# Dr. Birendra Singh v. Director of Education, Higher and others

- **Citation:** (2005) 1 ILRA 98
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-26
- **Case number:** Civil Misc. Writ Petition No. 45215 of 2004
- **Bench:** Yatindra Singh, V.S. Bajpai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-birendra-singh-v-director-of-education-higher-and-others-40456
- **Pages:** 6

## Headnote

Sri U.N. Sharma
Sri Rohit Pandey
Sri N.L. Tripathi
Sri D.N. Tripathi
Ms. Sunita Agrawal
Sri O.N. Tripathi
S.C.

Deen
Dayal
Upadhyaya
Gorakhpur
University
Statutes-Statute
13.20Whether
Senior
most
teacher
in
officiated degree College is entitled to
continue as officiating principal under all
circumstances or can he be relieved of
charge on ground that an enquiry
contemplated against him regarding his
conduct
as
officiating
principalImpugned order voided, however, held,
senior most teacher cannot be deprived
of officiating principal merely on protect
of an enquiry-Committee of Management
has
stated
that
enqury
would
be
completed in 3 months-Hence direction
issued to complete enquiry within 3
months and decision may be taken in
accordance with finding-In case enquiry
is not completed within 3 months,
petitioner would be given back charge of
officiating
principal-However,
inquiry
may still continue.

Held: Para 14 & 15

We have not voided the impugned order
however the senior most teacher can not
be
deprived
of
officiating
principal
merely on the pretext of an inquiry. The
committee
of
management
has
mentioned that the inquiry would be
completed in three months. In view of
this, we dispose of the petition with
direction that the inquiry be completed
in three months and a decision may be
taken in accordance with the finding. In
case the inquiry is not completed in
three months then the petitioner would
be
given
back
the
charge
of
the
officiating principal however, the inquiry
in that event may still continue.

Our conclusions are as follows:
a)
For the first three months, there is
discretion
with
the
committee
of
management to appoint any teacher as
the officiating principal but after three
months there is no discretion: the senior
most teacher has to be appointed as the
officiating principal.
b)
There is nothing in the Statute
13.20 that mandates that even if an
inquiry is initiated against the officiating
principal, then he has to be continued as
such an officiating principal may be
relieved during inquiry if his continuance
is not in the interest of the institution.
c)
Opportunity of hearing is necessary
only in the case of removal and not in
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1All] Dr. Birendra Singh V. Director of Education, Higher and others
99
the case where the officiating principal is
relieved during pendency of an inquiry.
d)
The inquiry is being conducted
against the petitioner for his conduct as
the officiating principal and not on his
conduct
as
a
teacher.
In
these
circumstances,
the
action
of
the
management to relieve the petitioner
from the post of the officiating principal
rather than to suspend him can not be
faulted.
e)
The senior most teacher can not be
deprived of acting as the officiating
principal merely on the pretext of an
inquiry.

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
98
letter dated 26.8.2002 (Anenxure 8 to the
writ petition) are quashed. Before parting,
I feel called to observe that the Bank
authorities will assess the income taking
into consideration the observations made
by this Court in the body of this Judgment
and would pass appropriate speaking
orders on objective consideration for
compassionate
appointment
of
the
petitioner after taking into reckoning the
liabilities of the family also within one
month from the date of receipt of a
certified copy of this judgment.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.112004

BEFORE
THE HON'BLE YATINDRA SINGH, J.
THE HON'BLE V.S. BAJPAI, J.

Civil Misc. Writ Petition No. 45215 of 2004

Dr. Birendra Singh

...Petitioner
Versus
Director of Education, Higher and others

 ...Respondents

Counsel for the Petitioner:
Sri P.S. Baghel

Counsel for the Respondents:
Sri U.N. Sharma
Sri Rohit Pandey
Sri N.L. Tripathi
Sri D.N. Tripathi
Ms. Sunita Agrawal
Sri O.N. Tripathi
S.C.

Deen
Dayal
Upadhyaya
Gorakhpur
University
Statutes-Statute
13.20Whether
Senior
most
teacher
in
officiated degree College is entitled to
continue as officiating principal under all
circumstances or can he be relieved of
charge on ground that an enquiry
contemplated against him regarding his
conduct
as
officiating
principalImpugned order voided, however, held,
senior most teacher cannot be deprived
of officiating principal merely on protect
of an enquiry-Committee of Management
has
stated
that
enqury
would
be
completed in 3 months-Hence direction
issued to complete enquiry within 3
months and decision may be taken in
accordance with finding-In case enquiry
is not completed within 3 months,
petitioner would be given back charge of
officiating
principal-However,
inquiry
may still continue.

