# Prem Chandra v. State Of U.P. & Ors

- **Citation:** (2016) 5 ILRA 1063
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-31
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-chandra-v-state-of-u-p-ors-43726
- **Pages:** 10

## Headnote

Service Law -U.P. Secondary Education Services Selection Board Act, 1982 - Section 18 - Ad hoc Principal
- Officiating Principal - Senior most teacher - Lecturer grade - Whether mandatory appointment -
Competence and suitability - Interest of institution and students - Supersession of senior most teacher -
Recording of reasons - Opportunity of hearing - Adverse material - Committee of Management resolution
- District Inspector of Schools - Judicial clarification of earlier judgment - Compliance of court ordersDisposed of.
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioner herein had earlier approached this court by means of writ petition no.9473(SS) of 2016 seeking
a writ of mandamus for being allowed to officiate as Principal in the respondent-Intermediate College in view
of the provision contained in Section 18 of the U.P. Secondary Education Services Selection Board Act 1982
(hereinafter referred as 'Act of 1982'). The said writ petition was disposed of vide judgment dated 3.5.2016
(Para 2)

Contention of the learned counsel for the petitoiner is that the impugned decision, more so the consequential
order dated 11.5.2016, is apparently in contempt of the observations/directions made by this court in the
judgment dated 3.5.2016 referred hereinabove. Inspite of the fact that the aforesaid judgment was brought
to the knowledge of the District Magistrate and the District Inspector of Schools (D.I.O.S.), same was not
adhered and the petitioner, who, admittedly, is the seniormost, was not appointed, instead, the opposite party
no.8 who is at serial no.4 in the seniority list has been appointed/promoted. (Para 4)

The learned Standing Counsel appearing for the State and its authorities contended that the Committee of
Management resolved on 13.4.2016 to appoint the opposite party no.4 much prior to passing of the judgment
dated 3.5.2016. It was found that there were certain adverse material against the petitioner as also the
persons who were placed at serial nos.2 and 3 in the seniority list, which related to their work and conduct,
therefore, the Committee in its wisdom and and in the interest of the institution and the students did not find
it suitable to appoint them as Principle, instead, it decided to appoint the opposite party no.8. In this regard
he invited attention of the court to various pronouncements wherein it has been held that though ordinarily
the seniormost teacher should be appointed, but there was no hard and fast rule as in the event the claimant
is found incompetent or otherwise disentitled for the post of the Head of the Institution, then junior person
can also be appointed. (Para 5)

Held: (Para 8,18,19,24,25,26 )

## Text

5 All. Prem Chandra Vs State Of U.P. & Ors.

1063
and Director General of Police. The Court also takes note of the fact that one of the original files
produced before the Court is that of the Police Establishment Board at district level which approves
the transfer and posting of police personnel, in the light of the judgment of the Supreme Court in
the case Prakash Singh, even the said file does not contain any note sheet and this Court has
reasons to believe that pagination and indexing has been done only after observations was made by
the Court vide its order dated 17.05.2016. This is the state of affairs relating to maintenance of such
files.

15. It is, therefore, directed that the aforesaid officers shall look into the matter and issue
necessary Government order/circulars, as the case may be, for proper maintenance of files in the
office of the Superintendent of Police and other offices as well, in Districts in the State of U.P. in
keeping with the rules and norms followed in other departments of the Government.

16. Let this be done within a period of two months from the date of receipt of a certified
copy of this order.

17. For the reasons mentioned in the earlier part of the judgment the writ petition is
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.05.2016

BEFORE

THE HON'BLE RAJAN ROY, J.

Service Single No.- 12474 Of 2016

Prem Chandra ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ramesh Pandey, Manushresth Misra

Counsel for the Respondents:
C.S.C., Nagendra B. Singh.

