# Smt. Archana Singh v. State of U.P. and others

- **Citation:** (2009) 2 ILRA 417
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-06-29
- **Case number:** Civil Misc. Writ Petition No. 59818 of 2007
- **Bench:** Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-archana-singh-v-state-of-u-p-and-others-41518
- **Pages:** 6

## Headnote

Constitution of India, Art. 226-Education
Service-Appointment
of
Officiating
Principal in recognized Inter Collegeafter
retirement
of
substantive
appointee-Senior most teacher refused
to accept the working as officiating
Principal-petitioner being at Serial No. 6
started working as officiating principalsignature attested-Subsequent action of
authorized controller and as of D.I.O.S.
appointing such lecturer as officiating
principal
considering
her
seniorityignoring
refusal
on
two
different
occasion-No
fresh
vacancy
causedearlier vacancy of 2000 still continuingheld-illegal.

Held: Para 13

In the present case, no fresh substantive
vacancy has arisen and the substantive
vacancy which had occurred on account
of the retirement of the regular Principal
in the year 2000 is still continuing. In
view of the Division Bench decision
rendered by this Court in Sundershan
Kumar (supra) it has to be held that
Sangeeta
Banerjee
cannot
work
as
Officiating Principal of the College since
she
had
on
earlier
two
occasions
declined to do so. The order dated 20th
November,
2007
passed
by
the
Authorised
Controller
and
the
consequential
order
dated
6th
December, 2007 passed by the DIOS,
therefore, cannot be sustained.
Case law discussed:
1995 (1) AWC 122; (2008) 2 UPLBEC 1159,
Special Appeal No. 959 of 2006 (Sundershan
Kumar Vs. State of U.P. & Ors.), (1999) 3
UPLBEC 2088, (2004) 1 UPLBEC 600,

## Text

2 All] Smt. Archana Singh V. State of U.P. and others
417
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.06.2009

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 59818 of 2007

Smt. Archana Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri M.M. Sahai

Counsel for the Respondents:
Sri S.K. Pandey
Sri R.C. Srivastava
Sri K.S. Kushwaha
S.C.

Constitution of India, Art. 226-Education
Service-Appointment
of
Officiating
Principal in recognized Inter Collegeafter
retirement
of
substantive
appointee-Senior most teacher refused
to accept the working as officiating
Principal-petitioner being at Serial No. 6
started working as officiating principalsignature attested-Subsequent action of
authorized controller and as of D.I.O.S.
appointing such lecturer as officiating
principal
considering
her
seniorityignoring
refusal
on
two
different
occasion-No
fresh
vacancy
causedearlier vacancy of 2000 still continuingheld-illegal.

Held: Para 13

In the present case, no fresh substantive
vacancy has arisen and the substantive
vacancy which had occurred on account
of the retirement of the regular Principal
in the year 2000 is still continuing. In
view of the Division Bench decision
rendered by this Court in Sundershan
Kumar (supra) it has to be held that
Sangeeta
Banerjee
cannot
work
as
Officiating Principal of the College since
she
had
on
earlier
two
occasions
declined to do so. The order dated 20th
November,
2007
passed
by
the
Authorised
Controller
and
the
consequential
order
dated
6th
December, 2007 passed by the DIOS,
therefore, cannot be sustained.
Case law discussed:
1995 (1) AWC 122; (2008) 2 UPLBEC 1159,
Special Appeal No. 959 of 2006 (Sundershan
Kumar Vs. State of U.P. & Ors.), (1999) 3
UPLBEC 2088, (2004) 1 UPLBEC 600,

(Delivered by Hon'ble Dilip Gupta, J.)

1. The petitioner, a Lecturer in "Sri
Agrasen Kanya Inter College, Varanasi"
(hereinafter referred to as the ''College'),
has sought the quashing of the order dated
20th November, 2007 passed by the
Authorised Controller of the College as
also the consequential order dated 6th
December, 2007 passed by the District
Inspector
of
Schools,
Varanasi
(hereinafter referred to as the ''DIOS')
whereby by the former order, a direction
has been given to Smt. Sangeeta Banerjee,
Lecturer in the College, to discharge
duties as Officiating Principal of the
College and by the latter her signatures
have been attested. The petitioner has also
sought a direction upon the respondents
not to disturb the working of the
petitioner as the Officiating Principal of
the College.

