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Ram Asrey Misra Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc.Writ No. 3625 of 1975
Judge
Reported inAIR1976All223
ActsConstitution of India - Article 226; Uttar Pradesh State Universities Act, 1973 - Sections 31
AppellantRam Asrey Misra
RespondentThe State of U.P. and ors.
Appellant AdvocateG.N. Verma and ;T.P. Asthana, Advs.
Respondent AdvocateK.D. Pandey, Adv. and ;Standing Counsel
DispositionPetition allowed
Excerpt:
.....the records. these documents have been signed by the president as well as other members of the committee of management. 8. the respondents alleged that the aforesaid relevant resolutions as well as the letter dated 15-2-1975 were forged by the petitioner. 9. i have carefully considered these affidavits and the contention raised by the learned counsel for the respondents but i do not find any good ground to hold that the petitioner has forged these document. 5 of the meeting of 7-7-1974 as well as item no. this fact clearly belies the suggestion made on behalf of the respondents that the petitioner had manipulated the proceedings of 7-7-1974 and 13-2-1975. by no stretch of imagination the petitioner could have inserted item no. if that be so the respondents' contention that other..........226 of the constitution for the quashing of the order dated 7th march, 1975, appointing akhilesh chandra upadhya as principal of raja shri krishna dutta degree college, jaunpur.2. raja shri krishna dutta degree college, conducts b.a., b.sc. and b.ed. classes. the college was previously affiliated to gorakhpur university. sri akhilesh chandra upadhya, respondent no. 4, was its permanent principal, he took one year's leave with effect from 2nd october, 1972, and later on he got hisring that period he joined as principal of goverdhan dass binani degree college, mirzapur, which was also affiliated to the gorakhpur university. during his absence the committee of management of the raja shri krishna dutt degree college, jaunpur (hereinafter referred to as the jaunpur college) invited.....
Judgment:
ORDER

K.N. Singh, J.

1. This is a petition under Article 226 of the Constitution for the quashing of the order dated 7th March, 1975, appointing Akhilesh Chandra Upadhya as Principal of Raja Shri Krishna Dutta Degree College, Jaunpur.

2. Raja Shri Krishna Dutta Degree College, conducts B.A., B.Sc. and B.Ed. classes. The College was previously affiliated to Gorakhpur University. Sri Akhilesh Chandra Upadhya, respondent No. 4, was its permanent principal, he took one year's leave with effect from 2nd October, 1972, and later on he got hisring that period he joined as principal of Goverdhan Dass Binani Degree College, Mirzapur, which was also affiliated to the Gorakhpur University. During his absence the Committee of Management of the Raja Shri Krishna Dutt Degree College, Jaunpur (hereinafter referred to as the Jaunpur College) invited applications from qualified and experienced persons for appointment to the post of Principal in leave vacancy which was likely to be made permanent. Ram Asrey Misra, the petitioner, who was a teacher in the Jaunpur College applied for the same.

A Selection Committee as required by the U. P. State Universities Act, 1973, which had come into force by that time was constituted and met on 29th November, 1973, to hold the selection. It selected the petitioner. The Managing Committee accepted the recommendations of the Selection Committee and appointed the petitioner as principal of the Jaunpur College on probation and referred the matter to the Vice-Chancellor of the Gorakhpur University for his approval. The Registrar of the University informed the petitioner and the Managing Committee that the Vice-Chancellor had accorded approved to the petitioner's appointment as Principal of the College under Section 31(3-A) of State Universities Act, 1973.

According to the petitioner Akhilesh Chandra Upadhya, respondent 4, was confirmed and made permanent on the post of Principal of the Goverdhan Dass Binani Degree College, Mirzapur. Consequently a clear vacancy arose in the office of the Principal of the Jaunpur College. The Managing Committee by its resolution dated 13-2-1975 made the petitioner permanent on the post of Principal and a letter to that effect was issued to him by the President of the Jaunpur College on 15-2-1975. Later on some differences arose between the petitioner and the President of the College as a result of which the President of the Jaunpur College purported to cancel the leave of Akhilesh Chandra Upadhya and allowed him to join as Principal of the Jaunpur College. The petitioner was not allowed to function as Principal. Aggrieved the petitioner filed this petition challenging the order of the President of the Jaunpur College, dated 7-3-1975 cancelling the leave of Akhilesh Chandra Upadhya and directing him to join as principal of the College.