Service Law -U.P. Secondary Education Services Selection Board Act, 1982 - Section 18 - Ad hoc Principal
- Officiating Principal - Senior most teacher - Lecturer grade - Whether mandatory appointment -
Competence and suitability - Interest of institution and students - Supersession of senior most teacher -
Recording of reasons - Opportunity of hearing - Adverse material - Committee of Management resolution
- District Inspector of Schools - Judicial clarification of earlier judgment - Compliance of court ordersDisposed of.
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioner herein had earlier approached this court by means of writ petition no.9473(SS) of 2016 seeking
a writ of mandamus for being allowed to officiate as Principal in the respondent-Intermediate College in view
of the provision contained in Section 18 of the U.P. Secondary Education Services Selection Board Act 1982
(hereinafter referred as 'Act of 1982'). The said writ petition was disposed of vide judgment dated 3.5.2016
(Para 2)

Contention of the learned counsel for the petitoiner is that the impugned decision, more so the consequential
order dated 11.5.2016, is apparently in contempt of the observations/directions made by this court in the
judgment dated 3.5.2016 referred hereinabove. Inspite of the fact that the aforesaid judgment was brought
to the knowledge of the District Magistrate and the District Inspector of Schools (D.I.O.S.), same was not
adhered and the petitioner, who, admittedly, is the seniormost, was not appointed, instead, the opposite party
no.8 who is at serial no.4 in the seniority list has been appointed/promoted. (Para 4)

The learned Standing Counsel appearing for the State and its authorities contended that the Committee of
Management resolved on 13.4.2016 to appoint the opposite party no.4 much prior to passing of the judgment
dated 3.5.2016. It was found that there were certain adverse material against the petitioner as also the
persons who were placed at serial nos.2 and 3 in the seniority list, which related to their work and conduct,
therefore, the Committee in its wisdom and and in the interest of the institution and the students did not find
it suitable to appoint them as Principle, instead, it decided to appoint the opposite party no.8. In this regard
he invited attention of the court to various pronouncements wherein it has been held that though ordinarily
the seniormost teacher should be appointed, but there was no hard and fast rule as in the event the claimant
is found incompetent or otherwise disentitled for the post of the Head of the Institution, then junior person
can also be appointed. (Para 5)

Held: (Para 8,18,19,24,25,26 )

1. On a consideration of all the aforesaid pronouncements on the issues involved which are similar to the one
involved in the present case, the legal position that emerges is that though ordinarily the seniormost teacher
in the lecturer grade should be appointed as ad hoc Principal of an intermediate college, but, in the event of
the seniormost claimant being incompetent or otherwise unsuitable or his appointment not being in the
interest of the institution and the students, he can be superseded, but, only for reasons to be recorded in
writing, that too, after giving an opportunity of hearing which need not be personal hearing, but in the nature
of being confronted with the adverse material against him alongwith with an opportunity to submit a
representation, reply/explanation, which shall be considered..

2. On a consideration of all the aforesaid pronouncements on the issues involved which are similar to the one
involved in the present case, the legal position that emerges is that though ordinarily the seniormost teacher
in the lecturer grade should be appointed as ad hoc Principal of an intermediate college, but, in the event of
the seniormost claimant being incompetent or otherwise unsuitable or his appointment not being in the
interest of the institution and the students, he can be superseded, but, only for reasons to be recorded in
writing, that too, after giving an opportunity of hearing which need not be personal hearing, but in the nature
of being confronted with the adverse material against him alongwith with an opportunity to submit a
representation, reply/explanation, which shall be considered. Observation made by the Division Bench in
Shamshul Zama (supra) in para 11 thereof though made in the context of a qualified or unqualified teacher
are also relevant generally for the purposes of ad hoc appointment on the post of Head of the institution.

3. In view of the aforesaid the observations contained in the judgment dated 3.5.2016 passed in the earlier
writ petition No.9473(SS) of 2016 are hereby clarified to the effect that while considering ad hoc appointment
5 All. Prem Chandra Vs State Of U.P. & Ors.

1065
of the Principal of the respondent-Institution under Section 18 two months after notification of the vacancy to
Board, the legal position noted hereinabove shall be kept in mind and decision shall be taken accordingly.

4. Considering the fact that the resolution dated 13.4.2016 was passed by the Committee of Management
prior to the judgment dated 3.5.2016, the same cannot be faulted on the ground of non-adherence to the
said judgment, but, certainly it does not stand judicial scrutiny when tested on the anvil of the aforesaid
settled legal position, as, if there was adverse material against the petitioner, then he ought to have been
confronted with it. Furthermore before passing the impugned resolutions/orders, reply submitted by the
petitioner to the notice issued to him has also not been considered, therefore, the said resolutions/orders
cannot be sustained and are hereby quashed, however considering the assertion of the opposite parties that
the petitioner was allegedly stopped by the Board from examining the answer-sheets for five years on account
of alleged tampering of answer-sheets by him, though it is denied by the learned counsel for the petitioner,
who asserts that he has been regularly examining the answer-sheets, the court is of the view that the interest
of the institutions and ends of justice will be served if the existing arrangement on the post of the Principal
under which the opposite party no.8 is functioning is allowed to continue till a fresh decision is taken as
aforesaid. It is ordered accordingly. It is also made clear that though the impugned resolution has been
quashed, it shall be open for the Management to consider the allegations and material referred therein while
taking a fresh decision in the matter.

5.If it is so, then the Committee of Management shall not wait for a period of two months nor will it send its
requisition again, instead it shall take a fresh decision in the light of the discussion made hereinabove within
ten days from the date a certified copy of this order is submitted. Before parting, there is another aspect of
the matter which needs to be dealt with. Even after judgment of this court was brought to the notice of the
D.I.O.S., he did not adhere to the same. Once it came to his knowledge, he could not have ignored it nor
could he have acted in violation thereof. Even if there was adverse material against the petitioner available
with the opposite parties and another view of the matter was possible, different from the one taken by this
court, the course open to him was to bring these facts to the notice of the court and either to seek a
clarification of the judgment or its review, but he could not have just brushed it aside. In future he shall keep
this in mind and shall not repeat this audacity. The writ petition is disposed of in the aforesaid terms

Case Law discussed: --

State of U.P. vs. Jagdev Singh, 1984 (Supp) SCC 413 - Paras 4
State of Haryana and others v. Kashmir Singh and another, (2010) 13 SCC 306 - Paras 8, 9
 State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 - Para 10

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. The petitioner herein had earlier approached this court by means of writ petition
no.9473(SS) of 2016 seeking a writ of mandamus for being allowed to officiate as Principal in the
respondent-Intermediate College in view of the provision contained in Section 18 of the U.P.
Secondary Education Services Selection Board Act 1982 (hereinafter referred as 'Act of 1982'). The
said writ petition was disposed of vide judgment dated 3.5.2016. For the reasons mentioned therein
following arrangement was made under the orders of this court:

"In view of the above it is ordered as under:-
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
a) Let the committee of management look into the matter and notify the vacancy, if
any, on the post of Principal immediately, if, there is no other legal impediment.

b) If there is a substantive vacancy as claimed let the committee of management
appoint the senior most teacher as officiating Principal of the institution in the meantime, within a
period of two weeks from the date a certified copy of this order is produced before it.

c) From the date of notification of vacancy as aforesaid after a lapse of a period of
two months, officiating appointment as aforesaid shall be treated as ad-hoc appointment under
Section 18 of the Act, 1982.

The consequences shall follow as per law.

The aforesaid arrangement has been made in the peculiar facts and circumstances
of the case which have arisen and the fact that the institution can not remain without a Principal.
Needless to say that if the committee of management does not act upon the orders of this Court,
then the District Inspector of School shall do the same. It is made clear that this Court has not
adjudicated the merits of the claim of the petitioner that he is the senior most lecturer and if there
is any dispute pending in this regard before any court or authority and any order adverse to the
petitioner is operating then the same shall be taken into consideration.

The writ petition is disposed of in the aforesaid terms."

3. It appears that prior to passing of the said judgment on 3.5.2016 the Committee of
Management which comprised of the District Magistrate and S.D.M. etc. had already taken a
decision on 13.4.2016 for the appointment of opposite party no.8 as officiating Principal, although
the petitioner herein claims that this resolution has been prepared subsequently. The opposite party
no.8 is placed at serial no.4 in the seniority list of Lecturer Grade; the petitioner is placed at serial
no.1. There is no dispute in this regard that the persons at serial nos.2 and 3 namely Sandhya
Srivastava and Ram Vilas have not come forward to challenge the decision impugned herein.

4. Contention of the learned counsel for the petitoiner is that the impugned decision, more
so the consequential order dated 11.5.2016, is apparently in contempt of the observations/directions
made by this court in the judgment dated 3.5.2016 referred hereinabove. Inspite of the fact that the
aforesaid judgment was brought to the knowledge of the District Magistrate and the District
Inspector of Schools (D.I.O.S.), same was not adhered and the petitioner, who, admittedly, is the
seniormost, was not appointed, instead, the opposite party no.8 who is at serial no.4 in the seniority
list has been appointed/promoted.

5. The learned Standing Counsel appearing for the State and its authorities contended that
the Committee of Management resolved on 13.4.2016 to appoint the opposite party no.4 much prior
to passing of the judgment dated 3.5.2016. It was found that there were certain adverse material
against the petitioner as also the persons who were placed at serial nos.2 and 3 in the seniority list,
5 All. Prem Chandra Vs State Of U.P. & Ors.

1067
which related to their work and conduct, therefore, the Committee in its wisdom and and in the
interest of the institution and the students did not find it suitable to appoint them as Principle,
instead, it decided to appoint the opposite party no.8. In this regard he invited attention of the court
to various pronouncements wherein it has been held that though ordinarily the seniormost teacher
should be appointed, but there was no hard and fast rule as in the event the claimant is found
incompetent or otherwise disentitled for the post of the Head of the Institution, then junior person
can also be appointed.

6. Sri N.B. Singh, Advocate, appearing for opposite party no.8 placed before the court a
Division Bench judgment reported in 2005(23) LCD 753, Rajendra Prasad Shukla v. Ram Chandra
Singh, the judgment reported in (1992) 1 UPLBEC 716, Tribhuwan Mishra v. District Inspector of
Schools, Azamgarh as also the decision of the Supreme Court reported in 1995 Supp (3) SCC 170,
Ram Murti Singh v. District Inspector of Schools, Deoria & ors., to support the stand of the learned
Standing Counsel.

7. In response, Sri Ramesh Pandey, learned counsel for the petitioner submitted that the
judgment in Ram Murti Singh (supra) was rendered in the context of Rule 4 of the U.P. Secondary
Education Service Commission (Removal of Difficulties) Order, 1981 (hereinafter referred as
'Removal of Difficulties Order 1981'), and not Section 18 of the Act of 1982. Likewise, the other
decisions relied upon by the opposite parties were rendered prior to the amendment in Section 18 of
the Act of 1982. He contended that in Rule 4 of the Removal of Difficulties Order 1981 the word
used was 'may', whereas, the word used in Section 18 of the Act of 1982 was 'shall appoint
seniormost teacher' therefore, he contends that it is mandatory to appoint the seniormost teacher
especially as according to him sub-Section (2) provides that if the Committee of Management fails
to do so, then the D.I.O.S. Shall appoint the seniormost teacher. He contends that there is no
adverse material against the petitioner which could dis-entitle him from being appointed/promoted
as officiating/ad hoc Principal of the institution. In the alternative he also submitted that even if the
opposite parties proposed to by-pass him in the matter, the least that was required to be done was to
give opportunity of hearing in terms of the judgment of this court in Tribhuwan Mishra's case
(supra) which has not been done, therefore, the impugned order, according to him, stands vitiated.

8. Learned Standing Counsel appearing for the State authorities after seeking instructions
from the District Magistrate concerned who is also managing the institution at present with the
assistance of the district authorities informs the court that the resolution of the Committee of
Management had been passed prior to 3.5.2016. So far as compliance of the judgment of this court
is concerned, as he was engaged in law and order situations, therefore, he could not comply the
same but he undertakes to do so within next ten days, meaning thereby, he undertakes to revisit the
matter afresh in the light of the judgment dated 3.5.2016 passed in earlier writ petition filed by the
petitioner.

9. However, on a reading of the earlier judgment passed by this court it is found that certain
relevant aspects of the matter could not be taken into consideration while passing the said
judgment. One of the questions which could not be considered is whether under Section 18 of the
1068 INDIAN LAW REPORTS ALLAHABAD SERIES
Act of 1982 the seniormost teacher is mandatorily to be appointed as ad hoc principal of the
institution or in a given situation it is permissible not to appoint him. It is therefore necessary to
consider this aspect of the matter.

10. Section 18 of the Act of 1982 as mandated on 30.12.2016 reads as under:

"18. Ad hoc Principals or Headmasters.- (1) Where the Management has notified
a vacancy to the Board, in accordance with sub-section (1) of Section 10 and the post of the
Principal or the Headmaster actually remained vacant for more than two months, the management
shall fill such vacancy on purely ad hoc basis by promoting the seniormost teacher.

(a) in the lecturer's grade in respect of a vacancy in the post of 'the Principal'.

(b) in the trained graduate's grade in respect of a vacancy in the post of the
Headmaster.

(2) Where the Management fails to promote the seniormost teacher under subSection (1) the inspector shall himself issue the order of promotion of such teacher and the teacher
concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may
be, from the date he joins such post in pursuance of such order of promotion.

(3) Where the teacher to whom the order of promotion is issued under sub-Section
(2) is unable to join the post of the Principal or the Headmaster, as the case may be, due to any act
or omission on the part of the management, such teacher may submit his joining report to the
Inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as
the case may be, from the date he submits the said report.

(4) Every appointment of an ad hoc Principal or Headmaster under sub-section (1)
or sub-section (2) shall cease to have effect from when the candidate recommended by the Board
joins the post."

11. This provision has been inserted so as to facilitate the smooth functioning of the
educational institutions. A division bench of this court in the case of Shamshul Zama v. District
Inspector of Schools, Chandauli reported in (2001)3 UPLBEC 2181, has already held that even for
ad hoc appointment under Section 18 of the Act of 1982 a person should possess requisite
qualifications for the post in question. In the said case the Division Bench also had the occasion to
consider the provisions of Intermediate Education Act 1921, Regulation and Rules made thereunder
and thereafter recorded its observations/findings.

12. In paragraph 11 the court after considering the dictionary meaning of the word
"Principal" opined that Principal of a college has a leading position and is superior to all other
members of the staff, being the Chief Executive Officer of the educational institution. All other
teachers look for guidance to him. He has to motivate the students to devote to their studies and to
5 All. Prem Chandra Vs State Of U.P. & Ors.

1069
build their character. He should be able to influence the other teachers and students of the
institution by his knowledge, wisdom and character. It will look incongruous that an institution is
headed by a person who does not possess even the prescribed minimum qualification, as, such a
person can never command respect of other teachers.

13. In the case of Ram Murti Singh (Supra) the provision which fell for consideration was
Rule 4 of the Removal of Difficulties Order 1981, but the observations made by the Supreme
Court apply on all its fours to the present fact situation also. Use of the word 'may' in Rule 4 of the
Removal of Difficulties Order 1981 and the use of the word 'shall in Section 18 of the Act of 1982'
does not in any manner persuade the court to hold that the observations in Ram Murti Singh's case
do not apply in the matter of appointment under Section 18 of the Act of 1982. There is nothing in
the provision to indicate such intent on the part of the legislature. The word 'shall' merely implies
that if even after two months of the vacancy having been notified the post is vacant, the same is
required to be filled up by promoting the seniormost teacher on ad hoc basis by the Committee of
Management and if it fails by the District Inspector of Schools, but it does not mean the seniormost
teacher in the Lecturer's Grade is incompetent or otherwise disentitled or unsuitable, even then he
has to be necessarily promoted. Such an understanding of the provision, apart from being
unreasonable, will be detrimental to the interest of the institution and against the spirit of the
judicial pronouncements referred hereinabove and hereinafter.

14. The Supreme Court in Ram Murti's case (supra) while considering the question of ad
hoc appointment as Principal observed that ordinarily the seniormost person may expect that he
would be appointed, but certainly not, if he is not competent. His relationship with teachers and
other employees are also to be seen. In the facts of the said case the Supreme Court observed that
the appellant before it though the seniormost was not found to be competent, his relationship with
teacher and other employees not being satisfactory and hence the Management feared that he would
not be able to draw the cooperation of the teachers and employees for working as a team. It
observed if this was found to be detrimental to the interests of the institution and he was not
promoted, though seniormost, no fault could be found with the order passed by the D.I.O.S.

