# Dhanesh Kumar Sharma v. State of U.P. and others

- **Citation:** (2004) 2 ILRA 532
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-06
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhanesh-kumar-sharma-v-state-of-u-p-and-others-40414
- **Pages:** 4

## Headnote

U.P. Intermediate Education Act, 1921Regulation
2
of
Chapter
II-
U.P.
Secondary Education Services Selection
Board
Act,
1982
(As
amended
by
Amendment Act, 2001)-Ss. 16 and 18Senior most teacher allowed to work as
officiating principal- His right cannot be
defeated on ground that he was unable
to carry on functions for some period on
account of illness- Second Senior most
teacher took over charge but resigned on
g round of domestic circumstances-Third
Senior most teacher declined to accept
office as he was going to retire shortlyBy this time the senior most teacher
recovered from illness and requested to
be appointed as officiating principal-his
right, held, cannot be defeated only on
ground that in past, expressed his
inability-Neither any agreement in writ
petition- nor any material on record to
show unsuitability or disqualification for
any act of misconduct- Held, can not be
denied
from
working
as
officiating
Principal.

Where a senior most teacher was found
suitable and was allowed to work as
officiating principal, his right cannot be
defeated on the ground that he was
allowed and was unable to carry on
functions as officiating principal for
some period of time. In the present case,
respondent no. 5 gave in writing that he
is unable to officiate as principal on
account of illness. The second senior
most teacher took over the charge but
resigned on the ground of domestic
circumstances and third senior most
teacher declined to accept the office as
he was going to shortly retire. By this
time respondent no. 5 recovered from
illness and requested to be appointed as
officiating principal. His right cannot be
defeated only on the ground that he was
ill at the time when he expressed his
inability to continue on account of ill
health. Once he has recovered and has
requested to accept the responsibility,
his right cannot be defeated on the
ground
that
he
had
in
the
past,
expressed his inability to continue on the
ground of illness. There is no averment
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2 All] Dhanesh Kumar Sharma V. State of U.P. and others
533
in the writ petition and any material on
record to show that he was unsuitable or
was
disqualified
for
any
act
of
misconduct
or
otherwise,
after
he
declined to continue on the ground of
illness. The petitioner has not pressed
any principle of law which may disqualify
respondent no. 5 to assume charge as
officiating principal.

 Para 7
Case law discussed:
1995AWC 122
1990(1) UPLBEC 116
W.P.No. 169 of 1987 decided on 7.12.1987
1986 Educational cases 44
1992 (i) UPLBEC

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
532
the business in the capacity of a
proprietor. It has also come on record that
the petitioner no.1 was not residing in the
premises in dispute and was working in
Jhansi. Thus it is a clear case that the
petitioner No.1 has sublet the premises to
petitioner no.2 in violation of the
provision of Section 25 of the Act and
was therefore the petitioners were liable
for eviction under Section 20(e) of the
Act.

15. Both the courts below have held
that the construction of a kiosk in front of
the building has caused material alteration
and has diminished its value and has also
disfigured it. The finding of the material
alteration given by the courts below are
findings of fact, which cannot be
interfered in the writ petition. Therefore,
the petitioners are also liable to be evicted
from the premises in question.

16. In view of the aforesaid, there is
no merit in the writ petition and is
dismissed with cost. Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 6.4.2004

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition 13974/2004

Dhanesh Kumar Sharma
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri P.K. Bhardwaj

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act, 1921Regulation
2
of
Chapter
II-
U.P.
Secondary Education Services Selection
Board
Act,
1982
(As
amended
by
Amendment Act, 2001)-Ss. 16 and 18Senior most teacher allowed to work as
officiating principal- His right cannot be
defeated on ground that he was unable
to carry on functions for some period on
account of illness- Second Senior most
teacher took over charge but resigned on
g round of domestic circumstances-Third
Senior most teacher declined to accept
office as he was going to retire shortlyBy this time the senior most teacher
recovered from illness and requested to
be appointed as officiating principal-his
right, held, cannot be defeated only on
ground that in past, expressed his
inability-Neither any agreement in writ
petition- nor any material on record to
show unsuitability or disqualification for
any act of misconduct- Held, can not be
denied
from
working
as
officiating
Principal.

