# Dr. Dhananjay Singh v. State of U.P. & Ors

- **Citation:** (2024) 1 ILRA 1220
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-24
- **Case number:** Writ-A No. 11493 of 2023
- **Bench:** Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-dhananjay-singh-v-state-of-u-p-ors-50857
- **Pages:** 16

## Headnote

Service Law - Petitioner, appointed as
Lecturer on 19.02.1991, promoted as
Associate
Professor
on
01.01.2006,
became eligible for consideration upon
vacancy of substantive post of Principal on
12.08.2016 - On refusal of seniors, petitioner
appointed Officiating Principal by order dated
12.06.2018 and assumed charge on 14.06.2018
- Complaints by local MLA and College
Accountant led to Commissioner ordering inquiry
against petitioner on 24.09.2020 - Inquiry
committee found
petitioner, as Officiating
Principal,
bypassed
authorized
accountant,
engaged Pvt. persons, issued irregular vouchers,
committed financial irregularities in violation of
Government Orders - Further he was directed to
hand over charge of Officiating Principal to sixth
respondent
owing
to
irregularities
-
By
impugned order, third respondent rejected
petitioner's claim to officiate as Principal - Once
1 All. Dr. Dhananjay Singh Vs. State of U.P. & Ors.
1221
sixth respondent declined
to officiate as
Principal on medical grounds with recital to
resume after recovery, he cannot now claim
officiating against same vacancy - Allegations
forming basis of petitioner's discharge were
identical to those in charge-sheet dated
13.8.2021 - Inquiry Officer submitted report
on 25.9.2021, no material shows that inquiry
was concluded by any final order as per law -
Impugned order, set aside. (Para 5, 6, 7, 8,
11, 16, 39, 46)

Writ petition allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,934 of 52,467. This is a partial read: ask again with offset=39934 for what follows._

1220 INDIAN LAW REPORTS ALLAHABAD SERIES
case and awarding of sentence of rigorous
imprisonment coupled with fine, no other
reason has been assigned for terminating
the services of the petitioner. Thus, in my
view, there is no evaluation or assessment
otherwise qua the conduct of the petitioner
for the purposes of taking a decision to
continue a convicted employee in the
establishment or not. Moral turpitude itself
can be a ground but there has to be
discussion regarding that and finding also
to justify the order terminating the services
of the such convicted person on the ground
of moral turpitude. The order impugned is
absolutely silent on the above count.

26. Now since the petitioner has been
acquitted in the criminal case holding
clearly that charge was not made out and
that
the
finding
of
conviction
was
unsustainable being bad and illegal, I treat
it to be a case of no evidence and not a
matter of benefit of doubt.

27. In the circumstances, therefore,
petitioner,
may
be
not
so
stated
specifically,
but
stood
honourably
acquitted. Once the petitioner has been
acquitted in the criminal case and the only
ground taken in the order impugned
terminating the services is the conviction in
such criminal case, the order impugned is
also not sustainable on merits. The
appellate authority has not discussed
anything except reiterating the view taken
by the disciplinary authority that petitioner
had been convicted in a criminal case so to
hold that there was no merit in the appeal
though the appeal has also been dismissed
on the ground of delay. The order passed
by the appellate authority is also not
sustainable.

28. In view of the above, writ petition
succeeds and is allowed. The order dated
16.12.2019 passed by the disciplinary
authority and 28.03.2022 passed by the
appellate authority are hereby quashed.
Petitioner is directed to be reinstated in
service forthwith with all consequential
benefits.
----------
(2024) 1 ILRA 1220
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2023

BEFORE

THE HON'BLE VIKAS BUDHWAR, J.

Writ-A No. 11493 of 2023

Dr. Dhananjay Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Girdhar Prasad Tripathi, Sri H.N. Singh
(Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Sidharth Khare, Sri Jigar Khare,
Sri Ashok Khare (Sr. Adv.)

Service Law - Petitioner, appointed as
Lecturer on 19.02.1991, promoted as
Associate
Professor
on
01.01.2006,
became eligible for consideration upon
vacancy of substantive post of Principal on
12.08.2016 - On refusal of seniors, petitioner
appointed Officiating Principal by order dated
12.06.2018 and assumed charge on 14.06.2018
- Complaints by local MLA and College
Accountant led to Commissioner ordering inquiry
against petitioner on 24.09.2020 - Inquiry
committee found
petitioner, as Officiating
Principal,
bypassed
authorized
accountant,
engaged Pvt. persons, issued irregular vouchers,
committed financial irregularities in violation of
Government Orders - Further he was directed to
hand over charge of Officiating Principal to sixth
respondent
owing
to
irregularities
-
By
impugned order, third respondent rejected
petitioner's claim to officiate as Principal - Once
1 All. Dr. Dhananjay Singh Vs. State of U.P. & Ors.
1221
sixth respondent declined
to officiate as
Principal on medical grounds with recital to
resume after recovery, he cannot now claim
officiating against same vacancy - Allegations
forming basis of petitioner's discharge were
identical to those in charge-sheet dated
13.8.2021 - Inquiry Officer submitted report
on 25.9.2021, no material shows that inquiry
was concluded by any final order as per law -
Impugned order, set aside. (Para 5, 6, 7, 8,
11, 16, 39, 46)

