Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1473 (ALL)

Bramhanand Shukla v. State of U. P.

2019-05-29

MANISH MATHUR

body2019
JUDGMENT : Manish Mathur, J. 1. Heard Sri G.C. Verma, learned Counsel for the petitioner and the learned State Counsel appearing on behalf of the opposite parties 1 to 5. No-one has put in appearance on behalf of opposite party No. 6, although a counter affidavit has been filed and is being considered. 2. The dispute in question is whether the petitioner who was appointed by the Committee of Management as Officiating Principal vide order dated 25.8.2004 upon superannuation of the regular Principal can be paid salary of the post of Principal on which he had officiated in the Smt. Bhagirathi Trust Aadarsh Sanskrit Mahavidyalaya, which is affiliated to the Sampurnanand Sanskrit University? 3. Statute 12.22 of the First Statutes of the Sampurnanand Sanskrit University provide for officiation on the post of Principal by the senior most Lecturer although it provides a bar for payment of salary of the post of Principal to such Lecturer. 4. The said Statute 12.22 of the First Statutes is under challenge regarding which the learned State Counsel has raised a preliminary objection that, in view of such challenge, the present Writ Petition would be cognizable only by a Division Bench. With regard to the said submission, it is to be seen that vide notification dated 25.4.1919, issued under the signatures of Hon'ble the Chief Justice, it has been directed that all cases where the vires of Central or State Legislation is challenged, be listed before the appropriate Division Bench having jurisdiction over the matter falling under the legislation in issue. The said notification is with effect from 30.4.2019. A perusal of the said notification clearly indicates that the matters cognizable by a Division Bench would only pertain to challenge to the vires of Central or State legislation. The First Statutes of the Sampurnanand Sanskrit University do not fall under the category of Central or State Legislation since they are notified in the Gazette by the State Government in terms of Section 50(1) of the U.P. State Universities Act, 1973 thereby having only statutory force and, therefore, the petition would be cognizable by a Single Bench. It is also to be seen that earlier the present Writ Petition had been filed before a Division Bench but thereafter by an administrative order issued by Hon'ble the Chief Justice dated 25.9.2018, the present Writ Petition has been made cognizable by a Single Bench. It is also to be seen that earlier the present Writ Petition had been filed before a Division Bench but thereafter by an administrative order issued by Hon'ble the Chief Justice dated 25.9.2018, the present Writ Petition has been made cognizable by a Single Bench. The said fact itself indicates that the matter is now cognizable by a Single Bench, in view of which the preliminary objection stands rejected. 5. The dispute in question already stands concluded by a Full Bench decision of this Court in Dr. Jai Prakash Narayan Singh v. State of U.P. and others, (2014) 4 UPLBEC 2642 , in which the Full Bench has clearly held that an Officiating Principal appointed under Statutes of the University which are pari materia to the provisions of Statute 10-B of the First Statutes framed under the State Universities Act, 1973 would be entitled to claim payment of salary in the regular grade of Principal for the period during which he or she has worked until a regularly selected candidate has been appointed and has assumed charge of the office. A reading of the aforesaid judgment indicates that the Full Bench has clearly held that there cannot be any bar for payment of salary for the post of Principal which a person holds even on officiation basis. 6. The present matter pertains to the Sampurnanand Sanskrit University whereas the Full Bench was considering the First Statutes of the Purvanchal University along with the provisions of Statute 10-B of the Uttar Pradesh State Universities First Statutes (Age of Superannuation, Scales of Pay and Qualifications of Teachers), 1975, (First Statutes), which reads as follows: "10-B. When the office of Principal of an affiliated college falls vacant, the Management may appoint any teacher to officiate as Principal for a period of three months or until the appointment of a regular Principal, whichever is earlier. If on or before the expiry of the period of three months, any regular Principal is not appointed or such a Principal does not assume office, the senior most teacher, in the college shall officiate as Principal of such college until a regular Principal is appointed." 7. If on or before the expiry of the period of three months, any regular Principal is not appointed or such a Principal does not assume office, the senior most teacher, in the college shall officiate as Principal of such college until a regular Principal is appointed." 7. Statute 12.22 of the First Statutes of the Sampurnanand Sanskrit University inserted by notification of the State Government dated 31.10.1985 reads as follows: ^^12-22 ;fn fdlh lEc) egkfo|ky; ds Ákpk;Z dk in fjDr gks tk;] rks egkfo|ky; dk T;s"Bre v/;kid Ákpk;Z ds :i esa rc rd dk;Z djsxk] tc rd lE;d~ :i ls p;u fd;k x;k Ákpk;Z in xzg.k u dj ys] ijUrq ,slk v/;kid ,slh vof/k esa ogh osru vkgfjr djsxk] ftls og v/;kid ds in ij ikus dk gdnkj gS vkSj mls Ákpk;Z ds in dk osru ugha feysxkA** 8. A comparison of Statute 10-B of the First Statutes of 1975 with Statute 12.22 of the Sampurnanand Sanskrit University would indicate that except for the bar regarding payment of salary for the post of Principal held on officiating basis, both the Statutes are pari materia. 