Where a senior most teacher was found
suitable and was allowed to work as
officiating principal, his right cannot be
defeated on the ground that he was
allowed and was unable to carry on
functions as officiating principal for
some period of time. In the present case,
respondent no. 5 gave in writing that he
is unable to officiate as principal on
account of illness. The second senior
most teacher took over the charge but
resigned on the ground of domestic
circumstances and third senior most
teacher declined to accept the office as
he was going to shortly retire. By this
time respondent no. 5 recovered from
illness and requested to be appointed as
officiating principal. His right cannot be
defeated only on the ground that he was
ill at the time when he expressed his
inability to continue on account of ill
health. Once he has recovered and has
requested to accept the responsibility,
his right cannot be defeated on the
ground
that
he
had
in
the
past,
expressed his inability to continue on the
ground of illness. There is no averment
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2 All] Dhanesh Kumar Sharma V. State of U.P. and others
533
in the writ petition and any material on
record to show that he was unsuitable or
was
disqualified
for
any
act
of
misconduct
or
otherwise,
after
he
declined to continue on the ground of
illness. The petitioner has not pressed
any principle of law which may disqualify
respondent no. 5 to assume charge as
officiating principal.

 Para 7
Case law discussed:
1995AWC 122
1990(1) UPLBEC 116
W.P.No. 169 of 1987 decided on 7.12.1987
1986 Educational cases 44
1992 (i) UPLBEC

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard counsel for petitioner and
learned standing counsel for respondents.

2. The respondent no. 5 is senior
most teacher in lecturer's grade in the
institution.
On
the
retirement
of
permanent principal, he took over charge
as officiating principal in July, 2002. In
April, 2003, he gave in writing that on
account of illness, he shall not be able to
continue as officiating principal and thus
the second senior most person namely Sri
Subhash Chandra Gupta was appointed as
officiating principal. Sri Subhash Chandra
Gupta resigned on 25.11.2003 on the
ground of some domestic circumstances
after which the third senior most person
Sri Adarsh Kumar was offered to officiate
as principal. Sri Adarsh Kumar declined
to accept the office of officiating principal
as he was going to retire on 30.6.2004. In
these
circumstances,
the
authorised
controller handed over charge of the
officiating principal to the 4th senior most
teacher on 25.11.2003. It is at this stage
the respondent no. 5 again appeared
before the District Inspector of Schools
and requested to officiate as principal on
the ground that he has recovered from
illness. By impugned order, the District
Inspector of Schools has disapproved the
proposal of the authorised controller to
allow the petitioner, who is the 4th senior
most teacher to officiate as principal and
has accepted the representation of the
respondent no. 5 to resume charge of
officiating principal.

3. Counsel for petitioner submits
that once the officiating principal has
resigned,
he
cannot
be
thereafter
permitted to assume charge as officiating
principal. The petitioner has relied upon
judgment of this Court in Satya Beer
Singh Vs. District Inspector of Schools,
Buland Shaher reported in 1995 AWC
122. This judgment upheld the contention
that once senior most teacher declines the
offer as officiating principal, she cannot
claim right subsequently to be appointed
as officiating principal in the institution.
This judgment is based upon a decision in
the Special Appeal No. 141/1993 between
Smt.
Sudesh
Kakkar
Vs.
Regional
Inspectress of Girls School, 1st Region,
Meerut and others. I have gone through
the paragraphs no. 11, 12 and 13 of the
judgment. Neither the judgment of special
appeal nor learned single judge has given
any reason to hold that once the senior
most teacher declines to hold or to
continue with the office, she cannot be
subsequently appointed as officiating
principal.

4. The facts and circumstances of
this case are different. The petitioner took
over and was functioned as officiating
principal from July, 2002 to April, 2003
and thereafter expressed his inability to
continue due to illness. After he recovered
from illness and the office again fell
vacant he requested to be appointed as
officiating principal.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
534
5. The letter dated 25.4.2003 sent by
respondent no. 5 was conditional. This
letter cannot be treated to be a resignation,
and inability to function as officiating
principal forever. It was written on the
ground that he was not keeping good
health. The petitioner had given adequate
and bonafide reasons, to decline to
function as officiating principal. Once the
stated
disability
was
removed
he
requested to be considered to officiate as
Principal. The judgment in Satya Veer
Singh's case (supra) does not give any
reason or state any principle of law to
arrive at a conclusion that once senior
most teacher declines, he cannot be
subsequently appointed as officiating
principal.