3. The Gorakhpur University Act, 1956 was repealed by the U. P. Ordinance No. 1 of 1973 which was promulgated on 18-6-1973. The Ordinance made provision for the University of Gorakhpur and the Degree Colleges affiliated to it. It further made provisions for appointment of teachers. The Ordinance was converted into the U. P. State Universities Act 10 of 1973 which was enforced on 3-9-1973. The Ordinance and the Act repealed the Gorakhpur University Act, but Section 50 of the Act laid down that the First Statutes of the Gorakhpur University Act, 1956 made by the State Government shall continue to remain in force for so long as the First Statutes are not made under the 1973 Act. No fresh statutes as contemplated by Section 50 of the Act have been framed by the State Government. Consequently the first Statutes made under the Gorakhpur University Act, 1956, still continue to remain in force.

Section 28 (2) of the Gorakhpur University Act, 1956 laid down that every teacher shall be appointed in the first instance on probation for such period as may be prescribed and he shall not be confirmed if he is a teacher of the University except by the order of the executive council and if he is a teacher of an affiliated College except by the order of management. Section 2 (1) defines 'prescribe' which means prescribed by the statutes. Thus under Section 28 of the Gorakhpur University Act, a teacher was required to be appointed in the first instance on probation for such period as prescribed by the Statutes.

Statute 9 (a) of Chapter XIII of the First Statutes of the Gorakhpur University Act, 1956 prescribed period of probation in respect of teachers appointed by the Executive Council in the University. But so far as appointment of teachers in the affiliated Colleges was concerned, no period of probation was prescribed. After the enforcement of the Ordinance and the State Universities Act the period of probation was prescribed in the Act itself.

Section 31 (2) of the U. P. State Universities Act lays down that the appointment of every teacher or principal in the first instance be on probation for one year which may be extended for a period not exceeding one year. This provision applies equally to the appointment of teachers in the University as well as in an affiliated College, Thus under the provisions of the State Universities Act, a teacher is required to be appointed initially on probation for a period of one year. That period can be extended only for another period of one year. Thereafter the probationary period cannot be extended. If the services of a teacher who is appointed on probation are not terminated during or on the expiry of the period of probation, he acquires the status of a permanant teacher or principal. On the expiry of period of probation his services cannot be terminated treating him to be probationer or temporary in nature. The services of a permanent teacher after the enforcement of the Act can be terminated in accordance with the provisions contained in the Act and the Statutes framed thereunder.

4. Learned counsel for the petitioner urged that Sri Akhilesh Chandra Upadhya was permanent principal of Goverdhan Dass Binani Degree College, Mirzapur, hereinafter referred to as the Mirzapur College, and further since the petitioner had also been appointed permanently on the post of Principal at the Jaunpur College, the President of the Jaunpur College had no authority in law to cancel the leave of Akhilesh Chandra Upadhya or to direct him to join as Principal at the Jaunpur College. Akhilesh Chandra Upadhya, has however, asserted that he was never made permanent at the Mirzapur College and that he continued to remain on leave and his appointment at Mirzapur College was temporary in nature.

The petitioner has filed a copy of the minutes of the meeting of the Managing Committee of the Mirzapur College held on 17-11-1972, Annex. 5, to the rejoinder affidavit which clearly showed that the Managing Committee of the said college accepted the recommendations of the Selection Committee and thereupon it approved his appointment as principal on probation for a period of one year. The Assistant Registrar of the Gorakhpur University by his letter dated 19-1-1973 (Annexure 6 to the Rejoinder Affidavit) informed the Secretary of the Managing Committee of the Mirzapur College that the Vice-Chancellor had approved the appointment of Akhilesh Chandra Upadhya as Principal of the Mirzapur College under Section 28 (4) of the Gorakhpur University Act, 1956.

