Jagdish Pandey v. State Of U.P. And 4 Others

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Chief Justice's Court Case :- SPECIAL APPEAL No. - 268 of 2015

Appellant :- Jagdish Pandey

Respondent :- State Of U.P. And 4 Others

Counsel for Appellant :- Amit Kumar Singh

Counsel for Respondent :- C.S.C.,K. Shahi,V.K. Singh

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice Hon'ble Manoj Kumar Gupta,J.

A writ petition filed by the appellant seeking a writ of quo- warranto against the fourth respondent who is the Principal of Swami Yoganand Purva Madhyamik Vidyalaya, Saifpur, Chandauli was rejected by the learned Single Judge by the judgment which is impugned in the present special appeal.

The fourth respondent was appointed as a Principal in 2004. In 2005, a writ petition was filed by three teachers of the institution seeking to question the legality of the appointment of the fourth respondent. In that writ petition, the appellant acted as a pairokar and admittedly filed an affidavit in support of the petition. The writ petition was permitted to be withdrawn and was dismissed as not pressed after, as the learned Single Judge observed, "the matter was heard at length." The order dismissing the writ petition as withdrawn was passed on 21 November 2005 and with it, an interim order dated 17 March 2005 was discharged. The appellant waited for well over four years after the withdrawal of the earlier writ petition until he filed, a writ petition in his personal capacity seeking a writ of quo-warranto against the fourth respondent on the ground that he was holding the post of Head Master without being in possession of the minimum prescribed qualification.

Neutral Citation No. - 2015:AHC:68789-DB

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Now, it is not in dispute that on 7 December 2014, when the fourth respondent was appointed as a Head Master, he did not possess the qualification of H.T.C., J.T.C., C.T. or B.T.C. prescribed by Rules 4 and 5 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Teachers) Rules 1978¹. The Rules were amended in 2008 so as to permit a person to be appointed as a Head Master on the basis of the B.Ed. degree qualification. The learned Single Judge held that admittedly on the date when the fourth respondent was appointed, he did not possess any of the certificates envisaged under Rule 4 of the Rules. The holding of a B.Ed. degree was included as a recognized qualification only in 2008. The issue which was however addressed by the learned Single Judge was whether the appellant was entitled to a writ of quo-warranto. The appellant was non suited on the ground that (i) admittedly the appellant was actively engaged in the affairs of the society running in the institution and was in fact a Manager of the institution when he brought into service other persons whose appointments suffered from the same flaw as that of the fourth respondent. The litigation was held to be malicious and motivated; (ii) In the State of Uttar Pradesh, there was a great deal of confusion prevalent at the relevant time whether a B.Ed. was "superior to the certificates finding mention in the Rule 4" and this is not a case where the fourth respondent alone had been permitted to continue on the post of Head Master by virtue of his holding a B.Ed. degree; (iii) The petition suffered from laches and acquiescence since though the fourth respondent was appointed as far back as in 2004, the

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writ petition was filed in 2010; and (iv) After the amendment of the Rules in 2008, there would have been no cause for complaint and as on date, the fourth respondent is fully qualified to hold the post of Head Master.

The submission which has been urged on behalf of the appellant is that delay is not a ground to dismiss a writ petition seeking issuance of a writ of quo-warranto in view of the decision of the Supreme Court in

Rajesh Awasthi vs. Nand Lal Jaiswal²in which, the concurring judgment holds as follows:

"From the aforesaid pronouncements it is graphically clear that a citizen can claim a writ of quo warranto and he stands in the position of a relater. He need not have any special interest or personal interest. The real test is to see whether the person holding the office is authorised to hold the same as per law. Delay and laches do not constitute any impediment to deal with the lis on merits and it has been so stated in Kashinath G. Jalmi v. Speaker³"

At the outset it must be noticed that several circumstances cumulatively have weighed with the learned Single Judge, the first and the most fundamental of which in our view is the absence of bona fides of the appellant himself. The writ petition filed by the appellant states that he is the founder member of Swami Yoganand Purva Madhyamik Vidyalaya which came into being on 15 August 1972 and that between 1972 and March 1989, the appellant was the Manager of the Managing Committee. The appellant was well aware about the issue pertaining to

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the qualification of the fourth respondent for, as we have noted earlier, he was the pairokar who was actively pursuing an earlier writ proceeding (Civil Misc. Writ Petition No.19523 of 2005) filed by three teachers questioning the appointment of the fourth respondent. The appellant was, therefore, clearly aware and in knowledge of all material facts. The writ petition was, after it was heard at length, dismissed as withdrawn on the request of the appellant by an order dated 21 November 2005. The appellant filed a writ petition before the learned Single Judge under Article 226 of the Constitution seeking the issuance of a writ of quo- warranto only in January 2010.

In this background, the learned Single Judge was justified in placing reliance of the judgment of the Supreme Court in Dr. M.S. Mudhol and another vs. S.D. Halegkar and others⁴. That was also a case where the first respondent had worked as a teacher for nine years in a High School and Higher Secondary School and issuance of a writ of quo-warranto was sought on the ground that he was not qualified to hold the post of Principal. Repelling the contention, the Supreme Court held as follows:

"5. As regards the teaching experience, the 1^strespondent's contention is that he had worked as a teacher for 9 years in a High School and Higher Secondary School which had up to

11 Standards. According to him, he also worked as a Lecturer in History. His further contention is that the post of the School Inspector in karnataka where he was working as such and that of the teacher were interchangeable. Hence the selection committee had taken into consideration his experience in both

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the capacities. These facts are not controverted before us and in any case today, he has the requisite experience of teaching as he has been teaching the 11^thand 12^thclasses continuously for 12 years now, since 1981. it can, therefore, be said that at least as on date when his removal from the post of Principal is sought, he cannot be said to be disqualified on account of the lack of required teaching experience.

6. Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1^st respondent for a long time, the fact remains that the Court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ." (Emphasis supplied)

The appellant may be right in contending that delay is not a factor which would non suit a person from seeking a writ of quo-warranto. However, delay in the present case coupled with all the facts and circumstances is certainly a matter which reflects on the absence of bona fides having due regard to the fact that the appellant was in active pursuit

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of the challenge to the appointment of the fourth respondent in a writ petition which was filed in 2005 and which was dismissed as withdrawn. In view of the above, it is not possible for the Court to hold that the order of the learned Single Judge declining to exercise the discretionary jurisdiction under Article 226 suffers from any error. This was essentially a matter pertaining to the exercise of discretion. This Court in a special appeal would not interfere especially where it has been found, as we have, that the discretion has been exercised along sound and judicious lines.

The special appeal is, accordingly, dismissed. There shall be no order as to costs.

Order Date :- 5.5.2015 (Dr.D.Y.Chandrachud,C.J.)

RK

(M.K. Gupta,J.)