2. The regular Principal of the
College retired in the year 2000 after
attaining the age of superannuation. In the
absence of regular the Principal, Prem
Lata Sinha, a Lecturer in the College, was
appointed as the Officiating Principal of
the
College
but
as
disciplinary
proceedings were initiated against her by
the
Committee
of
Management,
respondent no.5 Sangeeta Banerjee was
given the charge of Officiating Principal
418 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
of the College by the order dated 20th
March, 2005. However, she sent a
communication dated 22nd March, 2006 to
the Manager of the College expressing her
inability
on
account
of
domestic
circumstances to take charge of the
Officiating Principal of the College.
Gayatri Singh was thereafter asked to take
charge of the Officiating Principal of the
College by the communication dated 22nd
March, 2006 and though she took charge
of
the
Officiating
Principal
but
subsequently expressed her inability to
continue as the Officiating Principal of
the College by the communication dated
20th May, 2006 in view of domestic
circumstances.
The
petitioner
was,
thereafter, given charge of the Officiating
Principal of the College by the order
dated 20th June, 2006. However, the
Manager of the College again gave the
charge of the Officiating Principal to
Sangeet Banerjee, but she again expressed
her inability to work as the Officiating
Principal by the communication dated
25th June, 2006. The petitioner was
thereafter asked to work as the Officiating
Principal and her signatures were also
attested by the DIOS by the order dated
24th July, 2006. On 20th November,
2007, however, the Authorised Controller
of the College, who had since been
appointed
in
the
College,
directed
Sangeeta Banerjee to work as the
Officiating Principal of the College in
view of the application submitted by
Sangeeta Banerjee and the fact that
Sangeeta Banerjee was the senior most
Lecturer in the College. On the basis of
the said order, the DIOS by the order
dated 6th December, 2007 attested the
signatures of Sangeeta Banerjee as the
Officiating Principal of the College.
These two orders have been impugned in
the present petition.
3. I have heard Sri M.M. Sahai,
learned counsel for the petitioner, Sri S.K.
Pandey, learned counsel appearing for
Sangeeta
Banerjee
and
the
learned
Standing
Counsel
appearing
for
respondent Nos. 1, 2 and 3.

4. Learned counsel for the petitioner
submitted that once Sangeeta Banerjee
had declined to officiate as the Principal
of the College, she could not subsequently
be given charge of the Officiating
Principal, particularly when the same
substantive vacancy is continuing and in
support of this contention he has placed
reliance upon the judgements of this
Court in Satya Vir Singh Vs. District
Inspector of Schools, Bulandshahr &
Ors., 1995 (1) AWC 122; Ashok Kumar
Jain Vs. State of U.P. & Ors. reported in
(2008) 2 UPLBEC 1159 and upon the
Division Bench judgment of this Court in
Special
Appeal
No.
959
of
2006
(Sundershan Kumar Vs. State of U.P. &
Ors.) decided on 15th September, 2006.

5. Learned counsel appearing for
Sangeeta
Banerjee
and
the
learned
Standing Counsel, however, contended
that mere refusal by Sangeeta Banerjee on
two occasions to work as the Officiating
Principal of the College cannot be treated
as refusal for all times to come and as the
senior most Lecturer, she was entitled to
officiate as the Principal of the College. In
support of this contention, reliance has
been placed upon the decisions rendered
in Committee of Management, Jai Kisan
Inter College, Lalpur Imiliadheesh,
Bedipur, Basti & Ors. Vs. District
Inspector of Schools, Basti & Ors.,
(1999) 3 UPLBEC 2088 and Committee
of Management, Jai Kisan Vidya Mandir
College, Saharanpur & Ors. Vs. State of
U.P. & Ors. (2004) 1 UPLBEC 600.
2 All] Smt. Archana Singh V. State of U.P. and others
419
6. I have carefully considered the
submissions advanced by the learned
counsel for the parties.