The petitioner has also filed the minutes of the meeting of the Selection Committee constituted for the purpose of appointment of Principal of Mirzapur College (Annexure 1 to the supplementary rejoinder affidavit). The petitioner's assertion that Akhilesh Chandra Upadhya was selected by a duly constituted Selection Committee in accordance with the Gorakhpur University Act and the Statutes framed thereunder and thereafter he was appointed on probation in a clear vacancy on the post of Principal of the Mirzapur College is fully supported by these documents. The petitioner has filed an extract from the service record of the respondent No. 4, Akhilesh Chandra Upadhya, as maintained in the office of the Deputy Director of Education (Finance) Higher Education, as Annexure 2 to the supplementary rejoinder affidavit which shows that the petitioner was designated as a permanent principal of the Mirzapur College. This document again shows that Akhilesh Chanrda Upadhya was a permanent principal of the Mirzapur College.

5. Learned counsel for the respondents contended that the petitioner has not filed any copy pf the order of the Managing Committee of the Mirzapur College to support his contention that Akhilesh Chandra Upadhya was made permanent on the post of principal. It is further urged that in the absence of any order making Akhilesh Chandra Upadhya permanent, his status on the post of Principal at Mirzapur College continued to be probationer and he continued to remain on leave. As such he was entitled to get his leave cancelled and join the Jaunpur College where he held his lien on the post of Principal. I find no substance in this contention.

As already noted Sri Akhilesh Chandra Upadhya was appointed on probation for a period of one year on 17-11-1972. One year's period of probation expired on 17-11-1973. By that date U. P. State Universities Act 1973, had come into force, with the result the period of probation of Akilesh Chandra Upadhya could be extended for another period of one year. The respondents have, however, not placed any resolution or order of the Managing Committee showing that the period of probation of Akhilesh Chandra Upadhya was extended. In the absence of any such resolution or order Akhilesh Chandra Upadhya was deemed to be confirmed on the post of Principal at Mirzapur College by operation of law. But even assuming that the period of probation was extended for a period of one year more, that period also expired on 17-11-1974. Thus in every case Akhilesh Chandra Upadhya became a permanent principal of the Mirzapur College under Section 31 (3) of the State Universities Act and thereafter he ceased to have any lien on the post of Principal in the Jaunpur College.

It is well settled principle that a person cannot have right to hold two posts simultaneously in a permanent capacity. Once Akilesh Chandra Upadhya became permanent on the post of Principal at Mirzapur College he ceased to have any right to hold the post of Principal at the Jaunpur College. Since Akhilesh Chandra Upadhya became permanent at the Mirzapur College there was no question of cancellation of his leave on 7-3-1975 by the President of the Jaunpur College, as he had no legal right to join as Principal of the Jaunpur College. I therefore, hold that the President acted without any authority in law in cancelling the leave of Akhilesh Chandra Upadhya or directing him to join as Principal of the Jaunpur College.

6. It is then urged on behalf of the respondents that the petitioner was never made permanent Principal of the Jaunpur College. The resolution of the Managing Committee dated 13-2-1975 was forged by the petitioner. Raja Yadvendra Dutt Dube, the President of the Jaunpur College has filed his own affidavit refuting the claim of the petitioner that he was made permanent on the post of principal of the College. Ram Lakhan Misra, a member of the Managing Committee has also filed affidavit asserting that the resolution dated 13-2-1975 confirming the petitioner on the post of Principal was forged and manipulated by the petitioner who had the proceedings book in his custody. It is urged that since there are disputed questions of fact this court should not interfere and the petitioner should not be granted any relief.