Held: Para 14 & 15

We have not voided the impugned order
however the senior most teacher can not
be
deprived
of
officiating
principal
merely on the pretext of an inquiry. The
committee
of
management
has
mentioned that the inquiry would be
completed in three months. In view of
this, we dispose of the petition with
direction that the inquiry be completed
in three months and a decision may be
taken in accordance with the finding. In
case the inquiry is not completed in
three months then the petitioner would
be
given
back
the
charge
of
the
officiating principal however, the inquiry
in that event may still continue.

Our conclusions are as follows:
a)
For the first three months, there is
discretion
with
the
committee
of
management to appoint any teacher as
the officiating principal but after three
months there is no discretion: the senior
most teacher has to be appointed as the
officiating principal.
b)
There is nothing in the Statute
13.20 that mandates that even if an
inquiry is initiated against the officiating
principal, then he has to be continued as
such an officiating principal may be
relieved during inquiry if his continuance
is not in the interest of the institution.
c)
Opportunity of hearing is necessary
only in the case of removal and not in
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1All] Dr. Birendra Singh V. Director of Education, Higher and others
99
the case where the officiating principal is
relieved during pendency of an inquiry.
d)
The inquiry is being conducted
against the petitioner for his conduct as
the officiating principal and not on his
conduct
as
a
teacher.
In
these
circumstances,
the
action
of
the
management to relieve the petitioner
from the post of the officiating principal
rather than to suspend him can not be
faulted.
e)
The senior most teacher can not be
deprived of acting as the officiating
principal merely on the pretext of an
inquiry.

(Delivered by Hon'ble Yatindra Singh, J.)

1. This writ petition deals with the
interpretation of statute 13.20 of Deen
Dayal Upadhyaya University, Gorakhpur
(the University). The question is whether
the senior most teacher in an affiliated
degree college is entitled to continue as
officiating
principal
under
all
circumstances or can he be relieved of the
charge on the ground that an inquiry is
contemplated against him regarding his
conduct as the officiating principal.

The Facts

2. The permanent Principal of Hira
Lal Ram Niwas Post Graduate College,
Khalilabad district Sant Kabir Nagar (the
College) retired and a vacancy arose on
30.6.2003. This College is affiliated to the
University. Sri TN Upadhya is the senior
most teacher in the College. Sri Upadhya
did not accept the post of officiating
principal of the College. The petitioner is
the second senior most in the College and
he was appointed as officiating principal
on 1.7.2003. He is working since then.
 There are some complaints against the
petitioner regarding his working as the
officiating principal. In this regard an
inquiry committee was constituted on
14.10.2004
by
the
Committee
of
management to give its report within three
months. In view of the inquiry, the
petitioner was relieved as officiating
principal and in his place Dr. Arjun Ram
Tripathi was appointed as the officiating
principal. Hence the present writ petition.

Submissions of the Petitioner

3. We have heard counsel for the
parties. Counter and rejoinder affidavits
have been exchanged and with the
consent of the parties, the writ petition is
being finally decided at this stage. The
counsel for the petitioner has raised
following submissions before us:
I. The use of the word 'shall' in the
Statute 13.20 shows that it is
mandatory and the petitioner is
entitled to continue even if any
inquiry is initiated against him.
II. The petitioner has filed the writ
petition no. 26937 of 2004 claiming
salary of the principal. The committee
of management has filed a counter
affidavit in this writ petition. There is
neither
any
allegation
of
mismanagement
in
the
counter
affidavit in WP 26937 of 2004 nor in
the certificate dated 14.1.2004 given
by the committee of management.
The
inquiry
is
malafide
and
purposive.
III. The petitioner may be suspended but
cannot be relieved as the officiating
Principal.
IV. The impugned order is null and void
as no opportunity has been afforded
to the petitioner.

1st Submission: Shall Mandatory - but
the Officiating Principal can be
relieved
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
100
4. Statute 13.20 of the University is
as follows:
'When the office of the Principal of
an affiliated college falls vacant, the
management may appoint any teacher to
officiate as Principal for a period of three
months or until the appointment of a
regular principal, whichever is earlier. If
on or before the expiry of the period of
three months any regular principal is not
appointed, or such a principal does not
assume office, the senior most teacher in
the college shall officiate as principal of
such college until a regular principal is
appointed.'

