary VIIth Region Gorakhpur, District Gorakhpur, the fifth respondent shall decide the claim of the writ petitioner and the fourth respondent while apprising them about the fixation of the date and the time so as to enable them to appear before it; (b) on 7th August 2023 the writ petitioner, the third respondent and the fourth respondent shall appear before on that date, the parties shall exchange their submissions which would be in writing and the documents; (c) thereafter 11th August 2023 shall be the date fixed on which the original record shall be produced by the second respondent and the third respondent; (d) hearing be done on 11.8.2023; (e) order be passed not later than 18th August, 2023; (f) the orders dated 21.6.2023 as well as 3.7.2023 passed by the second respondent shall not be given effect to and would be subject to the fresh orders passed by the fifth respondent. (g) as the jointly agreed by the learned counsel for the parties before this court the arrangement with regard to Officiating Principal which is continuing till date shall continue till the passing of the fresh order by the fifth respondent; Since the counsel for the petitioner and the fourth respondent are already present and the educational authorities are represented through the Standing Counsel, thus they shall communicate the order in question to their clients. Needless to point out that the writ petition has been decided with the consent of the parties and on the ground of jurisdiction thus it may not be construed to an expression that this Court has gone into the merits of the case. With the aforesaid observation, the writ petition is disposed off. Order Date :- 28.7.2023 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad