correctness of the judgment passed in Special Appeal no.1454 of 2006 dated 27.11.2006 may be submitted by filling the special appeal and getting a reference made, is permissible as per the law laid down by the full bench in case of Rama Pratap Singh and others Vs State of U.P. and others 1995 (1) ACJ 200 (FB).

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

                               I N D E X

                                    IN

    SPECIAL    APPEAL     NO.                       OF 2009

  (Under Chapter VIII Rule 5 of High Court Rules, 1952)

                                                          (DISTRICT – ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.

                            Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - -  Opposite parties/ Respondents

Sl.no.	Particulars.	Dates.	Ann.	page
	List of dates and Events.	--	-
	Memo of Appeal (Under Chapter VIII Rule 5 of High Court Rules, 1952)	--	-
	Certified copy of the order passed by Hon’ble Single Judge in Civil Misc. Writ Petition No. 65694of 2009.	5.12.2009	-
	Type copy of the order passed by Hon’ble Single Judge in Civil Misc. Writ Petition No. 65694 of 2009	5.12.2009	-
	Affidavit of Service in Memo of Appeal.	--	-
	Form- 18	--	-
	Stay Application (Under Section 151 of the C.P.C.)	--	-
	Affidavit in support of Stay Application.
	Copy of  order passed in Writ Petition No. 65692 of 2009 on 5.12.2009	5.12.2009	1
	Copy of the Order passed in writ petition No. 63808 of 2009	5.12.2009	2
	Copy of Writ Petition No. 65694 of 2009 filed on24.11.2009	24.11. 09	3
	Copy of the Writ petition No. 65692 of 2009	24.11. 09	4
	Copy of the Writ petition No. 63808 of 2009 filed 0n 21.11.2009	21.11. 09	5
	Copy of the Writ petition No. 12133 of 1997	9.4. 1997	6
	Copy of Interim order in Writ petition No. 12133 of 1997	11.4.1997	7
	Affidavit of Service in Stay Application.
	Form-18
	Vakalatnama.

Dt- 7^th Dec. ,2009                   (YOGESH KUMAR SAXENA)

                                                        Advocate

                                            Counsel for the Appellants

                                          Chamber no.139, High Court,

                                                             Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

                    LIST OF DATES AND EVENT

IN

SPECIAL    APPEAL     NO.                       OF 2009

  (Under Chapter VIII Rule 5 of High Court Rules, 1952)

                                                                  (DISTRICT – ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - - - - Appellant /Petitioner                           

                                           Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow. And Others---------------------Opposite Parties/Respondents.    

S,N.	DATE	PARTICULRS OF THE CASE
1	1962	The institution of the  committee of Management namely Sri Gandhi Adarsh Intermediate College, Labedi, Etawah of respondent no. 6 is an intermediate College having grant in aid of the government and the provisions of U.P.  Intermediate Act, 1921, Act No.  5 of 1982 and U.P. High School and Intermediate college (payment of Salary) Act, 1971 are applicable to the petitioner‘s No. 1 Institution.
2	19.08.1973	The petitioner was initially appointed on 30.06.1971 as untrained Assistant Teacher. Thereafter the vacancy on the post of the lecturer in Hindi was created on account of the retirement of Sri Krishna Pratap Shukla after due advertisement in the news paper and on the said post the petitioner was given appointment as the Lecturer in Hindi on 19.08.1973. The petitioner was kept under probation for a period of one year. The approval to the aforesaid appointment of the Lecturer in Hindi of the petitioner was given by the District Inspector of School, Etawah vide letter no.T.E.-Lay-1/979/73-74 dated 19.08.1973.
3	28.11.1974	The District Inspector of School, Etawah changed the aforesaid order of his approval on the post of the Lecturer in Hindi in the substantive capacity of the appointment to the ad hoc appointment. The petitioner as Lecturer  and nine other L.T. grade teachers filed the writ petition no.7387 of 1973, which was allowed by this Hon’ble Court by the Judgment dated 28.11.1974 and as such the approval granted by the District Inspector of School, Etawah remained the approval as the Lecturer in Hindi in substantive capacity. The Special Appeal was filed against the aforesaid Judgment dated 28.11.1974 passed in writ petition no.7387 of 1973 which was dismissed by this Hon’ble Court with cost. the petitioner continued to discharge his duties as the Lecturer in Hindi and thereafter he became the senior most lecturers in the seniority list published on 01.07.1996, 01.07.1997, 01.07.1998 and 01.07.1999 respectively.
4	01.07.1999	On account of the retirement of Sri Chandra Shekhar Tripathi from the post of the Principal, the petitioner being the senior most Lecturer furnished all such documents to the District Inspector of School, Etawah for seeking approval from U.P. Madhyamik Shiksha Sewa Chayan Board, Allahabad (respondent no.2). The Service Book of the petitioner was also forwarded for taking approval to the aforesaid promotion on the post of the Principal of the institution. the appreciation certificate was given to the petitioner in due discharge of his duties and nothing has been found adverse against the conduct of the petitioner by anyone of the higher authority in the institution till date.
5	03.01.2001	The date of birth of the petitioner is 22.09.1947, which is shown in his service book. The petitioner has been duly approved on the post of the Principal by the District Inspector of School, Etawah vide his letter dated 03.01.2001. The petitioner is drawing the salary of Principal form the date of the aforesaid approval and he has been given the revise pay scale on the basis of the prescribed proforma filled up by the Principal.
6	24. 10. 2007	The matter pertaining to the seniority has been declined by the joint director without being having any power to decide the appeal in regulation 3 of chapter III of the Intermediate Education Act, 1921 and  in view of the pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7 & order dated  24. 10. 2007 by the Joint Directors of Educations, where in respondent no.7 is claiming his seniority w.e. f. 1. 7. 1996 on account of the  promotion of respondent no.7 as lecturer in Sanskrit in the institution .
7	22.1.2008	The respondent no. 4 has passed an order in contradiction to the order passed by the same authority on  24.10.2007 by then Joint Directors of Educations on 22.1.2008 stating therein that the respondent no. 8 is senior and the seniority determine on the length of services of lecturers in the institution on 03. 09. 2007 having the seniority assigned in favour of the respondent no.7 working as lecturer in Sanskrit w.e.f. 1. 7. 1996 after retirement of the incumbent posted on the said post as Mr. Suresh Chandra Tiwari ( now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7,  has been set aside by the order dated 22.1.2008 passed by the respondent no. 4.
8	15.10.2008	By the order of the Director of Education passed on 15.10.2008, it was provided that as per the provision of section 18(4)(5) of Chapter IV of the Act no.5 of 1982, it is provided that the senior most lecturer is entitled for promotion on the post of the principal in the vacancy cost in the institution. The similar prepositions have been laid down in Regulation 2(3) of Chapter II under the Intermediate Education Act, wherein the senior most teachers may be given appointment on the post of the Principal if the vacancy remained in existence for more than 30 days in the institution. It has been stated that in case of the said promotion, the incumbent shall only be entitled to draw his salary on the post of his working in the institution and he shall not be entitled to draw the salary of the higher post of the principal in the said institution.
9	20.6.2009	The respondent no. 6 has taken the decision on the representation of the petitioner filed on 20.6.2009 to provide the extension of his services up to 30.6. 2010 , as the petitioner has already faced the interview  before Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad in the year of 2001 and his selection as regular principal is awaited on account of the fact that the other senior most lecturer after the seniority of petitioner namely Shri Kishan Yadav has retired from service in 2007.
10	October, 2009	The District Inspector of School, Etawah has given the salary of the month of October, 2009 to the petitioner duly sanctioned by his account officer and as such , it was anticipated that the petitioner will be allowed to continue in the extension period  up to the end of the session.
11	16.11.2009	Surprisingly without even considering the proprietary, competency of District Inspector of School, Etawah in directing the respondent no. 8 to appoint respondent no. 6 and got his signature attested as officiating principal without any jurisdiction, simply  on account of the order passed on 22.1.2008 by the respondent no. 4  in contravention of the earlier orders passed by the same authority on 24.10.2007 and the pending proceeding of this Hon’ble Court in pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7, the impugned order has been passed on 16.11.2009.
12	16.11.2009	The institution of the education are the cradle for children for enshrined their inherent competence to abide with the norms of discipline and these charitable services rendered by the teachers is not the play ground of the political affiliation and caste prejudices, but for the development of the personalities of the children. Thus if the individual without even being taken into his consideration, as to the factor of his being a teacher and student relationship and allure the IX class student running at a deplorable age of dilemma with him during the first probation period of such teacher by himself  and later on started embezzlement of the funds and misappropriate the property of the institution, how does the management and the principal and the other senior lecturers may allow such individual to serve as officiating principal. Thus the present writ petition is filed by  the Petitioner as he is adversely and individually affected by the impugned order passed on 16.11,2009.
13	25.11.2009	The present Writ petition is filed to challenge the order dated 16.11.2009 on the ground of jurisdiction, proprietary, competency of such order appointing officiating principal and attesting the signature of respondent no. 8 without any order or resolution of appointing authority. The case of the petitioner is pertaining to his selection on the post of the Principal of the institution in the officiating capacity and he continued to draw his salary on the said post and thereafter the revise pay scale has also been given to the petitioner on the post of the Principal in the institution. The petitioner is no more the Lecturer in Hindi, nor can be reverted back to the said post even after completion of the age of superannuation on 21st September 2009. His service book has been shown in order to substantiate the right of the petitioner on the post of the Principal and all the post retirement benefit including gratuity, provident fund shall be amenable to the petitioner on the post of the Principal and not on the post of the Lecturer in Hindi in the institution. The impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009 may be set aside. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and  the extension sought for by the management up to 30. 6. 2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary, respondent No.3 may declare the result of interview faced  vide  interview letter dated 16.10.2001 on 07.11.2001.
14	5.12.2009	The present Special Appeal has been filed in compliance of the observation made Hon'ble A.P. Sahi, J in Judgement dated 5.12.2009 in Civil Misc. Writ Petition No. 65694 of 2009 Surendra Prasad  Agnihotri VERSUS The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow by observing  that it is not within the realm of  the Hon’ble judge sitting singly to comment upon the correctness of the decision rendered in special appeal no.1454  of  2006 in re Hari Om Tat Sath Brahma Shukla Vs State of U.P. and others decided on 27.11.2006  (A copy thereof is Annexure 14 of the writ petition no.65694 of 2009). However the Hon’ble single Judge has directed that the papers in respect of other two Writ Petition No. 65692 of 2009 and Writ petition No.  63808 of 2009 along with Writ Petition No. 12133 of 1997 be lay before the Hon’ble Chief Justice / Hon’ble Senior Justice
15	7.12.2009	The present Special Appeal has been filed in compliance of the observation made Hon'ble A.P. Sahi, J in Judgement dated 5.12.2009 in Civil Misc. Writ Petition No. 65694 of 2009 Surendra Prasad  Agnihotri VERSUS The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow by observing  that it is not within the realm of  the Hon’ble judge sitting singly to comment upon the correctness of the decision rendered in special appeal no.1454  of  2006 in re Hari Om Tat Sath Brahma Shukla Vs State of U.P. and others decided on 27.11.2006  (A copy thereof is Annexure 14 of the writ petition no.65694 of 2009). However the Hon’ble single Judge has directed that the papers in respect of other two Writ Petition No. 65692 of 2009 and Writ petition No.  63808 of 2009 along with Writ Petition No. 12133 of 1997 be lay before the Hon’ble Chief Justice / Hon’ble Senior Justice may kindly be heard and decided along with the present Special appeal in exercise of Chapter v Rule 6 of Allahabad High Court Rules, 1952.
16	7.12.2009	The submission made in the writ petition no.65694 of 2009 in relation to the correctness of the judgment passed in Special Appeal no.1454 of 2006 dated 27.11.2006 may be submitted by filling the special appeal and getting a reference made, is permissible as per the law laid down by the full bench in case of Rama Pratap  Singh and others Vs State of U.P. and others 1995 (1) ACJ 200 (FB).

                                                                         

Dt-  7^th    Dec,2009                   (YOGESH KUMAR SAXENA)

                                                        Advocate

                                            Counsel for the Appellants

                                          Chamber no.139, High Court,

                                                   Allahabad.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

SPECIAL  APPEAL  NO.               OF 2009

      (UNDER CHAPTER XIII RULE 5 OF THE ALLAHABAD HIGH COURT RULES, 1952)

(DISTRICT-ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - - - - Appellant /Petitioner.

VERSUS

1.     The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow.

2.     Director of Education ( secondary) , U.P. , Allahabad

3.     The Uttar Pradesh Madhyamik Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary.

4.     The Regional Joint Director of Education, Kanpur Region, Kanpur.

5.     The District Inspector of School, Etawah.

6.     The Committee of Management, Sri Gandhi Inter College, Labadi, Etawah through its Manager Ishwar Chandra Tiwari S/o Shri Ram Nath Tiwari, Village and post Labedi, Etawah .

7.     Satyendra Kumar Shukla Son of late Sri Krishna Kumar Shukla  , Senior Most Lecturer in Sanskrit, Sri Gandhi Adarsh Inter College,  Labadi, Etawah

8.      Harindra Prasad Son of Sri Shiv Nath Ram , Lecturer in psychology, Sri Gandhi Inter College, Labedi, Etawah              

                                                - - - -  Opposite parties/ Respondents

         That the present Special Appeal has been filed in compliance of the observation made Hon'ble A.P. Sahi, J in Judgement dated 5.12.2009 in Civil Misc. Writ Petition No. 65694 of 2009, Surendra Prasad  Agnihotri VERSUS The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow by observing  that it is not within the realm of  the Hon’ble judge sitting singly to comment upon the correctness of the decision rendered in special appeal no.1454  of  2006 in re Hari Om Tat Sath Brahma Shukla Vs State of U.P. and others decided on 27.11.2006  (A copy thereof is Annexure 14 of the writ petition no.65694 of 2009)

                                              Between

 Surendra Prasad  Agnihotri                                …….Petitioner

                                           And

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and 7 others                                ………Respondents                        The submission made in the writ petition no.65694 of 2009 in relation to the correctness of the judgment passed in Special Appeal no.1454 of 2006 dated 27.11.2006 may be submitted by filling the special appeal and getting a reference made, is permissible as per the law laid down by the full bench in case of Rama Pratap Singh and others Vs State of U.P. and others 1995 (1) ACJ 200 (FB).

                        The other two writ petition bearing writ petition no.65692 of 2009 and writ petition no.63808 of 2009 directed to be placed before the Hon’ble the Chief Justice /Senior Judge may also be decided along with the present special appeal as the common question of law and the factual controversy pertaining to the propriety competence and jurisdiction in passing the impugned order dated 16.11.2009 by the District Inspector of School, Etawah are mainly involved in all the three writ petitions for which the record of the writ petition no.12133 of 1997 may kindly be summoned by the Hon’ble Court pertaining to the question of determination of inter seniority between respondent no. 7 and 8.

                     The relief sought is to set-a-side the judgment passed by the learned single judge on 05.12.2009 only to the extent of offending portion having an observation pertaining to the denial of the right of the petitioner to challenge the order dated 16.11.2009 passed by the District Inspector of School even if the is passed without jurisdiction. The present Special appeal may be allowed by this Hon’ble Court.

               The relief south in  the writ petition no. 65694 of 2009 is for quashing the impugned orders passed on 04.09.2009  by the respondent No.2 and the order dated 16.11.2009 passed by the respondent no. 5 may be  granted to the petitioner.

                  This Hon’ble Court further may be pleased to direct the respondents not to interfere in the functioning of the petitioner/Appellant as officiating principal and the petitioner may be permitted to complete this academic session year up to  30.06.2010  as the officiating principal . 

                   The respondent No. 2,4, and 5 may provide  extension sought by the management up to 30. 6. 2010 and further direct  Uttar Pradesh Madhyamik Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary., respondent No.3 to declare the result of interview  faced by the petitioner  on 07.11.2001 in furtherance of the interview letter dated 16.10.2001 as prayed in the present writ petition.

The valuation of the writ petition ………Rs.100/-

The valuation of the present Appeal …….Rs.100/-

Court fees paid …………………………Rs.100/-

                 The present Special Appeal is being filed on the following amongst other grounds:-

                                                G R O U N D S

a.     Because, a distinction is drawn between lack of jurisdiction and lack of error in exercise of jurisdiction;  lack of jurisdiction strikes at the very root of exercise rendering the order therein a nullity  and thus attesting the signature of respondent no.8, without having any resolution passed in his favour for appointment as officiating principal by the District  Inspector of School himself, in passing the impugned order dated 16.11.2009 is   without jurisdiction and a nullity  within the eye of law. (Budhia Swain Vs Gopinath Deb (1999) 4 SCC Page 396 Para 8 & 9)

b.     Because, the District Inspector of School despite being fully aware  regarding the existence of the inquiry, in case of the embezzlement and  appointing Assistant District Inspector of School vide order dated 28.03.2008 (filed as Annexure No.11), in respect of realization of Scout Guide Fund (filed as Annexure No.10) by the class teacher Harendra Prasad, the respondent no.8 and also regarding eloping a girl namely Deepa D/o Shri Sardev,  studing in 11^th Class in the petitioners  institution having co-education during the first probation period, resulting in extension of probation period for Two years with reprimand  by the resolution of the committee of the management (filed as Annexure No.9) despite said disqualification being adhered with respondent no.8, attesting the signature of such person as officiating principal in the same institution by the District Inspector of School is a fraud on power which is not vested with the drawing and disbursement authority conferred with the District Inspector of School in passing the impugned order. (Mahanta Prasad Singh Vs State of U.P. 2002 Vol-II UPLBEC Page 1316)

c.      Because, the District Inspector of School is only the approving authority and empowered to attest the signature of the lecturer recommended by the committee of management as officiating principal and the said authority in no manner can ascertain the interest of the institution in appointing the officiating principal having proficiency, competency and  eligibility of the lecturer  to function as officiating principal and as such the impugned order passed on 16.11.2009 is in itself a malafide and arbitrary order passed by the said authority. (Collector/District Magistrate Vs Raja Ram Jaiswal (1985) ALJ page 887).

d.      Because, the Hon’ble Supreme Court while construing the interpretation, the term ‘a person in-charge of the post of Head Master/Principal  also works  and discharges the duties and functions of the post of which he has taken charge as officiating principal’ and as such acquire an equal amount of experience in the respective assignment.   If the rule expressly did not make any differentiation between the person working as a confirm holder of substantive post of an in-charge or officiating holder of the post, Nonetheless both the holder of the post perform same duty, then any rider imposed upon regulation 21 of chapter 3 of the Intermediate Education Act will tantamount rider on legislative power (State of M.P. Vs Luxmi Shankar Mishra Para 9 & 10).

e.       Because, it is well settled principal of law that the exercise of the power of appointment and promotion is only vested with the appointing authority in an institution managed by committee of management having grant in aid for which the power of disbursement of the salary is delegated by the state government to the District Inspector of School under section 3 of the payment of Salary Act, 1971 (Act no.24 of 1971) and since the District Inspector of School is not the appointing authority, the said authority was having no power to appoint the respondent no.8 as officiating principal.

f.       Because, once the interpretation is taken in the light of the decision in case of R.C. Gupta Dr. Vs State of U.P. 2002 (1) UPLBEC 767,  in relations to the officiating principal of degree college are applied. In case of  Hariomtatsat Bramha Shukla Vs State of U.P. in special appeal No.1454 of 2006,  in relation to the intermediate Education Act, 1921, the officiating principal will revert back as lecturer but in spite being the senior most lecturer duly entitled to continue up to the end of the session, shall be subjected to the supersession by the junior lecturer who remained under subordination of such officiating principal resulting in transgression of the discretionary power by misutilisation of such junior lecturer.

g.      Because,  in case of the reversion of a teacher from the post of the principal to the lecturer, the procedure is prescribed under section 16-G of the Intermediate Education Act and the provision of regulation 31 to 46 of chapter III of the Intermediate Education Act are required to be followed and as such no other liberal interpretation  except for continuance of the officiating principal    the end of the session, except in case of the denial or refusal by the same officiating principal two months prior from the time of attending the age of superannuation, could have been derivated from regulation 21 of Chapter III of Intermediate Education Act.

h.      Because, unless  and until a selected candidate from Uttar Pradesh Madhyamic Shiksha Seva Chayan Board, respondent no.3 may not  recommended for substantive appointment, in which the petitioner him self had participated on 07.11.2001 in the interview on the post of the principal for the said appointment, the officiating principal may not be compel to revert back to his substantive post and the junior lecturer is appointed as officiating principal and as such this preposition of law is contrary to the statutory protection granted to the officiating principal who teaches the students of the intermediate classes like the other lecturers in the institutions.

i.        Because, fairness in action must at least be perceptible in passing the impugned order dated 04.08.2009 by the Director of Education, the respondent no.2, stating therein that the order passed on 15.10.2008 is withdrawn on account of the decision in special appeal no.1454 of 2006, in spite the fact that the same authority is empowered to interpret ate the provision of sub section 4 and 5 of Section 18 in Chapter 4 of Act No.5 of 1982 and further having the further interpretation of the statutory provision of Section 3 and 16 G regulation 21 which was inserted on 08.08.1987 in chapter 3 of the intermediate Education act for which the Director of Education may not be empowered to withdraw the said Statutory provision and as such the order dated 04.08.2009 passed by the respondent no.2 is in itself null and void.

j.        Because, the paper pertaining to the regularization and extension of the period of the services to be rendered by the petitioner till the end of Academic Session or till the declaration of the result by the board in pursuance of the interview conducted by the respondent no.3 of the petitioner on 07.11.2001 but the writ petition has been dismissed without considering the prayer No. II & III in writ petition no.65694 of 2009 filed by the petitioner.

k.     Because, it was incumbent to decide all the three writ petitions filed together one by one bearing writ petition no.63808 of 2009 filed by Satyendra Kumar Shukla the senior most lecturer claiming his right to officiate as the principal in the institution and the other one bearing writ petition no.65692 of 2009 filed by the committee of management challenging the impugned order dated 16.11.2009 and 11.11.2009 passed in furtherance of the order of the respondent no.3 and passed on 22.01.2008 as well as order dated 04.08.2009 but the learned single judge declined to decide all the three writ petition by a common judgement  and released two other writ petition without being taken as fresh writ petition in spite observing the incompetency of the respondent 8 for appointment in officiating capacity.

l.        Because, the record of the other two writ petition referred to above may also be summoned for deciding all the three writ petitions by a common judgment in the present special appeal which is filed in order to protect the interest of the institution from an incompetent lecturer facing the inquiry in the matter of embezzlement and other misconduct pertaining to the moral turpitude as defined in regulation 32 of the Chapter 3 of the Intermediate Education Act.

m.   Because, the matter pertaining to the entitlement of the senior most lecturer with effect from 01.07.1996 has been taken note by  passing an  interim order on 11.04.1997  in writ petition no.12133 of 1997 filed by Satyendra Kumar Shukla the senior most lecturer who sought for the inherent disqualification amenable to the teacher on account of  his conviction in the offence under  section 302 of IPC on account of the dictum in re Deputy Director of Collegiate Education (Admn) Vs S Nagoor Mira AIR 1995 SC 1364 and since the aforesaid convicted teacher is already retired, the writ petition no.12133 of 1997 filed by the respondent no.7 may also be decided for  fixation of his seniority from his date of working on the said post.

n.      Because, the Hon’ble Supreme Court in case of 1977 (8) SCC Page 59 has held that the promotional chance can not be nullified by any alternative delay which either may be lethargic or with ulterior motive and If the senior not appointed, they will regain their seniority even though the junior was earlier promoted as the seniority should be reckoned from the date of accrual of vacancy.

o.     Because, Hon’ble Supreme Court in whirlpool Corporation Ltd. Case reported in 1998 Vol-VIII SCC Page 1 has laid down that if the order impugned  is based upon the inherent lack of jurisdiction and having in its lethal radiation hitting to the root of the statutory protection granted to the petitioner under the legislative competence, the said order of the District Inspector of Schools passed on 16.11.2009 should have been out rightly set-a-side and the observation of the learned single judge that although the order of the  District Inspector of Schools is without jurisdiction,  the allowing of the writ petition may result in issuance of a futile writ is not a correct approach of the learned single judge.

p.     Because the learned single judge although has recorded respondent no. 8 Harendra Prasad may not  be suitable or he may not be entitled to join as officiating principal in view of the fact that the resolution of the committee of management remain in favour of Satyendra Kumar Shula imp leaded as respondent no.7 for which the petitioner may not challenge the order impugned passed without jurisdiction by the District Inspector of Schools is not a correct approach in the matter and in such circumstances all the three writ petitions may be heard and decided by a conjoint judgment as the perpetuity of the illegality may not be eroded the very foundation on the basis of which the interest of the educational institution may jeopardize and as such the judgment passed by the learned single judge on 05.12.2009  is liable to be set-a-side.

q.     Because, the petitioner was initially appointed on 30.06.1971 as untrained Assistant Teacher and subsequently on the post of the lecturer in Hindi on 19.08.1973. The aforesaid appointment of the Lecturer in Hindi of the petitioner was given by the District Inspector of School, Etawah vide letter no.T.E.-Lay-1/979/73-74 dated 19.08.1973. The Service Book of the petitioner was also forwarded for taking approval to the aforesaid promotion on the post of the Principal of the institution. The appreciation certificate was given to the petitioner in due discharge of his duties and nothing has been found adverse against the conduct of the petitioner by anyone of the higher authority in the institution till date. The petitioner is drawing the salary of Principal form the date of the aforesaid approval and he has been given the revise pay scale on the basis of the prescribed proforma filled up by the Principal.

r.      Because, the Division Bench of this Hon’ble Court in case of committee of Management ,Jagdish Saran Rajvansi,  Kanya Inter College Vs. Joint Director of Education)reported in 2000 Vol.  1 ESC page 645 has laid down that when a teacher gets the benefit of the academic session after attaining age of superannuation, the said benefit may not be denied to the Principal as per the Regulation 21 of Chapter III of the Intermediate Education Act. A different preposition of law has been advanced in case of R.C. Gupta (Dr.) Vs. State of U.P. and others 2002 Vol-1 UPLBEC 767.

s.      Because, by the order of the Director of Education passed on 15.10.2008, it was provided that as per the provision of section 18(4)(5) of Chapter IV of the Act no.5 of 1982, it is provided that the senior most lecturer is entitled for promotion on the post of the principal in the vacancy cost in the institution. The similar prepositions have been laid down in Regulation 2(3) of Chapter II under the Intermediate Education Act, wherein the senior most teachers may be given appointment on the post of the Principal if the vacancy remained in existence for more than 30 days in the institution. It has been stated that in case of the said promotion, the incumbent shall only be entitled to draw his salary on the post of his working in the institution and he shall not be entitled to draw the salary of the higher post of the principal in the said institution.

t.       Because, by another order dated 04.08.2009 the Director of Education Madhyamik Uttar Pradesh has withdrawn the aforesaid Government order in furtherance of the Judgment passed in Special Appeal No.1454 of 2006 decided on 27.11.2006 by the Division Bench of this Hon’ble Court.

u.     Because, the District Inspector of School, Etawah has given the salary of the month of October, 2009 to the petitioner duly sanctioned by his account officer and as such , it was anticipated that the petitioner will be allowed to continue in the extension period  up to the end of the session.

v.     Because, the respondent no. 4 has passed an order in contradiction to the order passed by the same authority on 24.10.2007 by then Joint Directors of Educations on 22.1.2008 stating therein that the respondent no. 8 is senior and the seniority determine on the length of services of lecturers in the institution on 03. 09. 2007 having the seniority assigned in favour of the respondent no.7 working as lecturer in Sanskrit w.e.f. 1. 7. 1996 after retirement of the incumbent posted on the said post as Mr. Suresh Chandra Tiwari ( now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7,  the incumbent posted on the said post as Mr. Suresh Chandra Tiwari ( now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7.

w.   Because, in case of Mahant pratap Singh Versus D.I.O.S. UPLBEC 2002 (2) 1316 , it has been laid down that if the management on account of the allegation of moral turpitude, embezzlement and misappropriation of funds did not consider fit to appoint some one as the principal in the institution as he may lack of the other teachers cooperation and his appointment on such post of principal is detrimental to the institution, it may appoint appropriate lecturer awaiting the joining of the candidate selected by the Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad.

x.      Because,  without even considering the proprietary, competency of District Inspector of School, Etawah in directing the respondent no. 8 to appoint respondent no. 8 and got his signature attested as officiating principal without any jurisdiction, simply  on account of the order passed on 22.1.2008 by the respondent no. 4  in contravention of the earlier orders passed by the same authority on 24.10.2007 and the pending proceeding of this Hon’ble Court in pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7, the impugned order has been passed on 16.11.2009.

y.     Because, the Hon’ble Apex Court In M.S. Mudhol  (Dr.) Versus S.D. Helegkar (1993) 3 SCC 591has held that after having  worked for more than a decade , it will not be seen that the incumbent was qualification at the time of appointment, as the individual has competed his entire tenure without any complaint. Thus the order passed the respondent no. 2 on 4.9.2009 is not based upon the correct proposition as the order passed on 16.11.2009 shall be deemed to be the reversion from the post of principal to lecturer without following the procedure prescribed for imposing punishment as per the requirement of section 16-G (3) (a) of Intermediate Act and passed in violation of Regulation 31 up to 46 of Chapter III of Intermediate Act.

z.      Because, the impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009 may be set aside. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and  the extension sought for by the management up to 30. 6. 2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary, respondent No.3 may declare the result of interview faced  vide  interview letter dated 16.10.2001 on 07.11.2001.

 Dt-  7^th    December,2009                   (YOGESH KUMAR SAXENA)

                                                                                Advocate

                                                         Counsel for the Appellants

                                                        Chamber no.139, High Court,

                                                                   Allahabad.

       

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

         Civil Misc. Stay Application No.                  of 2009

 (under Section 151 C.P.C. read with chapter IX Rule 10 Of Rules of the Court, 1952)

                                    In

               SPECIAL    APPEAL     NO.                       OF 2009

  (Under Chapter VIII Rule 5 of High Court Rules, 1952)                                                      

   (DISTRICT – ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah.- - - - Appellant /Petitioner

                               Versus

1.     The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow.

2.     Director of Education ( secondary) , U.P. , Allahabad

3.     The Uttar Pradesh Madhyamik Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary.

4.     The Regional Joint Director of Education, Kanpur Region, Kanpur.

5.     The District Inspector of School, Etawah.

6.     The Committee of Management, Sri Gandhi Inter College, Labadi, Etawah through its Manager Ishwar Chandra Tiwari S/o Shri Ram Nath Tiwari, Village and post Labedi, Etawah .

7.     Satyendra Kumar Shukla Son of late Sri Krishna Kumar Shukla  , Senior Most Lecturer in Sanskrit, Sri Gandhi Adarsh Inter College,  Labadi, Etawah

8.      Harindra Prasad Son of Sri Shiv Nath Ram , Lecturer in psychology, Sri Gandhi Inter College, Labedi, Etawah       

                                                                   - - - -  Opposite parties/ Respondents

To

    The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.

    The humble writ petition of the above-named petitioner most respectfully showeth as under: -

1.     That the facts and circumstances of the case are given in the accompanied writ petition, the individual without even being taken into his consideration, as to the factor of his being a teacher and student relationship and allure the IX class student running at a deplorable age of dilemma with him during the first probation period of such teacher by himself  and later on started embezzlement of the funds and misappropriate the property of the institution, how does the management and the principal and the other senior lecturers may allow such individual to serve as officiating principal. Thus the present writ petition is filed by the Petitioner as he is adversely and individually affected by the impugned order passed on 16.11,2009. The writ petition may kindly be accepted and the impugned order passed by the respondent no. 4 and 5 on 16.11.2009 may kindly be stayed.    

2.      That under these circumstances, it is expedient in the interest of justice that the impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009 may be set aside. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and  the extension sought for by the management up to 30. 6. 2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary., respondent No.3 may declare the result of interview faced  vide  interview letter dated 16.10.2001 on 07.11.2001.                                           

                                                PRAYER

                  It is , therefore, most respectively prayed that this Hon’ble Court may graciously be pleased to  stay  the impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and  the extension sought for by the management up to 30.6.2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary., respondent No.3 may declare the result of interview faced  vide  interview letter dated 16.10.2001 on 07.11.2001.

Dt-  7^th    Dec.2009                   (YOGESH KUMAR SAXENA)

                                                                        Advocate

                                                Counsel for the Appellants

                                                 Chamber no.139, High Court,

                                                                 Allahabad.

COPY OF IMPUGNED ORDER AND JUDGEMENT

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

        

CIVIL MISC. WRIT PETITION No.                OF 2009

(Under Article 226 of the Constitution of India)

(DISTRICT-ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labadi, Etawah.- - - -Petitioner.

VERSUS

1.     The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow.

2.     Director of Education ( secondary) , U.P. , Allahabad

3.     The Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary.

4.     The Regional Joint Director of Education, Kanpur Region, Kanpur.

5.     The District Inspector of School, Etawah.

6.  The Committee of Management, Sri Gandhi Inter College, Labadi, Etawah through its Manager Ishwar Chandra Tiwari S/o Shri Ram Nath Tiwari, Village and post Labedi, Etawah .

7.     Satyendra Kumar Shukla Son of late sri Krishna Kumar Shukla  , Senior Most Lecturer in Sanskrit, Sri Gandhi Adarsh Inter College,  Labadi, Etawah

8.      Harindra Prasad Son of Sri Shiv Nath Ram , Lecturer in psychology, Sri Gandhi Inter College, Labedi, Etawah - - - - Respondents

1

Court No.18

Civil Misc. Writ Petition No.65694 of 2009

Surendra Prasad Agnihotri Vs. The State of U.P. and others

***

Hon'ble A.P. Sahi, J

Sri Y.K. Saxena, learned counsel for the petitioner, has raised 7

fold contentions. Firstly, that the order is without jurisdiction as the District Inspector of Schools had no jurisdiction to render his opinion while attesting the signature of officiating Principal under the provisions of U.P. Act No.24 of 1971 Act; secondly, the District Inspector of Schools could not have proceeded to virtually induct a person as an officiating Principal without there being any resolution of the Committee of Management; thirdly, in view of the decision in the case of Ram Lal Prasad Vs. State of U.P. and others, 1987 AWC 1314, and other decisions relied upon, there is no occasion to eliminate the petitioner from the office of officiating Principal; fourthly, the impugned orderamounts to reverting the petitioner which is contrary to the legalprinciples as laid down in the case of Dr. M.S. Mudhol & another Vs. Shri S.D. Halegkar and others, JT 1993 (4) SC 143; fifthly, the choice of the District Inspector of Schools in relation to respondent No.8 Harindra Prasad is absolutely unwarranted as the said respondent is an unsuitable candidate and the Committee of Management has never recommended him for being appointed as such; sixthly, unless and until a selected candidate arrives from the Board, there is no occasion to bring about this transformation as this would result in arbitrariness and a junior person would be allowed to act as Head of the institution; and finally that the petitioner has to be regularized for which the information has been tendered in response to the letter sent by the District Inspector of Schools dated 28.7.2007, a copy whereof has been appended as Annexure-15 to the writ petition. It is urged that the petitioner's services have been recommended to be extended by the Committee of Management. The prayer is to quash the impugned order and restore the status of the petitioner as officiating Principal of the institution.

2

Sri Saxena apart from the aforesaid submissions, prayed that a

common judgment be delivered along with Writ Petition Nos. 65692 of 2009 and 63808 of 2009. These 2 writ petitions have been filed by the Committee of Management and one by the senior most Lecturer Sri Satendra Kumar, who is claiming his right to officiate as Principal of the institution.

I have considered all these submissions and it is not necessary to

call upon any of the respondents to answer the aforesaid submissions at this stage keeping in view the fact that the petitioner cannot succeed on any of the counts which arguments have been advanced before this Court.

The first issue is about the jurisdiction of the authority to pass the order. For this, in my opinion, the first issue before this Court is as to what is the legal right of the petitioner to claim such a relief. The petitioner was working as officiating Principal of the institution. It is not disputed by Sri Saxena that the date of birth of the petitioner is 27.9.1947. In this view of the matter, the petitioner has already attained the age of superannuation on 21.9.2009. Having become of 62years of age, the petitioner, therefore, as per Regulation 21 of Chapter III has retired from service.

The only issue which now remains to be considered in relation to

the claim of the petitioner is as to whether he can continue as officiating Principal or not. This issue has already been decided by a Division Bench of this Court in the case of Hari Om Tatsat Brahma Shukla Vs. State of U.P. and others, Special Appeal No.1454 of 2006 decided on 27.11.2006, a copy whereof is Annexure-14 to the writ petition. Sri Saxena contends that the said judgment proceeds on an erroneous assumption of law inasmuch as the earlier decision which was rendered in the case of R.C. Gupta (Dr.) Vs. State of U.P. and others, (2002) 1

UPLBEC 767, does not govern the issue at all and, therefore, the

Division Bench decision in the case of Hari Om Tatsant Brahma Shukla.

3

(supra) has been wrongly decided.

Having considered the aforesaid submissions, it is more than clear that there is a direct Division Bench answering the arguments advanced on behalf of the petitioner. The question as to whether the said decision has been correctly decided or not is not within the realm of this Court in as much as sitting singly, this Court cannot comment upon the correctness or otherwise of the said decision and it is open to the petitioner to advance his submission in relation to the said judgment by filing an appeal and getting a reference made if permissible in law in view of the law laid down by this Court in the Full Bench decision of this

Court in the case of Rama Pratap Singh and others Vs. State of U.P. and others, 1995 (1) ACJ 200 (FB).

The question as to whether the petitioner can be regularized or not is a question of framing of Rules by the State Government. No Rule has been framed which may confer any benefit to the petitioner keeping in view the contention raised in this regard. Merely because a communication has emanated from the District Inspector of Schools calling for certain information that by itself does not confer any right on the petitioner to claim regularisation. The said argument is also misconceived and is rejected.

Accordingly, the question as to whether the petitioner, after attaining his age of superannuation, has a legal right to claim the said post or not stands answered in the terms referred to herein above. Once this is held that the petitioner has no right to continue on the post of officiating Principal, this Court would not issue a futile writ in favour of the petitioner even if the order of the District Inspector of Schools is without jurisdiction. The petitioner, in my opinion, has not been reverted. He was holding the officiating charge and the charge has been taken away in view of the law which has been referred to herein above.

The question of suitability of Harindra Prasad, therefore, is irrelevant for the petitioner. The cause of action for the petitioner is entirely different from the other 2 writ petitions and, therefore, there is no necessity of

4

combining this writ petition along with the other 2 writ petitions.Whether the selected candidate has joined or not is not the concern of the petitioner in view of the conclusions drawn herein above and, therefore, the writ petition has no merit and is, accordingly, dismissed.

Dt. 5.12.2009                                        Sd A.P. Sahi J.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

                      AFFIDAVIT OF SERVICE

                                     IN

         SPECIAL    APPEAL     NO.                       OF 2009

           (Under Chapter VIII Rule 5 of High Court Rules, 1952)

                                                                                                                                                      (DISTRICT – ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.

                            Versus

  The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - -  Opposite parties/ Respondents Affidavit of    

Affidavit of  Surendra Prasad  Agnihotri aged about 62 years S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah

                  (Deponent)

             I, the deponent above named, do hereby solemnly affirm and state on oath as under: -

1.           That the deponent is the  appellant in the present Appeal and as such the deponent is well acquainted with the facts of case deposed to below.

2.           That the copy of stay application, affidavit filed in support of stay application as well as its annexure has been served to the counsel representing respondent no.6 and the same has also been served in the office of Chief Standing Counsel on behalf respondent no.1 to 5 and endorsement to this effect has been obtained from them. The respondent no.7 and 8 is already represented in the writ petition no. 65694 of 2009 writ petition no. 63808 of 2009 through counsel for the appellant and as such need not be send the notice.

3.                  That under these circumstances, it is expedient in the interest of justice that present affidavit of service may kindly be accepted on record as the deponent has served all the respondents.           

I, the deponent above named, do hereby verify that the  contents of para nos. 1 and 2               of this affidavit are true to my  personal knowledge and those the contents of para nos.                                                                                                                                                                   

    

        of this affidavit are based on perusal of records and those the contents of para no. 3                                             of this affidavit are based on legal advise, which all I believe to be true that no part of it is false and nothing material has been concealed in it. So help me God.

                                                                             (Deponent)

            I, Yogesh Kumar Saxena, Advocate, High Court, Allahabad, do hereby verify that the person making this affidavit and alleging himself to be the deponent is known to me from perusal of papers produced before me by him.

                                                           

                                                                                       (Advocate)

                 Solemnly affirmed before me on this   7th day of Dec., 2009 at about            a.m./p.m. by the deponent, who has been identified by the aforesaid person.

                  I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been readover and explained to him.                                       

                              

OATH COMMISSIONER.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

                                       Affidavit

                                     in support of

       Civil Misc. Stay Application No.                           of 2009

 (under Chapter XXII Rule 1 of Rules of Court, 1952read with   Section 151 C.P.C.)

                                   On behalf of

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - - - - Appellant /Petitioner

 IN

SPECIAL    APPEAL     NO.                       OF 2009

  (Under Chapter VIII Rule 5 of High Court Rules, 1952)

                                                          (DISTRICT – ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.

                            Versus

The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - -  Opposite parties/ Respondents

Affidavit of  Surendra Prasad  Agnihotri aged about 62 years S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah.

                                          (Deponent)

             I, the deponent above named, do hereby solemnly affirm and state on oath as under: -

1.  That the deponent is the Appellant in the present Appeal and as such the deponent is well acquainted with the facts of case deposed to below.

2.     That the contends of application for interim relief mention has been read over and explained to the deponent.

3.     That apart from this, the following documents and the annexure in support of have also being filed in support of the stay application.

4.     That the Copy of  order passed in Writ Petition No. 65692 of 2009 on 5.12.2009  is marked  as Annexure No. 1 in support of the present Special Appeal.

5.     That the Copy of the Order passed in writ petition No. 63808 of 2009( required to be  heard along with Writ petition No. 12133 of 1997) passed on 5.12.2009  is  annexed as ANNEXURE NO. 2 in support of the present Application.

6.      That the Photo Copy of Writ Petition No. 65694 of 2009 filed on24.11.2009 is marked  as Annexure No. 3 in support of the present Special Appeal.

7.     That apart from this Copy of the Writ petition No. 65692 of 2009 filed on dated 24. 11. 2009 and writ petition No. 63808 of 2009 along with Writ petition No. 12133 of 1997 are annexed as ANNEXURE NO. 4 and 5 in support of the present Application.

8.     That apart from this Copy of the Writ petition No. 12133 of 1997 along with Counter affidavit and rejoinder affidavit is marked  as Annexure No. 7 in support of the present Special Appeal.

9.     That apart from this Copy of Interim order passed in  Writ petition No. 12133 of 1997 is marked  as Annexure No. 7 in support of the present Special Appeal.

10.                        That copy of the orders passed in writ petition no. 65694 of 2009 passed on 4.8.2009 and 16.11.2009 by the respondent No. 2 and 5 are filed here with along with the photo copy of the writ petition no. 65694 of 2009.

11.                        That the institution of the  committee of Management namely Sri Gandhi Adarsh Intermediate College, Labedi, Etawah of respondent no. 6 is an intermediate College having grant in aid of the government and the provisions of U.P.  Intermediate Act, 1921, Act No.  5 of 1982 and U.P. High School and Intermediate college (payment of Salary) Act, 1971 are applicable to the petitioner‘s No. 1 Institution.

12.                        That the petitioner was initially appointed on 30.06.1971 as untrained Assistant Teacher. Thereafter the vacancy on the post of the lecturer in Hindi was created on account of the retirement of Sri Krishna Pratap Shukla after due advertisement in the news paper and on the said post the petitioner was given appointment as the Lecturer in Hindi on 19.08.1973. The petitioner was kept under probation for a period of one year.

13.                        That the approval to the aforesaid appointment of the Lecturer in Hindi of the petitioner was given by the District Inspector of School, Etawah vide letter no.T.E.-Lay-1/979/73-74 dated 19.08.1973.

14.                        That the District Inspector of School, Etawah changed the aforesaid order of his approval on the post of the Lecturer in Hindi in the substantive capacity of the appointment to the ad hoc appointment. The petitioner as Lecturer  and nine other L.T. grade teachers filed the writ petition no.7387 of 1973, which was allowed by this Hon’ble Court by the Judgment dated 28.11.1974 and as such the approval granted by the District Inspector of School, Etawah remained the approval as the Lecturer in Hindi in substantive capacity.

15.                        That the Special Appeal was filed against the aforesaid Judgment dated 28.11.1974 passed in writ petition no.7387 of 1973 which was dismissed by this Hon’ble Court with cost.

16.                        That the petitioner continued to discharge his duties as the Lecturer in Hindi and thereafter he became the senior most lecturers in the seniority list published on 01.07.1996, 01.07.1997, 01.07.1998 and 01.07.1999 respectively.

17.                        That on account of the retirement of Sri Chandra Shekhar Tripathi from the post of the Principal, the petitioner being the senior most Lecturer furnished all such documents to the District Inspector of School, Etawah for seeking approval from U.P. Madhyamik Shiksha Sewa Chayan Board, Allahabad (respondent no.2). The Service Book of the petitioner was also forwarded for taking approval to the aforesaid promotion on the post of the Principal of the institution.

18.                        That the appreciation certificate was given to the petitioner in due discharge of his duties and nothing has been found adverse against the conduct of the petitioner by anyone of the higher authority in the institution till date.

19.                        That the date of birth of the petitioner is 22.09.1947, which is shown in his service book. The petitioner has been duly approved on the post of the Principal by the District Inspector of School, Etawah vide his letter dated 03.01.2001. The petitioner is drawing the salary of Principal form the date of the aforesaid approval and he has been given the revise pay scale on the basis of the prescribed proforma filled up by the Principal.

20.                        That the petitioner has already applied before the respondent no.2 for giving appointment of the post of the Principal for which the entire service book of the petitioner and other relevant documents were forwarded to U.P. Madhyamik Shiksha Sewa Chayan Board, Allahabad the interview were conducted on 07.11.2001 in which the petitioner and other senior most lecturer namely Sri Krishna Yadav S/o Sri Maharaj Singh Yadav participated in the said selection process. It is submitted that Sri Krishna Yadav has already attended the age of the superannuation in 2007 and such the petitioner is the only eligible candidate required to be given substantive appointment on the post of the Principal in the institution.

21.                        That the dispute in the present writ petition is pertaining to the controversy in respect of regulation 21 in Chapter III of the Intermediate Education Act which is reproduced as under:-

^^21- vkpk;Z] iz/kkuk/;kid] v/;kid rFkk vU; deZpkfj;ksa dk vf/ko’kZ 60 o; gksxkA ;fn fdlh vkpk;Z] iz/kkuk/;kid] v/;kid dk mi;qZDr vf/ko’kZ o; 2 tqykbZ vkSj 30 twu ds e/; esa fdlh frfFk dks iM+rk gS rks mls] ml n”kk dks NksM+dj tcfd og Lo;a lsok foLrj.k u ysus gsrq fyf[kr lwpuk vius vf/ko’kZ o; dh frfFk ls 2 ekg iwoZ ns nsa] 30 twu rd lsok foLrj.k Lo;aeso iznku fd;k ;k le>k tk;sxk rkfd xzh’edk”k ds mijkUr tqykbZ esa izfrLFkkuksa dh O;oLFkk gks lds blds vfrfjDr lsok foLrj.k dsoy mUgha fof”k’V n”kkvksa esa iznku fd;k tk ldsxk tks jkT; ljdkj }kjk fu/kkZfjr dh tk;A

        ;fn fdlh fyfid vFkok prqFkZ oxhZ; deZpkfj;ksa ds v/ko’kZ o; dh frfFk fdlh ekg ds e/; fdlh frfFk dks iM+rh gS rks mldk lsok foLrj.k ml ekl dh vfUre frfFk rd iznku fd;k x;k le>k tk;sxkA fdUrq ;fn fdlh deZpkjh dh lsok&fu;qfDr dh frfFk fdlh ekg dh igyh rkjh[k dks iM+s rks mls iwoZorhZ ekg dh vfUre frfFk dks lsok&fuo`Rr dj fn;k tk;sxkA ^^

22.                          That there is no difference in the aforesaid regulation pertaining to the services of the teacher appointed in permanent capacity and the teacher appointed in officiating capacity under regulation 21 of Chapter III of the Intermediate Education Act. It is submitted that once the salary is amenable on the post of the Principal and the incumbent is getting the revise pay scale and also the increments admissible on the said post of the Principal, the benefit accrued by regulation 21 of Chapter III of the Intermediate Education Act shall be amenable to the petitioner for completion of the entire academic session, in which the petitioner is completing his age of retirement.

23.                        That in the present case the petitioner’s date of birth is 22^nd September 1947 and as such the petitioner has completed 62 years of services on 21^st September 2009 however on account of the benefit amenable to the teacher, having the benefit of the entire tenure in a particular academic session as per the safe guard provided under Regulation 21 of the Chapter III of the Intermediate Education Act, the petitioner shall be deem to continue as the Principal up to 30^th June 2010 and shall be entitled to get his salary on the said post of Principal up to the end of the academic session.

24.                        That in this regard it is submitted that the Hon’ble Supreme Court has taken into consideration that if the incumbent has got the teaching experience in the officiating capacity, their will be no difference with another teacher having the teaching experience in a permanent capacity and as per the decision of the Supreme Court in A.K. Bose Vs Union of India A.I.R. SC 509 and the State of M.P. Vs. Laxmi Shankar Mishra AIR 1979 SC page 979 (Para 10).

25.                        That similarly this Hon’ble Court in case of Raja Ram Chaudhary Vs. Satya Narayan Gupta reported in 2003 Vol. 2 ESC 956 has taken the similar analogy in respect of the entitlement to the officiating Principal for having the benefit of the entire academic session available to the officiating Principal.

26.                        That the Division Bench of this Hon’ble Court in case of committee of Management (Jagdish Saran Rajvansi,  Kanya Inter College Vs. Joint Director of Education)reported in 2000 Vol.  1 ESC page 645 has laid down that when a teacher gets the benefit of the academic session after attaining age of superannuation, the said benefit may not be denied to the Principal as per the harmonious interpretation and the rational classification as per regulation 21 of Chapter III of the Intermediate Education Act.

27.                        That on the other hand under section 18 of the U.P. Act no.5 of 1982, it has been considered that the appointment on the post of the Principal is the appointment on the higher post in the different grade and as such the ad hoc Principal is not entitled to get the benefit of the academic session after attaining the age of superannuation. A different preposition of law has been advanced in case of R.C. Gupta (Dr.) Vs. State of U.P. and others 2002 Vol-1 UPLBEC 767.

28.                        That it has been held that there is a basic different between the Permanent Principal and officiating Principal as ad hoc Principal has not rights to the post and he remained to continue as the Lecturer in the institution and as such after attaining his age of the superannuation, he cannot remained as the Principal of the institution. This preposition of law has been taken import from the judgment of the Supreme Court in S.K. Rathi Vs. Prem Hari Sharma 2000 Vol. 4 ESC Page 2278 (SC) wherein it has been held that a person cannot continue as acting Principal after he crosses the age of 60 years. It has also been laid down by giving the reference to the Government Order dated 05.07.2001, wherein it has been written that an ad hoc Principal cannot perform the function of the Principal after he crosses the age of superannuation.

