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Court No. 1
Special Appeal No. 530 of 2010
Trilok Chandra Sharma
Vs.
State of U.P. and others.
Hon'ble Pradeep Kant, J.
Hon’ble Ritu Raj Awasthi, J.
Heard the counsel for the appellant Sri Ramesh Kumar Srivastava
and Sri H.G.S. Parihar for private respondent.
A preliminary objection has been raised by Sri H.G.S. Parihar that
the impugned order passed by the learned Single Judge is only an
interlocutory order, which does not decide any controversy and, therefore,
special appeal would not lie.
Learned counsel for the appellant, in response, submitted that a
finding has been recorded by the learned Single Judge that the rider of
Regulation 1 of Chapter-II of the Regulations will not apply in the present
situation and that being so, the senior most Lecturer is to be given the
charge of officiating Principal as contemplated under Section 18 of the U.P.
Secondary Education Service Selection Board Act, 1982. The learned
Single Judge has, therefore, observed that the ineligibility of the respondent
would not come in her way in taking the charge of officiating Principal.
Sri Parihar points out that the respondent was the only Lecturer
working on higher post on the date when the vacancy occurred and she was
given the charge of officiating Principal on 1.7.2010, whereas the appellant
was promoted subsequently i.e. on 8.7.2010.
Submission is that since the respondent was promoted/given the
charge of officiating Principal after the date of promotion of the appellant,
the appellant cannot raise any plea regarding ineligibility of the respondent
to hold the post.
The question involved in the writ petition is as to whether the
provision Regulation 1 of Chapter-II of the Regulations framed under the U.
P. Intermediate Education Act, 1921 which prescribes the minimum age for
being head of the institution, would apply in the case of (i) appointment of
officiating Principal also; and (ii) whether in view of the over-riding effect
of the provisions of U. P. Secondary Education Service Selection Board Act,
1982, such age prescription would not be applicable, or the said provision of
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the Regulations of the Act of 1921 stands protected under Section 32 of the
Selection Board Act. The observations made in the order of the learned
Single Judge, are only for the purpose of grant of interim relief. The same
cannot be taken as final as the matter still remains to be considered by the
learned Single Judge.
We are, therefore, of the considered opinion that after the interim
order having been passed, the appellant, who though had filed caveat but
did not choose to file counter affidavit, still is at liberty to move an
application for vacation of the stay order alongwith counter affidavit and if
the same is moved, it shall be decided expeditiously.
We, therefore, while declining to entertain the special appeal,
dispose of the same, with the aforesaid liberty.
Dated: 10.8.2010
MFA