Writ petition allowed. (E-13)

List of Cases cited:

1. Sundershan Kumar Vs St. of U.P. & ors.,
Special Appeal No.959 of 2006 decided on
15.9.2006 (Relied)

2. Ashok Kumar Jain Vs St. of U.P., 2008 (1)
ADJ 512, (Para 7) (Relied)

3. Smt. Archana Singh Vs St. of U.P. 2009 (6)
ADJ 115, (Para 13) (Relied)

4. Smt. Duleshwari Devi Vs St. of U.P. & ors.
2012 (3) ADJ 742, (Paras 15 to 17) (Relied)

5. Babulal Badriprasad Varma Vs Surat
Municipal Corporation & ors. (2008) 12 SCC
401

6. ARCE Polymers Pvt. Ltd. Vs Alphine
Pharmaceuticals Pvt. Ltd. & ors. (2022) 2 SCC
221

7. U.O.I. & ors. Vs N. Murgu Ganeshan 2022
(2) SCC 25

8. Dhanesh Kumar Sharma Vs St. of U.P. &
ors. (2004) 5 AWC 4099, Special Appeal
No.506 of 2022

9. Vikas Jain Vs St. of U.P. & ors. Special
Appeal No.677 of 2022, decided on 8.7.2022

10. Ashok Kumar Pandey Vs St. of U.P. & ors.
decided on 19.12.2022

11. Dr. Jagathy Raj V.P. Vs Dr. Rajitha Kumar S.
& ors. (2022) 6 SCC 299
12. Yoginath D. Bhagde Vs St. of Mah., 1999 (7)
SCC 739

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Heard Sri H.N. Singh, learned
Senior Counsel assisted by Sri Girdhar
Prasad Tripathi, learned counsel for the
writ
petitioner,
Sri
Saurabh,
learned
Standing
Counsel
who
appears
for
respondents No. 1 to 5 and Sri Ashok
Khare, learned Senior Counsel assisted by
Sri Jigar Khare, learned counsel for the
respondents.

2. Since affidavits have been
exchanged between the parties and they do
not propose to file any further affidavits
thus with their consent the writ petition is
being decided at the fresh stage.

3. The facts of the case as worded in
the writ petition are that there is an
institution by the name of Mathura P.G.
College, Rasra, District Ballia which is
affiliated to Jannayak Chandrashekhar
University, Ballia (In short respondent
University)
and
the
first
statute
of
Mahatama Ganhi Kashi Vidyapeeth (First
amendment) Statue 2011 are applicable.

4. Since the fourth respondent
institution is affiliated to the respondent
University thus the payment of salaries of
the teaching and non teaching staff of the
institution is being made under the
provisions of Section 60B of the U.P. State
Universities Act, 1973.

5. The writ petitioner claims to be
appointed as a Lecturer/Associate Professor
on 19.2.1991 in the subject Geography and
was promoted in the grade of Associate
Professor on 1.1.2006. A substantive post
of Principal fell vacant on 12.8.2016. As
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
per the seniority list one Dr. Smt. Urmila
Singh
was
the
senior
most
Lecturer/Associate Professor followed by
the sixth respondent Dr. Dharmatmanand
Gupta and then the writ petitioner, Dr.
Dhananjay Singh.

6. Since Dr. Smt. Urmila Singh and
sixth
respondent
Dr.
Dharmatmanand
Gupta, Associate Professor (Economics)
refused to officiate as a Principal of the
fourth respondent Institution on 11.6.2018
so the writ petitioner who was next in the
league was allowed to Officiate as a
Principal of the institution in question by
virtue of an order passed by the Authorised
Controller/District Magistrate, Ballia on
12.6.2008 who was manning the institution
in question. The signature of the writ
petitioner as an Officiating Principal was
also attested and he assumed the charge as
an Officiating Principal on 14.6.2018.

7. According to the writ petitioner
complaints were lodged by a Local M.L.A.
and Sri Anil Kumar Singh, Accountant
Mathura, P.G. College Rasra, Ballia
regarding the working of the writ petitioner
as an Officiating Principal institution in
question pursuant whereto an order is
stated
to
have
been
passed
by
Commissioner
Azamgarh
Division,
Azamgarh on 24.9.2020 for holding of
inquiry against the writ petitioner.