29.                        That by the order of the Director of Education passed on 15.10.2008, it was provided that as per the provision of section 18(4)(5) of Chapter IV of the Act no.5 of 1982, it is provided that the senior most lecturer is entitled for promotion on the post of the principal in the vacancy cost in the institution. The similar prepositions have been laid down in Regulation 2(3) of Chapter II under the Intermediate Education Act, wherein the senior most teachers may be given appointment on the post of the Principal if the vacancy remained in existence for more than 30 days in the institution. It has been stated that in case of the said promotion, the incumbent shall only be entitled to draw his salary on the post of his working in the institution and he shall not be entitled to draw the salary of the higher post of the principal in the said institution.

30.                        That there is the difference between the appointment given purely on the temporary basis, as stop gap arrangement in order fill up the exigency to run the institution in temporary vacancy, while in other condition of given ad hoc/ officiating basis in the substantive vacancy created on account retirement on permanent post of  principal  after due selection amongst senior most lecturers , who was found competent to draw cooperation of other teachers, till the duly selected principal from the U.P. Secondary education services commission may not be available. An ad hoc person can not be replaced by another ad hoc teacher in the institution.

31.                        That even in such cases of the promotion of the petitioner as principal w.e.f. 1.7.1999, he continued to serve the institution with unblemished character high integrity in the institution having the co education and after completion of more 10 years as officiating principal and continued to remain Lecturer continuously in the institution from 22. 8.1973 is now being directed to remain under the subordination of the Lecturer, who has been given appointment 11. 8. 2003, after completion of two years probation period on account his involvement in  institution having love affairs with his Girl Student namely Deepa D/O Sardev Resident Of  Har Narain Pura , Dhobyai, Labedi, Atawah , after joining  on probation on 11.8.2001.                                                                                                                                                                                   

32.                        That the case of the petitioner is pertaining to his selection on the post of the Principal of the institution in the officiating capacity and he continued to draw his salary on the said post and thereafter the revise pay scale has also been given to the petitioner on the post of the Principal in the institution. The petitioner is no more the Lecturer in Hindi, nor can be reverted back to the said post even after completion of the age of superannuation on 21^st September 2009. His service book has been shown in order to substantiate the right of the petitioner on the post of the Principal and all the post retirement benefit including gratuity, provident fund shall be amenable to the petitioner on the post of the Principal and not on the post of the Lecturer in Hindi in the institution. Thus the principal laid down in R.C. Gupta (Dr.) Supra is not applicable in the present circumstances of the case and the petitioner is entitled to continue up to the completion of the present academic session and he is also entitled for his regular salary as he is discharging his duties on the said post of the Principal of the institution.

33.                        That the result of the interview conducted on 07.11.2001 is awaited as the Hon’ble Supreme Court has already directed the Service Selection Board to declare the result. The petitioner on account of his entitlement and unblemished record with a spotless career remained the only candidate to be appointed on the post of the Principal. If his date of superannuation is considered as that of his completion of the tenure on the post of the Principal and the petitioner is relegated back to the post of the lecturer in the institution then the said situation will again create the problem pertaining to the appointment of the Assistant Teacher on the post of the Lecturer as there is a quota prescribed for such promotion 50-50 for direct recruitment and by way of the promotion. In any circumstances if the petitioner is directed to teach on the post of the Lecturer after being continuing in service for more than 10 years as the principal in the institution, this will create in subordination and resulting in the abrupt discontinuation in the smooth functioning of the institution and career of the students will be adversely affected and as such there is no possibility of having any irrational qualification within a class which is violative of Article 14 and 16 of the Constitution of India.

34.                        That Article 14 has got a pervasive potency and versatile quality equalitarian in its soul in allergic to the discriminatory dictates. The arbitrary distinction between the same class and the cadre is antithesis to the equality which is resulting in hostile discrimination with the anticipated rights accrued on account of completion of a period of more than 10 years in service on the post of the Principal in the institution by the Principal.

35.                        That the Government Order dated 15.10.2008 has been relied pertaining to the provision of 16(g) in respect of the regulation 21 of Chapter III of the Intermediate Education Act wherein the benefit of the academic session was provided even to such ad hoc Principal who continued to draw their salary continuing on the post of the Lecturer but have been continuing on the post of officiating Principal in the institution.

36.                        That by another order dated 04.08.2009 the Director of Education Madhyamik Uttar Pradesh has withdrawn the aforesaid Government order in furtherance of the Judgment passed in Special Appeal No.1454 of 2006 decided on 27.11.2006 by the Division Bench of this Hon’ble Court.

37.                             That the case of the Hari om Tat sath Braham Shukla Vs. State of U.P. is the case of the Lecturer in Adarsh Bajrang Intermediate College, Banda and therein the claim of entitlement on the part of the officiating Principal was the contrary to the statutory appointment and as such the different question was  involved in the said case. The order passed by the District Inspector of School having handing over the charge to one Sri  Pratap Narayan Mishra by an order dated 28.06.2003 and the direction for giving when the appellant on 24.05.2006 was attaining the age of 64 years on 05.07.2006. It was not found appropriate in the said case.

38.                         That the papers for regularizations of the petitioner have already being forwarded to the District Inspector of Schools, Etawah in furtherance of his order dated 28.9.2007 and the management has forwarded the papers to the District Inspector of Schools, Etawah on 17.12.2007 and there is the protection granted for such regularization even to the officiating principals working from more than 10years as per the protection given to lecturers and other teachers under section 33A to 33F of Act No. 5 of 1982 in the order dated 28.9.2007 and forwarding of the papers to the District Inspector of Schools, Etawah on 17.12.2007. Thus petitioner can not be reverted back on the post of Lecturer, where he worked from 1973 up to 1999, from the post of officiating principal . 

39.                        That the respondent no. 6 has taken the decision on the representation of the petitioner filed on 20.6.2009 to provide the extension of his services up to 30.6. 2010 , as the petitioner has already faced the interview  before Uttar Pradesh Madhymik  Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad in the year of 2001 and his selection as regular principal is awaited on account of the fact that the other senior most lecturer after the seniority of petitioner namely Shri Kishan Yadav has retired from service in 2007.

40.                        That the District Inspector of School, Etawah has given the salary of the month of October, 2009 to the petitioner duly sanctioned by his account officer and as such , it was anticipated that the petitioner will be allowed to continue in the extension period  up to the end of the session.

41.                        That the matter pertaining to the seniority has been decided by the joint director without being having any power to decide the appeal in regulation 3 of chapter III of the Intermediate education act, 1921, earlier in favour of sri Virendra Kumar Tiwari lecturer in geography in view of the pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7. The impleadment application has been filed by the respondent no. 8 in the said writ petition. However totally contradictory orders have been passed by the respondent no. 4 in respect of inter se seniority, while there is no approved seniority list of the lecturers on account of pendency of these writ petitions.

42.                        That the matter pertaining to the seniority has been declined by the joint director without being having any power to decide the appeal in regulation 3 of chapter III of the Intermediate Education Act, 1921 and in view of the pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7 & order dated 24. 10. 2007 by the Joint Directors of Educations, where in respondent no.7 is claiming his seniority w.e. f. 1. 7. 1996 on account of the promotion of respondent no.7 as lecturer in Sanskrit in the institution.

43.                        That the respondent no. 4 has passed an order in contradiction to the order passed by the same authority on  24.10.2007 by then Joint Directors of Educations on 22.1.2008 stating therein that the respondent no. 8 is senior and the seniority determine on the length of services of lecturers in the institution on 03. 09. 2007 having the seniority assigned in favour of the respondent no.7 working as lecturer in Sanskrit w.e.f. 1. 7. 1996 after retirement of the incumbent posted on the said post as Mr. Suresh Chandra Tiwari (now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7,  has been set aside by the order dated 22.1.2008 passed by the respondent no. 4.

44.                        That the order passed by District Inspector of School, Etawah given the salary of the month of October, 2009 to the petitioner duly sanctioned by his account officer even after taken the request forwarded seeking approval of the extension of period of the petitioner and also for giving the charge on the post of officiating principal to the senior most lecturer namely the respondent no.7, who is having his right of senior most lecturer w.e.f.1.7.1996 itself , duly protected by this Hon’ble Court after retirement of the incumbent posted on the said post as Mr. Suresh Chandra Tiwari (now Retired) on account of his conviction u/s 302 I.P.C. was found unsuitable for the above promotion as per interim order passed in writ petition no. 12133 of 1997 filed by the respondent no.7.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

45.                        That in case of Mahant pratap Singh Versus D.I.O.S. UPLBEC 2002 (2) 1316 , it has been laid down that if the management on account of the allegation of moral turpitude, embezzlement and misappropriation of funds did not consider fit to appoint some one as the principal in the institution as he may lack of the other teachers cooperation and his appointment on such post of principal is detrimental to the institution, it may appoint appropriate lecturer awaiting the joining of the candidate selected by the Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad.