7. It is not in dispute that twice the
Committee of Management had asked
Sangeeta Banerjee, respondent no.5, to
work as the Officiating Principal of the
College but on each occasion, she
declined to work in view of her domestic
problems. It is, in such circumstances,
that the petitioner was asked to officiate
as the Principal of the College but
subsequently
when
the
Authorised
Controller was appointed, an order was
passed by him on 20th November, 2007
that Sangeeta Banerjee shall work as the
Officiating Principal of the College and
the DIOS subsequently attested her
signatures. The question, therefore, that
arises for consideration is whether the
Authorised Controller was justified in
passing the order that Sangeeta Banerjee
shall officiate as the Principal of the
College
instead
of
the
petitioner,
particularly when the same substantive
vacancy is continuing.

8. In Satya Vir Singh (Supra), on
which reliance has been placed by the
learned counsel for the petitioner, a
learned Judge of this Court observed as
follows:-

"Once a senior-most teacher is
permitted to function as Officiating
Principal of an institution but he either
declines to accept the post or after
accepting
the
post
submits
his
resignation, he cannot claim that right to
function as Officiating Principal. In
Special Appeal No. 141 of 1993, Smt.
Sudesh Kakkar v. Regional Inspectress of
Girls Schools, Ist Region, Meerut and
others, a Division Bench of this Court
held that once a senior-most teacher
declines offer to function as Officiating
Principal she cannot claim the right
subsequently
to
be
appointed
as
Officiating Principal of the Institution."

9. This decision was, however,
distinguished by a learned Judge of this
Court in Committee of Management, Jai
Kisan Inter College, Basti & Ors. (supra)
and it was observed :-

"Learned counsel for the petitioner
has relied on a decision of this Court in
Satya Vir Singh v. D.I.O.S., Bulandshahr,
1995 (1) A.W.C. 122 and he has
emphasised on paragraphs 11 and 12 of
this decision in which it has been held
that once the senior most teacher has
declined to accept the post he cannot
claim the right to function as officiating
Principal. In my opinion this decision is
distinguishable. In the present case the
respondent No.2 had declined to accept
the post of Principal in the year 1981.
Satya Vir Singh's case cannot be
interpreted to mean that once a person
has declined to officiate as ad hoc
Principal and later on the vacancy again
occurs he cannot then claim to be the
officiating Principal merely because he
had earlier declined. In my opinion,
declining of the post is only for that
particular period of time when the
vacancy had arisen. It cannot be treated
to amount to permanently declining the
post for all times to come. Whenever the
vacancy may again occur in future, the
senior most teacher may again be
considered for the post of Principal
according to law."

10. In Committee of Management,
Jai
Kisan
Vidya
Mandir
College,
Saharanpur (supra), a learned Judge of
420 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
this Court, after considering the decisions
of this Court in Satyavir Singh (supra)
and Committee of Management, Jai Kisan
Inter College, Basti (supra), observed that
the principles laid down in Committee of
Management, Jai Kisan Inter College
(supra) were applicable to the facts of the
case
and
accordingly
observed
as
follows:-

"Having heard the learned Counsel
for the parties, I find that on earlier three
occasions the officiating Principal was to
be appointed in the leave vacancy. The
respondent no.3 had declined to hold the
post. However, after the leave vacancy
had come to an end and the Principal had
joined, the question of officiation cannot
be said to have continued. Declining to
hold the post of officiating Principal on
earlier three occasions cannot be held to
disentitle a person from being considered
on the post of the officiating Principal
when
a
substantive
vacancy
has
arisen..................."

11. The aforesaid decisions in the
case of Committee of Management, Jai
Kisan Vidya Mandir College, Saharanpur
(supra) as also the Division Bench
judgment of this Court in Smt. Sudesh
Kakkar Vs. Regional Inspectress of Girls
Schools, Ist Region, Meerut & others
rendered in Special Appeal No. 141 of
1993 were considered by a Division
Bench of this Court in Sundershan
Kumar (supra) and it was held that if a
teacher refuses to officiate as the Principal
of the College then, if the same
substantive vacancy continues, he cannot
subsequently turn around and claim
appointment as Officiating Principal. The
relevant observations are as follow:-

''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 adhoc 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
2 All] Smt. Archana Singh V. State of U.P. and others
421
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)................"