8. A Committee is stated to have been
constituted headed by Chief Development
Officer, Ballia along with the Senior
Treasury Officer and District Inspector of
Schools, Ballia, which conducted the
inquiry while submitting the inquiry report
that the works relating to accounts in the
institution in question was not being
conducted properly as despite the fact that
there happened to be an authorised
accountant the writ petitioner in the
capacity of an officiating Principal was
getting the accounts work done through
private persons. Apart from the same the
vouchers were also issued in the name of
employees who were presenting the said
vouchers creating a situation whereby the
regularly
appointed
and
authorised
accountant was being deprived of work and
financial
irregularities
were
being
committed
which
was
against
the
Government Orders.

9. A communication noticing the
aforesaid irregularities was issued under the
signature
of
the
Chief
Development
Officer,
Ballia
to
the
Commissioner
Azamgarh
Division,
Azamgarh
on
13/17.11.2020

10.

After
the
receipt
of
the
communication dated 13/17.11.2020 of the
Chief
Development
Officer,
Ballia
addressed to Commissioner Azamgarh
Division,
Azamgarh
another
communication was issued on 30.7.2021
under the signatures of Joint Director
Higher Education on behalf of the Director
of Higher Education addressed to the
Administrator,
Mathura
P.G.
College,
Rasra, District Ballia wherein it was recited
that inquiry was conducted in the light of
the communication of the Additional Chief
Secretary, U.P. Government vide letter
dated 15.2.2021 and after noticing the said
irregularity so pointed out against the writ
petitioner the matter was referred for taking
follow up action.

11. Consequently, on 6.8.2021
Administrator,
Mathura
P.G.
College,
Rasra, District Ballia fourth respondent
proceeded to issue an office order whereby
owing to the iregularities as referred to
above the writ petitioner was directed to
1 All. Dr. Dhananjay Singh Vs. State of U.P. & Ors.
1223
handover the charge of the Officiating
Principal to the sixth respondent, Dr.
Dharmatmanand Gupta.

12. Challenging the order dated
6.8.2021 passed by the fourth respondent,
Administrator,
Mathura
P.G.
College,
Rasra, District Ballia the writ petitioner
preferred Writ-A No.10764 of 2021, Dr.
Dhananjay Singh vs. State of U.P. which
came to be allowed on 13.9.2021. Order
whereof is being quoted herein under:-

Heard Sri H.N.Singh, learned Senior
Counsel, assisted by Sri Girdhar Prasad
Tripathi, learned counsel for the petitioner
and Sri Ratan Deep Mishra, learned
Standing Counsel for the respondents.

The petitioner, by means of the
present writ petition, has assailed the order
dated 06.08.2021 passed by the respondent
no.6-Administrator, P.G. College Rasra,
District Ballia/ Regional Higher Education
Officer, Varanasi, by which the petitioner
has been removed from the post of
Officiating Principal of the College.

The
Mathura
P.G.
College
(hereinafter referred to as "the College") is
an Educational Institution affiliated with
Jannayak
Chandrashekhar
University,
Ballia (hereinafter referred to as "the
University"). The first statute of Mahatma
Gandhi
Kashi
Vidyapeeth
(First
Amendment) Statute, 2011 is adopted by
the University.

The vacancy of Principal in the
College came in existence in the year 2018.
As the senior most Associate Professor of
the College, namely, Dr. Smt. Urmila
Singh and the second senior most Associate
Professor Dr. Dharmatma Nand refused to
accept the charge of Officiating Principal.
The petitioner being at Sl. No.3 in the
seniority list, was offered the charge of
Officiating Principal. Subsequently, the
petitioner was appointed as Officiating
Principal on 12.06.2018. The signature of
the petitioner has been attested by the
respondent
no.7-Regional
Higher
Education
Officer,
Varanasi
Region,
Varanasi and the petitioner since then has
been continuously working as Officiating
Principal of the College. However, by the
order dated 06.08.2021, the petitioner has
been removed from the Post of Officiating
Principal of the College on several charges.

Challenging
the
said
order,
learned counsel for the petitioner has
contended that the order being punitive and
stigmatic
in
nature,
therefore,
an
opportunity of hearing ought to have been
afforded to the petitioner before passing the
impugned order. He further submits that
neither any notice or opportunity of hearing
was afforded to the petitioner by the
respondents, hence, the order impugned
cannot sustain. In this respect, necessary
averments has been made in paragraph
no.21 of the writ petition.

This Court on earlier occasion,
i.e., on 27.08.2021 has passed the following
order:-

"Orders of Director of Education
as also the Administrator is assailed
primarily on the ground that though
petitioner is continuing as Officiating
Principal for the last three years but without
putting him to any notice the order has
been passed for dislodging him from the
office of Officiating Principal. It is stated
that Accountant, who has since retired, has
otherwise been found guilty of various
irregularities by the Joint Director vide
order dated 6.8.2021, and therefore the
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
charge that work was not taken from him is
otherwise not sustainable.