9. In the judgment of Dr. Jai Prakash Narayan Singh (supra), the Full Bench of this Court has specifically held that the appointment of a Teacher as an Officiating Principal involves assumptions of duties and responsibilities of greater importance than those attaching to the post of a Teacher. It has been further held that an officiating Principal appointed under the Statutes of the University, which are pari materia to the provisions of 10-B of the First Statutes would be entitled to claim the payment of salary in the regular grade of Principal for the period during which he or she has worked until a regularly selected candidate has been appointed and has assumed charge of the office. 10. As has been seen herein above, the provisions of Statute 10-B of the First Statutes of 1975 and Statute 12.22 of the First Statutes of the University in question are pari materia except for the bar indicated in Statute 12.22 of the University. 11. 10. As has been seen herein above, the provisions of Statute 10-B of the First Statutes of 1975 and Statute 12.22 of the First Statutes of the University in question are pari materia except for the bar indicated in Statute 12.22 of the University. 11. As per the counter affidavit filed by the opposite parties 1 to 5, it is admitted that the petitioner was the senior most teacher in the Institution and was directed to look after the work of the post of Principal on officiating basis vide order dated 25.8.2004 by the Committee of Management of the Institution. It has been averred in the counter affidavit that salary and other benefits admissible for the post of Principal were not provided to the petitioner only on account of the bar indicated in Statute 12.22 of the First Statutes of the University. 12. The opposite Party No. 6 i.e. the University in question has also filed its counter affidavit taking a similar plea. However, a further submission has been made in the counter affidavit that the University had tried to get the Statute 12.22 of the First Statute amended by removing the bar indicated therein. It has been stated that for the aforesaid purpose, the University had written a letter dated 4.1.2008 to the State Government but the Chancellor of the University had disapproved the same vide letter dated 18.5.2010. 13. The aforesaid submission made by the University in its counter affidavit also indicates the fact that the University itself was perturbed by the bar incorporated in Statute 12.22 of the First Statutes and tried its best to remedy the situation. 14. It is relevant that in the judgment of Dr. Jai Prakash Narayan Singh (supra), the earlier judgment of this Court in the case of Paras Nath v. District Inspector of Schools, 1995 AWC 603, has been cited with approval. The said case also pertained to appointment on officiating basis on the post of Principal in a College affiliated to the Sampurnanand Sanskrit University in which the pay of the post of Principal had been granted in view of the doctrine of equal pay for equal work. 15. In view of the fact that the Full Bench of this Court in Dr. 15. In view of the fact that the Full Bench of this Court in Dr. Jai Prakash - Narayan Singh (supra) has clearly held that a Lecturer officiating on the post of Principal of an affiliated College would be entitled to the salary of the post of Principal on the principle of equal pay for equal work, this Court is of the opinion that the said Full Bench decision of this Court would be squarely applicable in the present case and the bar imposed in Statute 12.22 of the First Statutes of the Sampurnanand Sanskrit University, being clearly against the aforesaid judgment is liable to be struck down along with the order refusing grant of salary for the post of Principal to the petitioner. 16. During pendency of the present Writ Petition, the opposite parties had been directed vide order dated 24.10.2008 for payment of salary of the said post. In purported compliance of the aforesaid direction, the opposite parties have issued the impugned order dated 27.11.2008 denying the salary of the post of Principal to the petitioner on account of the bar indicated in the First Statute of the Sampurnanand Sanskrit University. 17. In view of the Full Bench judgment indicated herein above, a writ in the nature of Certiorari is issued quashing the portion of Statute 12.22 of the First Statutes of the Sampurnanand Sanskrit University, which creates a bar on the payment of salary of the post of Principal to a person holding the said post on officiating basis; as well as the impugned order dated 27.11.2008. A further writ in the nature of Mandamus is issued directing the opposite party No. 3, i.e. Director of Secondary Education U.P., Lucknow and opposite party No. 5 District Inspector of Schools, Mirzapur to make payment of salary of the post of Principal to the petitioner for the period during which he has officiated on the post of Principal of the Smt. Bhagirathi Trust Aadarsh Sanskrit Mahavidyalaya. 18. In the aforesaid terms, the Writ Petition stands allowed.