6. Regulation 2 of Chapter-II of the
Regulations
made
under
the
U.P.
Intermediate Education Act 1921 provides
that the post of head of the institution,
shall except as provided in Sub Clause-2
(where the institution is raised from High
School to Intermediate Colleges) be filled
by direct recruitment after reference to the
Selection Committee constituted under
Sub Section 1 of Section 16-F or as the
case may be under Sub Section 1 of
Section 16-FF. Sub Regulation 3
provides that temporary vacancy on the
post of head of institution for a period not
exceeding 30 days should be filled by the
senior most teacher in the highest grade,
but he shall not be entitled to pay in the
scale higher than the scale of pay in which
he is drawing salary as a teacher. The
U.P.
Secondary
Education
Services
Selection Board Act 1982 provides in
Section 16 that notwithstanding anything
to
the
contrary
contained
in
the
Intermediate Education Act 1921 or the
Regulations made thereunder but subject
to the provisions of 12, 18, 21-B, 21-C,
21-D,
33,
33-A
to
33-F,
every
appointment of a teacher shall on or after
the date of commencement of the U.P.
Secondary Education Services Selection
Board (Amendment) Act 2001 be made
by
the
Management
only
on
the
recommendation of the Board. The
teacher here includes the Principal.
Section 18, however, provides for adhoc
appointment on the post of teachers as
well as Principal or Head Master until a
candidate recommended by the Board
joins on the post. This Court has held in
Kumari
Bandana
Banerjee
Vs.
Administrator, Arya Kanya Pathshala
1990 (1) UP LBEC 116 that the
appointment of a junior teacher as
Principal against a senior teacher is
against the Act under Regulations and that
the
provisions
of
Chapter-II
of
Regulations framed under the U.P.
Intermediate Education Act for promotion
includes the provision for filling of the
post of Head of institution due to
retirement temporary by promoting the
senior most qualified teachers. In Ram
Murti Singh Vs. D.I.O.S. (Writ Petition
No. 169/1987 decided on 7.12.1987) and
Yogendra
Prasad
Chaturvedi
Vs.
Additional
Commissioner
1986
Educational
Cases
44,
as
well
as
Tribhuvan
Misra
Vs.
D.I.O.S.
Azamgarh 1992 (1) UPLBEC 716 it was
held that senior most teacher should not
necessarily
be
appointed
as
adhoc
principal.
Where,
However,
the
Management wishes to supercede the
senior most teacher, he must be given a
show cause notice by the Management
stating the charges against him and the
proposal to supercede him. This, however,
can be done in cases where the senior
most teacher may be involved in the acts
of misconduct drawing and is not
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2 All] Sri R.S. Shukla & others V. Asstt. Collector, Collection, Trade Tax, Sikandrabad
535
otherwise suitable to act as adhoc
principal.

7. Where a senior most teacher was
found suitable and was allowed to work
as officiating principal, his right cannot be
defeated on the ground that he was
allowed and was unable to carry on
functions as officiating principal for some
period of time. In the present case,
respondent no. 5 gave in writing that he is
unable to officiate as principal on account
of illness. The second senior most teacher
took over the charge but resigned on the
ground of domestic circumstances and
third senior most teacher declined to
accept the office as he was going to
shortly retire. By this time respondent no.
5 recovered from illness and requested to
be appointed as officiating principal. His
right cannot be defeated only on the
ground that he was ill at the time when he
expressed his inability to continue on
account of ill health. Once he has
recovered and has requested to accept the
responsibility, his right cannot be defeated
on the ground that he had in the past,
expressed his inability to continue on the
ground of illness. There is no averment in
the writ petition and any material on
record to show that he was unsuitable or
was disqualified for any act of misconduct
or otherwise, after he declined to continue
on the ground of illness. The petitioner
has not pressed any principle of law
which may disqualify respondent no. 5 to
assume charge as officiating principal.

8. For the aforesaid reasons, I do not
find any error in the order of District
Inspector of Schools, Buland Saher. The
writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.5.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition (Tax) No. 648 of 2004

Sri Ram Shyam Shukla and others

...Petitioner
Versus
Assistant Collector, Collection, Trade
Tax, Sikandrabad
...Respondents

Counsel for the Petitioners:
Sri M. Manglik
Sri Santosh Misra

Counsel for the Respondents:
S.C.

U.P.
Tax
Act-Doctrine
of
Separate
Corporate entity-Exceptions-Doctrine of
lifting viel of Corporate personalityApplicability Petitioners claiming to be
directory of Company-Yet no disclosure
about assets of Company against which
impugned recovery can proceed, names
of
other
directions,
shareholders,
Managing Director-Hence presumption
that petitioners have diverted assets of
Company for their own benefit for
evasion of trade tax recovery petitioners
are seeking to use component character
of company for evading Tax-Applying
doctrine of piercing vail of Corporate
personality, held, petitioners are not
entitled to protection of doctrine of
separate entity of Corporation-Directior
held liable to pay tax.

In our opinion, the veil of separate entity
of the company should be lifted in the
present case. The petitioners claims to
be the Directors of the Company but they
have not mentioned in the writ petition
whether there are any assets of the
Company against which the impugned
recovery can proceed. They have also not