Learned Standing Counsel may
obtain instructions.

Post as fresh, once again, on
10.9.2021.

Status quo with regard to working
in the office of Officiating Principal, till then,
shall be maintained."

Pursuant to the order of this Court
dated 27.08.2021, learned Standing Counsel
on the instructions, which is taken on record,
states that the charge of the petitioner has
been taken on the ground that the petitioner is
not the senior most Associate Professor in the
College.

Be that as it may, the order
impugned discloses that certain charges have
been levelled against the petitioner, on the
basis of which, the charge of Officiating
Principal has been withdrawn from him. A
reading of the impugned order discloses that
the order is punitive and stigmatic in nature,
thus, the order impugned could not have been
passed without giving any notice or
reasonable opportunity of hearing to the
petitioner.

Learned Standing Counsel submits
that the instructions with regard to the
averments made in paragraph no.21 of the
writ petition are silent, even otherwise perusal
of the impugned order does not indicate that
any notice or opportunity of hearing has been
afforded to the petitioner by the respondent
no.6 before passing the impugned order.

In this view of the fact, the order
impugned is not sustainable, hence, is
hereby set aside.

As in the present case, respondent
no.6-Regional Higher Education Officer,
Varanasi Region, Varanasi is also the
Administrator of the College, therefore, in
the facts of the present case, this Court is of
the opinion that in the interest of justice it
would be appropriate to refer the matter to
the
respondent
no.2-Director,
Higher
Education, U.P. Degree (Earth-I) Anubhag,
Prayagraj to take a decision with reference
to the continuance of the petitioner as
Officiating Principal of the College within
a period of two months from today, after
giving due notice and opportunity of
hearing to the petitioner as well as other
interested parties.

The writ petition is allowed
subject to the observations made above."

"Order
on
Civil
Misc.
Impleadment Application

The
present
impleadment
application has been filed by one Anil
Kumar Singh for being impleaded as
respondent no.8 in the array of parties.

The applicant has filed the
present
impleadment
application
contending inter-alia that he applicant was
working on the post of Accountant in the
College and he has retired on 30.06.2021.
The petitioner was appointed as Officiating
Principal in the College on 12.06.20218 but
after some time without any reason he
restrained the applicant to work in the
College
and
thereafter
the
applicant
informed
about
the
conduct
of
the
petitioner to the higher authority as well as
on the portal of the Hon'ble Chief Minister
on 18.02.2020 about the embezzlement of
found of the said College as well as
verification of false document of the
petitioner. Thereafter, the authority has
1 All. Dr. Dhananjay Singh Vs. State of U.P. & Ors.
1225
considered the complaint of the applicant
and on an inquiry being instituted, the
petitioner was removed from the post of
Officiating Principal on 03.08.2021 and
senior most teacher Dr. Dharmatma Nand
Associate Professor (Economics) has been
appointed as Principal in the College. The
applicant was being mentally harassed by
the petitioner without there being any
complaint or reason, and therefore any
passed in favour of the petitioner would
seriously prejudice the applicant.

In the opinion of the Court, since
the applicant has already retired from the
service, hence, the impleadment application
is misconceived. Accordingly, the present
impleadment
application
being
misconceived, is hereby rejected."

13. Pursuant to the order dated
13.9.2021 passed in Writ-A No.10764 of
2021, the third respondent, Joint Director
of Higher Education U.P. at Prayagraj
issued a communication dated 27.9.2021 to
the writ petitioner herein, Sri Anil Kumar
Singh, Accountant as well as to Regional
Higher
Education
Officer,
Varanasi
Region, Varanasi fifth respondent requiring
them to the present along with their
versions on 5.10.2021 for hearing.

14. The writ petitioner claims to have
tendered its version on 5.10.2021. Thereafter
on 27.5.2022 the Joint Director of Higher
Education on behalf of Director of Higher
Education U.P. at Prayagraj proceeded to
pass an order whereby it held that in view of
the irregularities found against the writ
petitioner as an Officiating Principal the sixth
respondent being the senior most was entitled
to officiate as Principal.

15. This led to filing of Writ-A
No.9761 of 2022 by the writ petitioner
which came to be decided on 19.10.2022
order whereof is being quoted here under:-

"Heard Sri H.N. Singh learned
Senior Counsel assisted by Sri Girdhar
Prasad Tripathi learned counsel for the
petitioner, the learned Standing Counsel for
the State respondents and Sri Prabhakar
Awasthi learned counsel for the private
respondent.

Challenge has been raised to the
order dated 27.5.2022 passed by the Joint
Director Education. By that order, the
claim of the petitioner to be reinstated as
officiating Principal of Mathura P.G.
College, Rasra, District Ballia, has been
rejected.

Having heard learned counsel for
parties and having perused the record, it
transpires, claim of the petitioner stems
from the earlier order passed by the
Administrator of the institution making
over officiating charge of Principal to the
petitioner. Petitioner claims that the said
order would operate till a regularly selected
candidate joins the institution.