5. The aforesaid Statute governs
appointment of the officiating principal in
absence of appointment of the permanent
principal. It contemplates two different
periods: the appointment for the first three
months and the period thereafter. It gives
discretion
to
the
committee
of
management to appoint any teacher to
officiate as the principal for the period of
three months. In case the vacancy
continues after that period, then the senior
most teacher is to officiate as principal of
the College. The Statute uses 'may' for
appointment for the first three months and
'shall' for subsequent appointment. The
use of two different words explains the
intention. For the first three months, there
is discretion with the committee of
management but after three months there
is no discretion: the senior most teacher
has to be appointed. This was also so held
in a division bench decision of our court
reported in AP Singh vs. State of U.P. &
others 2001(1) UPLBEC 638. But, is the
person officiating a post, entitled to
officiate in any circumstance? Even a
permanent principal can be suspended.
Does the officiating principal become
more permanent than the permanent
appointment?

6. There are complaints against the
petitioner. They are indicated in subparagraphs of paragraph 10 of the counter
affidavit. They are indicated in Endnote2. These sub-paragraphs are denied in the
rejoinder affidavit. But the correctness of
these complaints is not to be judged in
this writ petition but is to be seen first by
the inquiry committee. The Committee of
Management has submitted that no
inquiry can be conducted against the
petitioner if he continues as the principal
of the College. It is in view of this that
they have relieved the petitioner from
charge
of
officiating
principal
till
completion of the inquiry. Considering
the complaints against the petitioner, it
can not be said that this submission is
unfounded. The petitioner has been
relieved till pendency of the inquiry; this
does not mean that the petitioner has been
removed as the principal. This order is
akin to suspension and not to removal.
There is nothing in the Statute 13.20 that
mandates that even if an inquiry is
initiated against the officiating principal,
then he has to be continued.

7. The counsel for the petitioner
cited Dr. Vijay Laxmi Agarwal vs. VC
MJP Rohilkhand University and others
(the VijayLaxmi case) and submitted that
the impugned order is illegal as no
opportunity was afforded. However this
case partly supports the respondents and
is distinguishable on facts.

8. Our court in the VijayLaxmi case
after considering the other decisions held,

'While ordinarily the senior most
teacher should be appointed Principal of a
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1All] Dr. Birendra Singh V. Director of Education, Higher and others
101
Degree College, till regular selection, in
exceptional circumstances where it would
not be in the interest of the institution to
appoint the senior -most teacher, he can
be superseded and the next after him in
seniority can be appointed.'

9. The aforesaid enunciation of law
shows that even senior most teacher may
be ignored in case it is in the interest of
the College. Here, an inquiry has been
initiated against the petitioner; it is not in
the interest of the institution to continue
the petitioner as officiating principal
during pendency of these proceedings.

2nd Submission: Inquiry - Not
Malafide

10. The writ petition no. 26937 of
2004 is for a direction to the State
Government to give salary of principal to
the petitioner. It does not relate to the
work and conduct of the petitioner. In
case nothing is mentioned regarding any
complaint against the petitioner in the
counter affidavit filed by the committee of
management then no adverse inference
can be drawn. So far as the certificate
dated 14.1.2004 is concerned suffice to
say it was given nine months ago. This
does not mean that even today there is no
complaint against the petitioner.

11. In the present case the
committee of management has appointed
the petitioner for the first three months
where there was discretion to appoint any
one as an officiating principal. They have
continued with him for more than a year.
There is nothing on the record to suggest
that action is malafide. The order can not
be faulted on the ground of malafides.

3rd Submission: Opportunity before
Relieving during Inquiry - Not
Necessary

12. It is correct that in the
VijayLaxmi case our court further held
that opportunity is necessary and in this
case no opportunity was given to the
petitioner before the impugned order was
passed.
However
the
facts
of
the
VijayLaxmi case are different; it was the
case of removal. This is not a case of
removal. It merely takes the charge of
officiating principal from the petitioner
during the pendency of the inquiry against
the petitioner. It is temporary; during the
inquiry proceeding; and is akin to
suspension. In case the petitioner is
discharged in the inquiry then he has to be
continued as officiating principal again.

4th Submission: Suspension - Not
Necessary

13. The counsel for the petitioner
submitted that in case there is any inquiry
against the petitioner then he can be
suspended, but he can not be asked to
handover the charge. The petitioner is not
holding any substantive post. He was
merely officiating as principal. The
inquiry is being conducted for his conduct
as the officiating principal and not on his
conduct
as
a
teacher.
In
these
circumstances,
the
action
of
the
management to relieve the petitioner from
the post of officiating principal rather than
to suspend him can not be faulted.

14. We have not voided the
impugned order however the senior most
teacher can not be deprived of officiating
principal merely on the pretext of an
inquiry. The committee of management
has mentioned that the inquiry would be
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
102
completed in three months. In view of
this, we dispose of the petition with
direction that the inquiry be completed in
three months and a decision may be taken
in accordance with the finding. In case the
inquiry is not completed in three months
then the petitioner would be given back
the charge of the officiating principal
however, the inquiry in that event may
still continue.