46.                        That surprisingly without even considering the proprietary, competency of District Inspector of School, Etawah in directing the respondent no. 6 to appoint respondent no. 8 and got his signature attested as officiating principal without any jurisdiction, simply  on account of the order passed on 22.1.2008 by the respondent no. 4  in contravention of the earlier orders passed by the same authority on 24.10.2007 and the pending proceeding of this Hon’ble Court in pendency of writ petition no. 10408 of 2000, connected with writ petition no. 12133 of 1997 filed by the respondent no.7, the impugned order has been passed on 16.11.2009.       

47.                        That in this manner,  the institution of the education are the cradle for children for enshrined their inherent competence to abide with the norms of discipline and these charitable services rendered by the teachers is not the play ground of the political affiliation and caste prejudices, but for the development of the personalities of the children. Thus if the individual without even being taken into his consideration, as to the factor of his being a teacher and student relationship and allure the IX class student running at a deplorable age of dilemma with him during the first probation period of such teacher by himself  and later on started embezzlement of the funds and misappropriate the property of the institution, how does the management and the principal and the other senior lecturers may allow such individual to serve as officiating principal. Thus the present writ petition is filed collectively by all the Petitioner as they are adversely and individually affected by the impugned order passed on 16.11,2009. The writ petition may kindly be accepted and the impugned order passed by the respondent no. 4 and 5 on 16.11.2009 may kindly be set aside.     

48.                        The present Writ petition is filed to challenge the order dated 16.11.2009 on the ground of jurisdiction, proprietary, competency of such order appointing officiating principal and attesting the signature of respondent no. 8 without any order or resolution of appointing authority. There is no authority vested with the District Inspector of School, Etawah to attest the signature of the respondent no. 8 as officiating principal. The order of 4.8.2009 passed by the respondent no. 2 is in contravention of statutory protection granted to the officiating principals working at par with regular principal in the institution. The same is having irrational classification within a class and such order being based upon the irrational classification is violative to the rights of the officiating principal fully competent to function as the principal. The case of the decision in Special Appeal No.1454 of 2006 (Hariom Tatsath Braham Shukla Vs. State of U.P.) is not applicable to the circumstances of present case the petitioner. The analogy advance in the said case is not the ratio, on which the earlier order Government Order dated 15.10.2008 has been withdrawn by the respondent no. 2 on 4.9.2009. The order passed on 4.9.2009 is baseless, misconceived and contrary to its object and beyond legislative competence.

49.                        That the Hon’ble Apex Court In M.S. Mudhol  (Dr.) Versus S.D. Helegkar(1993) 3 SCC 591hasheld that after having  worked for more than a decade , it will not be seen that the incumbent was qualification at the time of appointment, as the individual has competed his entire tenure without any complaint. Thus the order passed the respondent no. 2 on 4.9.2009 is not based upon the correct proposition as the order passed on 16.11.2009 shall be deemed to be the reversion from the post of principal to lecturer without following the procedure prescribed for imposing punishment as per the requirement of section 16-G (3) (a) of Intermediate Act and passed in violation of Regulation 31 up to 46 of Chapter III of Intermediate Act.

50.                        That even otherwise,  the respondent no.7 on account of the senior most eligible lecturer in Sanskrit w. e. f. 1.7.1996, in comparison to the  initial appointment of respondent no. 8 on 11. 8 2003 as lecturer in psychology, may be declare as eligible as senior most Lecturer, as the record of respondent no.7 is unblemished, spotless and excellent in comparison of   respondent no. 8, who has committed moral turpitude by indulging in allurement to his own student during probation in 2002 and indulged in embezzlement and misappropriation of the scout fund of the institution. 

51. That under these circumstances, it is expedient in the interest of justice that the impugned order passed on 4.9.2009 by the respondent No.2 and the order dated 16.11.2009 may be set aside. The petitioner may be permitted to complete this academic year as the officiating principal and the respondent No. 2,4, and 5 may provide him regularization and  the extension sought for by the management up to 30. 6. 2010 and further Uttar Pradesh Madhymaki Shiksha Sewa Chayan Board, 23, Alen Ganj, Allahabad through its Secretary., respondent No.3 may declare the result of interview faced  vide  interview letter dated 16.10.2001 on 07.11.2001.

52.               That under these circumstances, it is expedient in the interest of justice that present affidavit of service may kindly be accepted on record as the deponent has served all the respondents.           

           I, the deponent above named, do hereby verify that the  contents of para nos. 1 to 6  of this affidavit  and the contends of para no. 1, 2, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 , 23, 31, 32, 33, 34,36 37, 40, 41, 42, 43, 47, 50, 51  are true to my  personal knowledge and those the contents  therein of para nos. 3, 4, 5, 6, 7, 8, 9, 10,   29. 30. 32, 33, 34, 35. 37, 39, 44,

  of this affidavit are based on perusal of records and those the contents of para no.  , 21, 22, 24, 25, 26, 27, 28,29, 30, 38, 45, 46, 47, 48,  49 , 52---------------------------------------------------                                                           

of this affidavit are based on legal advise, which all I believe to be true that no part of it is false and nothing material has been concealed in it. So help me God.

                                                                     

                                                                               (Deponent)

            I, Yogesh Kumar Saxena, Advocate, High Court, Allahabad, do hereby verify that the person making this affidavit and alleging himself to be the deponent is known to me from perusal of papers produced before me by him.                                                             

                                                                          (Advocate)

                 Solemnly affirmed before me on this   7th day of Dec. , 2009 at about            a.m./p.m. by the deponent, who has been identified by the aforesaid person.

                  I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been readover and explained to him.                                  

                              

OATH COMMISSIONER.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

                      AFFIDAVIT OF SERVICE

                                     IN

CIVIL MISC. STAY APPLICATION  NO.                 OF 2009

                                     IN

    SPECIAL    APPEAL     NO.                       OF 2009

  (Under Chapter VIII Rule 5 of High Court Rules, 1952)

                                                                                        (DISTRICT – ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah. - Appellant /Petitioner.

                            Versus

  The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - -  Opposite parties/ Respondents

  Affidavit of  Surendra Prasad  Agnihotri aged about 62 years S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labedi, Etawah

                             (Deponent)

             I, the deponent above named, do hereby solemnly affirm and state on oath as under: -

1. That the deponent is the Appellant in the present Appeal and as such the deponent is well acquainted with the facts of case deposed to below.

2.That the copy of stay application, affidavit filed in support of stay application as well as its annexure has been served to the counsel representing respondent no.1 and the same has also been served in the office of Chief Standing Counsel on behalf respondent no1 to 5 and endorsement to this effect has been obtained from them.The respondent no.6 is already represented in the writ petition no. 65694of 2009  through counsel for the appellant  and the respondent No. 7 and are represented by the counsel of the Appellant in other two writ petition no. 65692 of 2009 and 63808 of 2009 and as such the notice need not be send.

3.                  That under these circumstances, it is expedient in the interest of justice that present affidavit of service may kindly be accepted on record as the deponent has served all the respondents.           

           I, the deponent above named, do hereby verify that the

      contents of para nos. 1 and 2                       of this affidavit are

      true to my  personal knowledge and those the contents of para nos.                                                                                                                                                                                                                               

                          of this affidavit are based on perusal of records and those the contents of para no.  3               of this affidavit are based on legal advise, which all I believe to be true that no part of it is false and nothing material has been concealed in it. So help me God.

                                                                             (Deponent)

            I, Yogesh Kumar Saxena, Advocate, High Court, Allahabad, do hereby verify that the person making this affidavit and alleging himself to be the deponent is known to me from perusal of papers produced before me by him.

                                                           

                                                                                       (Advocate)

                 Solemnly affirmed before me on this    7th day of Dec, 2009 at about            a.m./p.m. by the deponent, who has been identified by the aforesaid person.

                  I have satisfied myself by examining deponent that he understands the contents of this affidavit, which have been read over and explained to him.                                       

                                          

OATH COMMISSIONER.

IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD

                             Annexure No.

                                     In

Civil Misc. Application No.                   of 2009

IN

SPECIAL    APPEAL     NO.                       OF 2009

                   (Under Chapter VIII Rule 5 of High Court Rules, 1952)

                                                          (DISTRICT – ETAWAH)

Surendra Prasad  Agnihotri S/o Sri Babu Ram Agnihotri , Officiating Principal, Shri Gandhi Adarsh Inter College, Labadi, Etawah. - Appellant /Petitioner.

                            Versus

  The State of U.P. through Secretary Madhyamik Education, Government of U.P., Lucknow and others - - - -  Opposite parties/ Respondents