On the other hand, Sri Awasthi
would claim that the petitioner is next in
seniority to the private respondent No. 6.
He could only claim continuance of
officiating charge of Principal for three
months from the date of issuance of the
order 06.8.2021. Since the respondent No.
6 had expressed his inability to function as
the Principal for some time, the said
respondent did not waive off his right to be
considered to discharge officiating charge
of Principal of the above named institution
after the initial period of three months.

That objection raised by learned
counsel for the private respondent has been
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
met with a further submission advanced by
learned Senior Counsel for the petitioner,
who would contend that the language of
the order dated 12.6.2018 is clear. In any
case, the vacancy had arisen on 12.8.2016
and therefore, the situation contemplated
by the statute 20-A(12) cannot be relied
upon against the petitioner.

While
such
and
other
submissions are being pressed by learned
counsel for parties, impugned order
indicates complete non application of
mind. Besides making a bald recital of
the claim made by the parties and quoting
the provisions of law, no consideration of
facts has been made and no reasoning is
contained in the order before reaching the
conclusion that the petitioner is not
entitled to restoration of officiating
charge of Principal. The approach of the
Joint Director is not appreciated. Quasi
judicial
authorities
are
vested
with
important function to decide the claims
involving civil rights of citizens. Once
the Court requires such authorities to pass
an order in accordance with law, it entails
the responsibility to afford reasons for the
conclusions to be recorded by such
authorities.

In absence of any reasoning
given, the impugned order cannot be
sustained. It is set aside. Matter is
remitted to respondent No. 3 to pass a
fresh order strictly in accordance with
law after affording due opportunity of
hearing to the parties and giving adequate
reasons to meet their submissions. Such
exercise may be completed within a
period of two months from today.

Till the decision to be taken by
the respondent No. 3, pursuant to this
order, status quo as on date may prevail.

With the above directions, writ
petition stands disposed of."

16. The writ petitioner thereafter
preferred an application setting out the
facts that he was entitled to officiate as the
Principal in question. However, now the
order impugned has been passed by the
third respondent, Joint Director of Higher
Education U.P. at Prayagraj on behalf of
the Director of Education Prayagraj dated
12.1.2023 whereby the claims set up by the
writ petitioner has been negated.

17. Questioning the order dated
12.1.2023 passed by the third respondent,
Joint Director of Higher Education U.P. at
Prayagraj on behalf of the Director of
Education Prayagraj the present petition
has been preferred.

18. This Court entertained the writ
petition
on
19.7.2023
wherein
the
following order was passed:-

"Vakalatnama
filed
by
Sri
Siddharth Khare on behalf of respondent
no.6 is taken on record.

Sri H.N. Singh, learned Senior
Counsel assisted by Sri Girdhar Prasad
Tripathi, for the petitioner has sought to
argue that the order dated 12.1.2023 passed
on behalf of the second respondent,
Director Higher Education U.P. Degree
(Earth-I) Anubhag, Prayagraj by Joint
Director Higher Education, U.P. Prayagraj
proceeds on misconception of fact. Though
two grounds have been taken in the order
impugned firstly, that as per the seniority
list dated 11.9.2020 and 30.9.2021 the sixth
respondent is senior to the writ petitioner
and secondly in view of the allegations of
financial misappropriation, irregularities
the writ petitioner cannot be allowed to
1 All. Dr. Dhananjay Singh Vs. State of U.P. & Ors.
1227
function of the post of Officiating Principal
in the fourth respondent institution.

Sri H.N. Singh, learned Senior
Counsel has argued that he does not dispute
the seniority position of the writ petitioner
vis-a-vis the sixth respondent, however
according to him pursuant to the own
sweet-will of the sixth respondent he
showed its inability to officiate on the said
post due to the medical ailments and the
writ petitioner was allowed to officiate
since 12.6.2018 however in the garb of
allegations
pertaining
to
financial
irregularity he had been sought to be
ousted. He has further argued that the first
attempt was made on 6.8.2021 wherein
certain allegations relating to financial
irregularities were sought to be slapped
upon the writ petitioner which was subject
matter of challenge in Writ-A No.10764 of
2021, Dr. Dhananjay Singh vs. State of
U.P. and 6 others which came to be
allowed on 13.9.2021 wherein this Court
opined that the order was punitive and was
passed in violation of principle of natural
justice, the matter was remitted to the
second respondent to pass an order and
thereafter consequent to the notice another
order was passed on 27.5.2022 whereby a
ground was taken that the writ petitioner
was junior to the sixth respondent, thus the
writ petitioner had no claim about the same
which even in fact was also subject matter
of challenge by the writ petitioner in WritA No.9761 of 2022 (Dr. Dhananjay Singh
vs. State of U.P. & five others wherein the
order was set aside and the matter was
remitted back though status quo as on date
was directed to be maintained.