Normally disputed questions of fact are not investigated or adjudicated upon by this Court while exercising powers under Article 226 of the Constitution but the mere existence of disputed questions of fact does not take away the jurisdiction of this Court in granting relief to the petitioner. In a case where the Court is satisfied that the facts are disputed by the respondents merely to create a ground for the dismissal of the writ petition on the ground of disputed questions of fact, it is the duty of the Court to reject the contention and to investigate the disputed facts and record its findings if the particular facts of the case so required in the interest of justice.

No doubt in the instant case respondents have raised disputed questions of fact, but I am not inclined to dismiss the petition merely on that account, The material on record is sufficient to show that the respondents have miserably failed to show that the petitioner has committed any forgery or manipulated the records. Instead the respondents and specially the President of the Jaunpur College has raised the disputed question of fact challenging the genuineness of the documents signed by him in an unjustified manner as would be clear from the reasons which would follow later in this judgment.

7. The petitioner has filed a copy of the minutes of the Managing Committee held on 7-7-1974 under the Presidentship of Yadvencbra Dutt Dube, Raja of Jaunpur (Annexure 4 to the petition). The Managing Committee adopted a resolution affirming the order of the President cancelling Akhilesh Chandra Upadhya's leave on the ground that he had become permanent Principal of Mirzapur College. On 20-10-1974 another meeting of the Managing Committee was held under the Presidentship of Raja of Jaunpur. Photostat copies of the minutes of the Committee of Management dated 7-7-1974 and 20-10-1974 have been filed by the petitioner as Annexures to the rejoinder affidavit. Item No. 4 of the minutes of 20-10-1974 shows that the Committee of Management adopted a unanimous resolution to the effect that on the cancellation of leave of Akhilesh Chandra Upadhya, a clear vacancy had arisen in the office of the Principal. So steps should be taken for filling that vacancy in accordance with the provisions of the State Universities Act at an early elate.

The Managing Committee at its meeting held on 13-2-1975, a copy of the minutes of which has been filed as Annexure '5' to the petition and photostat copy of the same has been filed as Annexure to the rejoinder affidavit, by its resolution No. 3-D adopted a resolution for making the petitioner permanent on the post of Principal. On 15-2-1975, Yadvendra Dutt Dube, President of the Committee of Management issued a letter to the petitioner (Annexure '6' to the petition, photostat copy of the same has been annexed along with the rejoinder affidavit also) informing him that the Committee of Management had made the petitioner permanent on the post of Principal of Jaunpur College. These documents show that after Akhilesh Chandra Upadhya was confirmed and made permanent on the post of Principal of the Mirzapur College, his leave was cancelled by the President of the Managing Committee of Jaunpur College.

That order was affirmed by the Committee of Management at its meeting held on 7-7-1974. Thereafter the Committee of Management by its resolution dated 20-10-1974, decided to take steps for filling the permanent vacancy in the post of Principal which had occurred due to the cancellation of leave of Akhilesh Chandra Upadhya. The Committee of Management at its meeting held on 13-2-1975 adopted the resolution making the petitioner permanent Principal and in pursuance of that resolution the President by his letter dated 15-2-1975 informed the petitioner that he was made permanent on the post of Principal. These documents have been signed by the President as well as other members of the Committee of Management.

8. The respondents alleged that the aforesaid relevant resolutions as well as the letter dated 15-2-1975 were forged by the petitioner. In support of this allegation it is further asserted that the proceedings books were kept by the Principal and he used to record the minutes of the meeting of the Committee of Management. He added these relevant resolutions in the proceedings and got signatures of the President surreptitiously. In his affidavit Raja Yadvendra Dutt Dube has stated that the petitioner has forged the proceedings and he is keeping the original record with him and if the original records are produced the forgery would be detected. He has categorically stated in paragraph 23 of his affidavit that the letter dated 15-2-1975 (Annexure 6) was never issued to the petitioner in his knowledge. He has further asserted that he used to sign several papers occasionally as submitted by the petitioner who was officiating Principal and if the petitioner to strengthen his case manipulated to get his signatures on that letter it was forged by him and the petitioner is not entitled to any right.