15. This judgment was considered by a Division Bench of this court in the case of Rejendra
Prasad Shukla v. Ram Chandra Singh & ors. reported in 2005(23) LCD 753. In paragraph 19
thereof it was held that the settled position is that ordinarily the senior most teacher is to be given
appointment to officiate as Principal of the Institution. However, in case the authorities find an
incumbent to be incompetent and the authorities have reasons to believe that neither the senior most
incumbent has cordial relations with the staff nor will he be able to take the whole team to achieve
the goal of imparting proper education and further his appointment would be against the interest of
students and the institution, it would be open for the authorities to ignore the claim of such an
incumbent inspite of his seniority but then too, it should be done after recording reasons and
affording opportunity to such incumbent. In the said case, the Division Bench had considered
Section 18 of the Act of 1982 as amended in the year 2000.
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
16. A Full Bench of this court in the case of Radha Raizada v. Committee of Management
V.D.G.I.C. reported in (1994)3 UPLBEC 1551 in para 44 observed that the Management is
"ordinarily" under obligation to exercise the power of making officiating/ad hoc appointment as ad
hoc Principal/Head Master for benefit of such seniormost teacher. The use of the word 'ordinary'
does not rule out a situation which may require the appointment of another person, if, the
seniormost is incompetent or his appointment is not otherwise in the interest of the institution or
students, as, has been mentioned in the pronouncements discussed hereinabove.

17. As far as the Single Judge judgment of this court in Tribhuwan Mishra's case is
concerned, the provision of Section 18 of the Act of 1982 as existing in the year 1992 or prior to it
was considered, wherein also, similar provision for ad hoc appointment of teacher including
Principal of an educational institution existed and this court in order to minimise the possibility of
arbitrariness held that if the Management wishes to supersede the senior most teacher who is
qualified to be appointed Principal it can only do so if (1) there are grave charges against him
which are so serious that it will be wholly detrimental to the interests of the institution to appoint
him ad hoc Principal or (2) he suffers from such a serious physical disability that he cannot
properly perform the function of Principal. In either case the senior most teacher must be given a
show-cause notice by the management stating the charges against him (or the physical disability)
and stating that it is proposed to supersede him. The hearing to be given by the management need
not be a personal hearing, but copies of any material sought to be relied upon (whether contained in
the service book or elsewhere) must be supplied in advance so as to enable the teacher to give his
reply/explanation. After considering the teacher's reply the Management can supersede him, but
only by a reasoned order, and such reasons can be scrutinized by the High Court under Article 226
of the Constitution. In the event of anticipated vacancy process should start and the show-cause
notice referred above should be given two months prior to occurrence of such vacancy.

18. On a consideration of all the aforesaid pronouncements on the issues involved which
are similar to the one involved in the present case, the legal position that emerges is that though
ordinarily the seniormost teacher in the lecturer grade should be appointed as ad hoc Principal of an
intermediate college, but, in the event of the seniormost claimant being incompetent or otherwise
unsuitable or his appointment not being in the interest of the institution and the students, he can be
superseded, but, only for reasons to be recorded in writing, that too, after giving an opportunity of
hearing which need not be personal hearing, but in the nature of being confronted with the adverse
material against him alongwith with an opportunity to submit a representation, reply/explanation,
which shall be considered.

19. Observation made by the Division Bench in Shamshul Zama (supra) in para 11 thereof
though made in the context of a qualified or unqualified teacher are also relevant generally for the
purposes of ad hoc appointment on the post of Head of the institution.

20. In view of the aforesaid the observations contained in the judgment dated 3.5.2016
passed in the earlier writ petition No.9473(SS) of 2016 are hereby clarified to the effect that while
considering ad hoc appointment of the Principal of the respondent-Institution under Section 18 two
5 All. Prem Chandra Vs State Of U.P. & Ors.

1071
months after notification of the vacancy to Board, the legal position noted hereinabove shall be
kept in mind and decision shall be taken accordingly.