CONCLUSIONS

15. Our conclusions are as follows:
a) For the first three months, there is
discretion with the committee of
management to appoint any teacher as
the officiating principal but after three
months there is no discretion: the
senior most teacher has to be
appointed as the officiating principal.
b) There is nothing in the Statute 13.20
that mandates that even if an inquiry
is initiated against the officiating
principal, then he has to be continued
as such an officiating principal may
be relieved during inquiry if his
continuance is not in the interest of
the institution.
c) Opportunity of hearing is necessary
only in the case of removal and not in
the
case
where
the
officiating
principal is relieved during pendency
of an inquiry.
d) The inquiry is being conducted
against the petitioner for his conduct
as the officiating principal and not on
his conduct as a teacher. In these
circumstances, the action of the
management to relieve the petitioner
from the post of the officiating
principal rather than to suspend him
can not be faulted.
e) The senior most teacher can not be
deprived of acting as the officiating
principal merely on the pretext of an
inquiry.

16. In view of our conclusions, we
dispose off the writ petition with
observations and directions mentioned in
paragraph 14 of this judgement.

Endnote 1: Sri PS Babhel appeared for
the petitioner. Sri UN Sharma, Sr.
Advocate, Sri Rohit Pandey, Ms. Sunita
Agrawal, Sri NL Tripathi, Sri DN Tripahti
and the standing counsel appeared for the
respondents.

Endnote 2: The complaints against the
petitioner as indicated in paragraph 10 of
the counter affidavit are as follows:
i.
The petitioner is guilty of committing
financial irregularity by paying salary
of Dr. Vinod Kumar Singh, lecturer
(His Son) and Dr. Shivendra Bahadur
Singh, lecturer from the account of
Self Finance Salary Fund while they
are appointed under the Additional
Teaching Arrangement (ATT), which
is a government aided scheme, to
make their services permanent on the
self finance scheme.

ii. A letter dated 4.10.2004 was given to
the petitioner by the Secretary,
Committee of Management asking the
petitioner that some of the papers
were bearing the seal of principal and
some were bearing the seal of the
officiating principal and it was
directed that office should ensure that
all the papers must bear the seal of
officiating principal and not of the
principal.

iii. Inspite of the clear direction of the
committee
of
management
the
petitioner kept on issuing the cheques
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1All] Dr. Birendra Singh V. Director of Education, Higher and others
103
under the seal of principal and
thereby committed disobedience of
the orders. A letter dated 9.10.2004
was given by the accountant of the
college to the Secretary, Committee
of Management informing that the
officiating principal has passed an
order that all the bills-voucher and the
cheque book would be sealed in the
name of principal from today.

iv. A reply was called from the petitioner
by the committee of management by
its letter dated 11.10.2004 that, being
an officiating principal, why he has
issued the cheques under the seal of
principal of the College.

v. The petitioner was also found guilty
of
misconduct
of
direct
correspondence with the Director
Higher Education, University and
State Government without informing
the committee of management and the
records of the correspondence was
called
by
the
committee
of
management, but same was not made
available by the petitioner.

vi. The petitioner has also not followed
the order dated 1.10.2004 of the
committee
of
management
of
removing the two security guards
namely Sri Badri Nath Tiwari and Sri
Rajendra Singh from the security
arrangement and allowed them to
continue in service which is clearly
evident from the attendance register
of the College.

vii. That
in
order
to
cover
his
irregularities and misconducts the
petitioner is not making available to
the management all the relevant
papers and audit reports of the
college. A letter dated 30.9.2004 was
given to the petitioner to this effect by
the committee of management.

viii. On 11.10.2004 a surprise inspection
was
made
by
the
Secretary,
Committee of Management and it was
found that a number of irregularities
being conducted in the college which
is clear evidence of disregard of the
utmost object and purpose of the
College.

ix. There
are
several
incidents
of
disobedience of the orders and of
misconduct of the petitioner as
officiating principal and on calling for
the explanation, he abstained from his
accountability.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2004

BEFORE
THE HON'BLE S.K. SINGH, J.

Civil Misc. Writ Petition No. 2299 of 2002

Nathunee and others
 ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Ghazipur and another
 ...Respondents

Counsel for the Petitioners:
Sri P.N. Kushwaha
Sri Triveni Shanker

Counsel for the Respondents:
Sri H.L. Pandey
Sri Awadhesh Narain Srivastava
S.C.

U.P. Consolidation of Holdings Act-Ss. 19
and 20-Allotment of chaks-Consolidation
of
Officer
made
adjustments
after
making spot inspection-Confirmation of