In paragraph 25 of his affidavit he has further asserted that the proceedings book is with the petitioner and he has forged and manipulated resolutions dated 7-7-1974 and added Item No. 5 at the end of the proceedings. He has further asserted that the agenda issued for the meeting of 13-2-1975 did not contain any item with regard to the appointment of the Principal and the resolution No. 3-D was forged by the petitioner. To the similar effect are the affidavits of Akhilesh Chandra Upadhya, Ram Lakhan Misra, Sita Earn Misra, Bankey Behari Mahant and Bitthal Nath Kapoor, members of the Committee of Management.

9. I have carefully considered these affidavits and the contention raised by the learned counsel for the respondents but I do not find any good ground to hold that the petitioner has forged these document. The minutes of the proceedings of the relevant meetings of the Committee of Management were no doubt recorded by the petitioner but those minutes have been signed at the end by the president, namely, the Raja of Jaunpur. He has not denied the gunineness of his signatures which is present at the end of the proceedings. Further he has not denied his signatures on the letter dated 15-2-1975 which communicated the decision of the committee of Management to the petitioner informing him that he was made permanent on the post of Principal.

In the circumstances the signatures of the President of the College, namely, Raja of Jaunpur, which are present on these documents are genuine as the same have not been disputed by any of the respondents. The contention that the relevant resolutions have been added by the petitioner later on at the end of the proceedings does not again inspire confidence. A perusal of the photostat copy of the minutes of the meeting of 7-7-1974 and 20-10-1974 shows that the minutes of the meeting of 7-7-1974 commenced on page 8 of the proceedings book and it ended on page 9.

Item No. 5 of the said proceedings is recorded on page 9 and immediately thereafter the President, Raja of Jaunpur, has signed the same. By this item the leave of Akhilesh Chandra Upadhya was cancelled. On that very page viz., page 9 of the proceedings book the minutes of the meeting dated 20-10-1974 are recorded which is again signed by Raja Saheb of Jaunpur. This shows that the petitioner could not have forged Item No. 5 of the minutes of 7th July, 1974. Further the argument that Item No. 5 of the meeting of 7-7-1974 as well as Item No. 3-D of the meeting dated 13-2-1975 are recorded at the end of the minutes which shows that the petitioner added the same later on and obtained the signatures of the President is again without any merit. The circumstance that the relevant resolutions of the meeting dated 7-7-1974 and 13-2-1975 were the last items in the proceedings does not support the respondents' contention.

It is significant to note that at the meeting held on 20-10-1974 the Committee of Management adopted unanimous resolution that immediate steps be taken to fill up the vacancy caused by the cancellation of leave of Akhilesh Chandra Upadhya in accordance with the provisions of the State Universities Act. This resolution is recorded at serial No. 4 which is in the middle of the items transacted on that date. The Committee of Management at its meeting dated 20-10-1974 transacted 7 different items of business. Item No. 4 records the resolution of the Committee of Management for filling the post of principal and that is in the middle of the proceedings. This fact clearly belies the suggestion made on behalf of the respondents that the petitioner had manipulated the proceedings of 7-7-1974 and 13-2-1975. By no stretch of imagination the petitioner could have inserted Item No. 4 in the minutes of the proceedings of the Committee of Management held on 20-10-1974.

The resolution adopted by the Committee of Management at Item No. 4 at its meeting held on 20-10-1974 is consistent with the petitioner's contention whereas it is wholly inconsistent with the respondent's contention. The respondents' contention that leave of Akhilenh Chandra Upadhya was never cancelled and that petitioner was never appointed on the post of permanent principal is wholly inconsistent with the resolution of the Committee of Management adopted ,at Item No. 4 at its meeting held on 20-10-1974. On the other hand that resolution is consistent with the petitioner's contention. In none of the affidavits filed by the respondents including that of Raja Saheb of Jaunpur there is any allegation that Item No. 4 of the minutes of the meeting dated 20-10-1974 was manufactured or forged by the petitioner. In the circumstances it must be held that Item No. 4 of the meeting dated 20-10-1974 was correctly recorded which bears the signatures of the President of the Committee of Management. If that be so the respondents' contention that other relevant resolutions were forged is without any substance and wholly unreliable.