21. Considering the fact that the resolution dated 13.4.2016 was passed by the Committee
of Management prior to the judgment dated 3.5.2016, the same cannot be faulted on the ground of
non-adherence to the said judgment, but, certainly it does not stand judicial scrutiny when tested on
the anvil of the aforesaid settled legal position, as, if there was adverse material against the
petitioner, then he ought to have been confronted with it. Furthermore before passing the impugned
resolutions/orders, reply submitted by the petitioner to the notice issued to him has also not been
considered, therefore, the said resolutions/orders cannot be sustained and are hereby quashed,
however considering the assertion of the opposite parties that the petitioner was allegedly stopped
by the Board from examining the answer-sheets for five years on account of alleged tampering of
answer-sheets by him, though it is denied by the learned counsel for the petitioner, who asserts that
he has been regularly examining the answer-sheets, the court is of the view that the interest of the
institutions and ends of justice will be served if the existing arrangement on the post of the
Principal under which the opposite party no.8 is functioning is allowed to continue till a fresh
decision is taken as aforesaid. It is ordered accordingly. It is also made clear that though the
impugned resolution has been quashed, it shall be open for the Management to consider the
allegations and material referred therein while taking a fresh decision in the matter.

22. There are several allegations levelled against the petitioner by the opposite parties,
which are also denied by him, but the court is not inclined to enter into these factual controversies,
which shall be looked into by the concerned authority/Management in the light of the legal position
referred herein above.

23. At this stage Sri N.B. Singh appearing for the opposite party no.8 submits that
requisition for the post in question had already been sent to the Commission through the D.I.O.S.
which could not be brought to the knowledge of the court in the earlier proceedings and the
interview had also been held by the Selection Board for the post in question, though the result is
still awaited.

24. If it is so, then the Committee of Management shall not wait for a period of two months
nor will it send its requisition again, instead it shall take a fresh decision in the light of the
discussion made hereinabove within ten days from the date a certified copy of this order is
submitted.

25. Before parting, there is another aspect of the matter which needs to be dealt with. Even
after judgment of this court was brought to the notice of the D.I.O.S., he did not adhere to the same.
Once it came to his knowledge he could not have ignored it nor could he have acted in violation
thereof. Even if there was adverse material against the petitioner available with the opposite parties
and another view of the matter was possible, different from the one taken by this court, the course
open to him was to bring these facts to the notice of the court and either to seek a clarification of
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
 the judgment or its review, but he could not have just brushed it aside. In future he shall keep this
in mind and shall not repeat this audacity.

26. The writ petition is disposed of in the aforesaid terms.
----------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2016

BEFORE

 THE HON'BLE PANKAJ NAQVI, J.

Application U/s 482 No.- 13280 Of 2016

Aas Mohammad
 ...Applicant
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Ankit Agarwal

Counsel for the Opposite Parties:
Govt. Advocate

Criminal Procedure Code, 1973 - Ss. 293, 227, 228, 239 & 240 - Re-analysis of seized sample -
Stage of framing of charge.

No statutory or indefeasible right accrues to an accused to seek re-analysis of a seized sample either under
the Code of Criminal Procedure or under the Kerosene Control Order once the charge-sheet has been
submitted and the matter is pending for framing of charge. Grant of re-analysis depends upon the nature of
the seized commodity and the stage of the proceedings. Kerosene not being shown to be perishable or liable
to deterioration, refusal to permit re-analysis at the pre-trial stage is proper. (Paras 6, 8)

Essential Commodities Act, 1955 - Ss. 3 & 7 - Kerosene (PDS) - Seizure and analysis - Right
of defence.

The right of the accused to challenge the report of the Public Analyst is available at the stage of trial in terms
of S. 293 Cr.P.C. Absence of an express provision for re-analysis in the Control Order does not render the
procedure arbitrary or unfair. Re-analysis, if required, may be sought at an appropriate stage subject to
judicial discretion and proof of prejudice. (Paras 7, 8)

Criminal Trial - Discharge - Defence material - Scope.

Consideration of defence material at the stage of discharge is confined to documents of unimpeachable or
sterling quality sufficient to demolish the prosecution case at the threshold. The principle laid down in State of
Orissa v. Debendra Nath Padhi does not extend to collection of fresh evidence or re-analysis of seized samples
at the stage of framing of charge. Reliance placed on Sadhan Sahkari Samiti Ltd. held misplaced. (Paras 9-11)