Learned counsel for the writ
petitioner submits that now the impugned
order has been passed again negating the
claim of the writ petitioner on the said two
grounds and discussed above. He further
submits that by virtue of a communication
dated 17.11.2020 at page 67 of the paper
book and it has been recommended to hold
inquiry against the writ petitioner with
regard to the certain allegations and on 4th
December, 2020 the Commissioner in
question while corresponding with the State
Government and also recommended for
holding of inquiry but post the said two
documents
on
6.8.2021
the
second
respondent has issued a communication to
the fourth respondent wherein after taking
the version of the writ petitioner, it has
been mentioned that Sri Anil Kumar Singh,
the Accountant was responsible for the
financial irregularities. According to Mr.
Singh the said entire exercise is just in
order to dislodge the writ petitioner and to
continue the sixth respondent to function as
the Officiating Principal in the fourth
respondent institution.

Sri Ashok Khare, learned Senior
Advocate on the other hand submits that
the interpretation which is being sought to
be shown by the learned counsel for the
petitioner that the refusal is for a time
immemorial is not sustainable particularly
for the fact that it was due to the medical
reasons limited to one year and further the
writ petitioner does not possess any legal
enforceable
right
to
be
posted
as
Officiating Principal.

Parties are also in agreement that
the sixth respondent is still holding the
charge as an Officiating Principal of the
institution in question or order which is
being sought to be quashed is dated
12.1.2023.

Sri Awadhesh Kumar Mishra,
learned Standing Counsel who appears for
the respondent no. 1 to 5 shall seek
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
instructions and file their response within a
period of two weeks. Sri Khare may also
file their response within aforesaid period.

Put up this case on 10.8.2023 as
fresh."

19. A counter affidavit has been filed
on behalf of respondents no. 2, 3 & 5 of the
Assistant Director in the office of the
Director,
Higher
Education
U.P.
at
Prayagraj dated 11.10.2023 followed by a
counter affidavit on behalf of the sixth
respondent to which rejoinder affidavits
have been filed.

20. A statement has been made by Sri
Saurabh, learned Standing Counsel that an
Administrator has been appointed in the
Mathura P.G. College, Rasra, District
Ballia who is the District Magistrate, Ballia
thus
he
also
represents
the
fourth
respondent and he does not propose to file
any response further.

21. Sri H.N. Singh, learned Senior
Counsel for the writ petitioner submits that
the order dated 12.1.2023 passed by the
third
respondent,
Joint
Director
of
Education, U.P. Prayagraj, on behalf of the
Director of Education U.P. Prayagraj is not
sustainable even for a single moment
particularly in view of the fact that once the
sixth respondent, Dr. Dharmatmanand
Gupta who though is senior to the writ
petitioner had shown its inability to
perform
functions
as
an
Officiating
Principal on 11.6.2018 owing to health
issues and thereafter the writ petitioner who
was next in the league was allowed to
function as an Officiating Principal by
virtue of the order dated 12.6.2018 of the
fourth respondent and he was handed over
the charge on 14.6.2018 then now it is not
open for the sixth respondent to again claim
officiation as a Principal taking a U-turn
and a somersault as the vacancy which had
arisen on account of superannuation of the
regular Principal is still continuing without
there being any change thus according to
him the sixth respondent has foregone his
right and his claim is barred by the doctrine
of delay latches and acquiescence.

22. Learned counsel for the writ
petitioner
seeks
to
relies
upon
the
judgement in the case of Sundershan
Kumar vs. State of U.P. & others,
Special Appeal No.959 of 2006 decided on
15.9.2006, Ashok Kumar Jain vs. State of
U.P. 2008 (1) ADJ 512, Smt. Archana
Singh vs. State of U.P. 2009(6) ADJ 115
and Smt. Duleshwari Devi vs. State of
U.P. and others 2012(3) ADJ 742. While
drawing force from the aforesaid judgments
it is being sought to be submitted on behalf
of the writ petitioner that once an
incumbent declines to officiate as a
Principal on the very vacancy despite being
senior
most
then
he/she
cannot
be
permitted to turn around and to claim
appointment as an Officiating Principal on
the said post.

23. Further reliance has been placed
upon the judgement in the case of Babulal
Badriprasad Varma vs. Surat Municipal
Corporation and others (2008) 12 SCC 401
and ARCE Polymers Private Ltd. vs.
Alphine Pharmaceuticals Private Ltd. and
others (2022) 2 SCC 221 so as to contend
that the doctrine of estoppel acquiescence
and waiver will come into play with regard
to the statutory right so claimed by the writ
petitioner once he had declined to officiate
as a Principal.