10. Raja of Jaunpur is an educated person and I am not prepared to believe his statement that (sic) letter dated 15-2-1975 without looking into them or without verifying the contents thereof. Moreover, in his affidavit Raja of Jaunpur has not indicated as to when the petitioner obtained his signatures on these documents. If the petitioner manufactured these proceedings after the dispute arose between him and the Committee of Management, he could not obtain the signatures of the president but if he had obtained the signatures of the Raja of Jaunpur before the dispute arose and there could be no reason for the petitioner to manufacture these proceedings as admittedly the relations between the petitioner and Raja of Jaunpur and the Committee of Management were not strained prior to March, 1975.

11. The originals of these documents have not been produced before me by the respondents to show that relevant resolutions and the letter dated 15-2-1975 was manufactured by the petitioner. The petitioner has also not produced the same. He has asserted that the meeting of the committee of management always took place in the kothi of Raja of Jaunpur and he has kept two almirahs of the College at his residence wherein he keeps all the important registers and documents including the proceedings book of the Committee of Management. He has asserted that the relevant proceedings book is in the custody of Raja of Jaunpur and he has deliberately withheld the same.

On the other hand the Raja of Jaunpur and other respondents have asserted that the petitioner used to record the proceedings and he has withheld the same in his custody so that the truth may not be found out. The petitioner's allegation that the papers relating to the Committee of Management including the proceedings book were always kept by the President in his own custody at his residence finds support from the inspection report of the panel of Inspectors appointed by the University of Gorakhpur. The Committee made an inspection of the Jaunpur College and submitted its report to the Vice-Chancellor on 27-7-1973 (Annex. 2 to the rejoinder affidavit). In that report it was stated that at the time of the inspection no papers relating to the Committee of Management were available for inspection because all the papers relating to the Committee of Management were kept in the custody of Raja Yadvendra Dutt Dube, the President of the College. This report clearly shows that the President used to keep the proceedings book with him.

Further if the proceedings book was with the petitioner he could have easily produced the same as that would have supported his case because the Raja of Jaunpur has not denied his signatures on those documents. It appears that the Raja of Jaunpur has himself withheld these documents so that the petitioner may not be able to prove his case. He further raised the plea that the original documents are not available because the same are in the petitioner's custody. Having regard to the facts and the circumstances of the case I am not inclined to accept the respondents suggestion that the petitioner is withholding these documents in his custody.

12. In view of the above discussion I am clearly of the opinion that the petitioner was appointed Principal after his selection by a duly constituted Selection Committee. His appointment was approved by the Vice Chancellor. Thereafter the leave of Akhilesh Chandra Upadhya was cancelled by the Committee of Management at its meeting held on 7-7-1974 as he had been made permanent on the post of Principal at Mirzapur College. I further hold that the proceedings dated 7-7-1974, 20-10-1974 and 13-2-1975 are not forged and the letter dated 15-2-1975 was 'issued by the President to the petitioner. These documents clearly show that the petitioner was made permanent on the post of Principal under a valid resolution of the Committee of Management. In the circumstances the President had no jurisdiction to allow Akhilesh Chandra Upadhya to take over as Principal of the College and to interfere with the petitioner's functioning as Principal of the College.

13. In the result I allow the Writ petition and quash the orders of the President of the Committee of Management of Raja Shri Krishna Dutt Degree College, Jaunpur, dated 7-3-1975 and 13-3-1975. The petitioner is entitled to continue in the office of the Principal and the respondent No. 4 is not entitled to function as Principal of the Jaunpur College. The petitioner is entitled to his costs.


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