12. It is in the light of the
observations made in the aforesaid
decision rendered in Sundershan Kumar
(supra) that a learned Judge of this Court
in Ashok Kumar Jain (supra) observed as
follows:-

"The substantive vacancy occurred
on 30.6.1998 on the retirement of Ramesh
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 till 30.6.2007. The same
post continued to remain vacant and no
substantive appointment on the said
vacancy was made. The mere fact that an
adhoc
arrangement
of
officiating
Principal was made earlier on the said
post which came to an end would not
mean that a fresh substantive vacancy had
again been created. The substantive
vacancy remained the same and only an
officiating arrangement had come to an
end. This view was also held in the
aforesaid Division Bench judgment of
Sundershan Kumar (supra), which is
squarely applicable to the present facts
and the circumstances of the case. The
judgment cited by the learned counsel for
the petitioner stands impliedly overruled
in view of the decision of the Division
Bench."

13. In the present case, no fresh
substantive vacancy has arisen and the
substantive vacancy which had occurred
on account of the retirement of the regular
Principal in the year 2000 is still
continuing. In view of the Division Bench
decision rendered by this Court in
Sundershan Kumar (supra) it has to be
held that Sangeeta Banerjee cannot work
as Officiating Principal of the College
since she had on earlier two occasions
declined to do so. The order dated 20th
November,
2007
passed
by
the
Authorised
Controller
and
the
consequential order dated 6th December,
2007 passed by the DIOS, therefore,
cannot be sustained.

14. The writ petition, therefore,
succeeds and is allowed. The orders dated
20th November, 2007 and 6th December,
2007 are quashed. The petitioner shall be
permitted to work as Officiating Principal
of the College in terms of the earlier order
passed by the Management of the
College.
---------
422 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.06.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Bail Application 1199 of
2009

Khursheed and another ...Applicants
(In Jail)
 Versus
State of U.P.

...Opposite party

Counsel for the Applicants:
Sri Pankaj Sharma
Sri Rajul Bhargava
Sri S.K. Dwivedi

Counsel for the Opposite Party:
A.G.A.

Code of Criminal Procedure Section 439Second Bail Application-Maintainabilityomission
of
the
facts
and
ground
available at the time of First Bail
Application-Second Bail Application not
maintainable except on having some
additional new grounds-in Second Bail
Application except period of jail no other
facts pleaded-held-not maintainable.

Held: Para 12

Having
given
my
thoughtful
consideration to the submissions made
by the learned AGA, I entirely agree with
his
contention
that
second
bail
application moved on behalf of the
applicants is not legally maintainable, as
no fresh ground has been shown in the
2nd bail application or at the time of
arguments. I have already mentioned
herein-above the submissions made by
the learned counsel for the applicants.
Except the ground of period of detention
in jail, all other grounds, as mentioned
above, were available to the applicantsaccused at the time of disposal of the
first bail application. Therefore, in view
of the law laid down by the Division
Bench of this Court in Satya Pal Vs. State
of U.P. (supra) and keeping in view the
observations made by Hon'ble Apex
Court in Kalyan Chand Sarkar Vs. Rajesh
Ranjan @ Pappu Yadav (Supra), in my
opinion, second bail application on those
very
facts
and
grounds
that
were
available to the applicants when the first
bail application was moved and rejected,
cannot be allowed to be advanced.
Case law discussed:
1998(37) ACC 287, 1989(26) ACC 503(SC),
1978 Cr. L. J. 651 (SC), 1987(24) ACC
425(SC), 2005(51) ACC 727 (SC), 2008 (63)
ACC 115.

(Delivered by Hon'ble Vijay Kumar Verma, J.)

"Whether the second bail application
on the grounds, which were available at
the time of dismissal of first bail
application is maintainable?", is the main
point that falls for consideration in this
case, in which second bail has been
moved on behalf of the applicants named
above in case crime no. 670 of 2008
under section 419, 420, 467, 468 IPC of
P.S. Govardhan, District Mathura.

2. The first bail application bearing
no. 30292 of 2008 was rejected on merit
by another Bench of this Court vide order
dated 11.11.2008.

3. Shorn of unnecessary details, the
case of the prosecution, as appearing from
the first information report lodged on
19.09.2008 by the complainant Gurwant
Sharma s/o Bharu Lal, resident of Village
Bhadbhadia,
Tehsil
and
District
Neemamb (Madhya Pradesh), is that the
accused Pappu @ Khursheed (applicant
no. 1 herein) and Zakir s/o Shamshuddin
defrauded and cheated the complainant on
11.08.2008 and obtained Rs.10,00,000/-
(Rupees ten lac) from him and gave two