24. Learned Senior Counsel for the
writ petitioner has further argued that it was
not open for the sixth respondent to claim
1 All. Dr. Dhananjay Singh Vs. State of U.P. & Ors.
1229
right
of
officiation
particularly
after
enormous and inordinate delay in claiming
its legal right after a period of seven years
while relying upon the decision in the case
of Union of India and others vs. N.
Murgu Ganeshan 2022 (2) SCC 25.

25. It also argued by learned Senior
Counsel for the writ petitioner that one of
the ground which was made basis for
passing of the order dated 12.1.2023 by the
third respondent is that there happens to be
an inquiry conducted at the level of the
State respondents pursuant whereto it was
found
that
the
writ
petitioner
had
committed
financial
and
procedural
irregularities while functioning at the
Officiating Principal of the institution in
question. According to him a departmental
charge sheet was issued to the writ
petitioner dated 13.8.2021 by the Inquiry
Officer to which the writ petitioner
tendered its reply and thereafter the Inquiry
Officer tendered its inquiry report dated
25.9.2021 but till date no final action has
been taken in pursuance of the inquiry
report dated 25.9.2021 submitted by the
Inquiry Officer before the Disciplinary
Authority/Regional
Higher
Education
Officer, Varanasi/fourth respondent. He
submits that even from the perusal of the
charge sheet and the findings recorded by
the Inquiry Officer it is clear that the
inquiry proceedings was the sham as
nothing has been set out in the inquiry
report so as to suggest that the writ
petitioner had committed any financial or
procedural irregularities so as to inflict any
punishment upon him. Submission is that in
order to block the chances of the writ
petitioner to officiate as a Principal of the
institution in question an inquiry report has
been prepared and it has been kept in a
drawer so as to use it as a tool whenever
the occasion arises.

26. Learned Senior Counsel for the
writ petitioner lastly submits that the entire
dispute arose when the writ petitioner in the
capacity of an Officiating Principal did not
take any work from Sri Anil Kumar, who
was the Accountant of the institution in
question
who
committed
financial
irregularities which came to be noticed in
the communication dated 6.8.2021.

27. Thus it is prays that the impugned
order be set aside.

28. Countering the said submission,
Sri Ashok Khare, learned Senior Counsel
appearing for sixth respondent submitted
that the writ petitioner is not entitled to any
relief as admittedly the sixth respondent is
senior to the writ petitioner. The sixth
respondent owing to his medical issues had
shown its inability to officiate as the
Principal of the institution in question for a
period
of
one
year
and
in
its
communication dated 11.6.2018 he had
specifically pointed that after a period of
one year he would work as an Officiating
Principal and thus according to him the said
act of declining to function as an
Officiating Principal was not a permanent
denial to work as an Officiating Principal
but for a specific reason for a limited
period and once the sixth respondent
became well then now he is claiming for
officiation as a Principal of institution in
question. He further submits that on
account of inability of the sixth respondent
for a particular period the writ petitioner
was allowed to officiate thus he cannot
resist the claim of the writ petitioner as
admittedly it is the right of a senior most
incumbent to officiate as the Principal of
the institution in question. He seeks to rely
upon the decision in the case of Dhanesh
Kumar Sharma vs. State of U.P. &
others (2004) 5 AWC 4099, Special
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal No.506 of 2022, Vikas Jain vs.
State of U.P. & five others decided on
8.7.2022, Special Appeal No.677 of 2022,
Ashok Kumar Pandey vs. State of U.P.
& four others decided on 19.12.2022
and judgement in the case of Dr.
Jagathy Raj V.P. vs. Dr. Rajitha Kumar
S. And others (2022) 6 SCC 299.

29. Sri Ashok Khare, learned Senior
Counsel has invited the attention of the
court towards the communication dated
17.11.2020 of the Chief Development
Officer,
Ballia
addressed
to
the
Commissioner
Azamgarh
Region,
Azamgarh,
communication
dated
30.7.2021 of the Joint Director of Higher
Education on behalf of the Director of
Higher Education to the Administrator,
Mathura P.G. College, Mathura and the
order dated 6.8.2021 of the Administrator,
Mathura P.G. College, Rasda, District
Ballia so as to contend that there were
several
complaints
against
the
writ
petitioner while working as an Officiating
Principal with respect to financial and
technical irregularities. He submits that in
the wake of said allegations rightly the
order impugned has been passed whereby
the writ petitioner has been divested from
his right to continue as an Officiating
Principal giving charge to the sixth
respondent who is obviously senior to the
writ petitioner. According to him the said
exercise has been undertaken in the
interest of the institution and it is s a
conscious decision.

30. Sri Saurabh, learned Standing
Counsel has adopted the arguments of Sri
Khare and according to him the impugned
order is perfectly valid in accordance with
law and no fault whatsoever can be
attributed in this regard and the writ
petition is liable to be dismissed.

31. I have heard learned counsel for
the parties and perused the record carefully.

32.

Undisputedly,
the
fourth
respondent
institution,
Mathura
P.G.
College, Rasra, District Ballia is a Post
Graduate institution affiliated with Jan
Nayak Chandrashekhar University, Ballia.
So far as the provisions pertaining to
officiation is concerned the same is
provided under Statute 12Ka.20. As per the
said Statute whenever the post of Principal
falls vacant then the Committee of
Management of the said institution for a
period of three months or till the
appointment of the Regular Principal
whichever is earlier can appoint an
Officiating Principal, according to the
choice and in case post completion of three
months and non-joining of a Regular
Principal the Senior Most Teacher is to be
granted officiation till the joining of the
regularly selected Principal. It is also not in
dispute that the sixth respondent is senior to
the writ petitioner.

33. The dispute came into existence
when the sixth respondent showed its
inability to officiate as the Principal of the
institution in question on 11.6.2018 owing
to medical issues by virtue of a letter
containing a recital that after the period one
year and post his recovery he shall be
present for officiating as the Principal in
institution in question. The writ petitioner
who was next in the league was accorded
officiation on 12.6.2018 and he assumed
charge as an Officiating Principal on
14.6.2018. Thereafter on 5.7.2021 the writ
petitioner claims to have approached the
respondents for permitting him to officiate.

34. The bone of contention of the
rival
parties
is
as
to
whether
the
communication dated 11.6.2018 declining
1 All. Dr. Dhananjay Singh Vs. State of U.P. & Ors.
1231
to officiate as a Principal would be for all
time be treated to be a refusal to officiate as
a Principal or not. An additional fact also
needs to be noticed at this juncture that it is
the same vacancy which had arisen on
12.8.2016 consequent to the retirement of a
Regular
Principal,
though
the
writ
petitioner who is junior to the sixth
respondent was allowed to officiate.

35. The Division Bench of this Court
in the case of Sundershan Kumar (Supra)
had the occasioned to consider the said
issue and it was held as under:-

"In the present case the facts are
different. The substantive vacancy had
arisen on 30.6.2003 and the same vacancy
is continuing. It is not a case where leave
vacancy has subsequently been converted
into a substantive vacancy or a fresh
substantive vacancy had arisen. Therefore,
respondent no.6 having refused to officiate
as the Principal on the said substantive
vacancy, he is not entitled to stake claim
for appointment as Officiating Principal on
the same very vacancy subsequently on the
retirement
of
Officiating
Principal.
Therefore, the above case law is of no help
to respondent no.6 and in fact it goes
against him in as much there is no fresh
substantive
vacancy
of
the
post
of
Principal.

In our opinion, respondent no.6 in
unequivocal terms had refused to officiate
as Principal when the substantive vacancy
of the post of Principal had occurred on
30.6.2003. The said same post continued to
remain
vacant
as
no
substantive
appointment on the said vacancy was made.
Mere fact that an ad-hoc arrangement of
Officiating Principal, which was made
earlier on the said post, has come to an end,
it does not mean that a fresh substantive
vacancy had been created or arisen. The
substantive vacancy remains the same and
only Officiating arrangement has come to
an end. Since respondent no.6 had declined
to officiate as Principal on the said very
vacancy, he cannot be permitted at this
stage to turn around and to claim
appointment as Officiating Principal on the
same very post.

The respondent no.6 having
refused to accept Officiating appointment
is estopped under Law from claiming
officiating appointment on the same
substantive vacancy. It would have been
a different thing if a substantive vacancy
which had occurred earlier, had been
filled up by a regular appointment and
then a fresh vacancy had been created. In
that event, respondent no.6 may have
become entitle for reconsideration for
Officiating
Principal
on
the
fresh
substantive vacancy.

The above view taken by us
stands fortified by an unreported Division
Bench Judgment of this Court in the case
of Smt. Sudesh Kakkar Vs. The Regional
Inspector of Girls Schools & Ors. passed
in Special Appeal No.141 of 1993
decided on 7.4.1994, which has been
relied upon in the case of Satya Vir Singh
(supra)."

36. Though, Sri Khare, has relied
upon the decision in the case of Dhanesh
Kumar Sharma (Supra) that refusal at a
point of time to officiate as a Principal
would not be for time immemorial but the
said judgement would not be of any help to
the sixth respondent particularly when the
said judgement stood impliedly overruled.
In para 7 of the judgement in the case of
Ashok Kumar Jain (Supra) it was held as
under:-
1232 INDIAN LAW REPORTS ALLAHABAD SERIES

"7.
The
substantive
vacancy
occurred on 30.6.1998 on the retirement of
Rames Chandra Gupta and no fresh
vacancy occurred upon the retirement of
Girish Chandra Jain on 30.6.1997. It was
the
same
vacancy
which
continued.
Consequently, the vacancy which occurred
on 30.6.1998 continued and continued to
exist 30.6.2007.