Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 967 (ALL)

Girija Prasad Dubey v. State of U. P.

2019-04-16

MANISH MATHUR

body2019
JUDGMENT : Manish Mathur, J. 1. Heard Sri G.C. Verma learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of opposite parties 1 to 5. As per office report dated 17.9.2004, no power has been filed on behalf of opposite party No. 6, i.e. the Committee of Management of Sri Shiv Sanatan Dharam Sanskrit Pathshala, Belwai, District Sultanpur, which, therefore, is unrepresented. However, the matter being old and with counter and rejoinder-affidavits having been already exchanged, the petition is being decided finally. 2. The present Writ petition has been filed seeking a direction to the opposite parties to pay the prescribed salary and consequential benefit of service to the petitioner for the post of Principal of Sri Shiv Sanatan Dharam Sanskrit Pathshala, Belwai, District Sultanpur. Further reliefs of arrears of salary for the said post and for regularisation of services on the post of Principal of the said institution have also been claimed. However, in view of the subsequent developments also, learned counsel for the petitioner is not pressing the prayer with regard to regularisation of services. 3. As per the averments made in the writ petition, the College in question was affiliated to the Sampoornanand Sanskrit Vishwa-Vidyalaya, Varanasi and at the time of filing of the writ petition, it had been recognised as a Post-Graduate College. It has been stated that the post of Principal fell vacant on 30.6.1982 due to the superannuation of the earlier Principal of the College and the petitioner being the senior-most Teacher was appointed on the said vacancy. Although the Writ Petition states that the petitioner was appointed on the post of Principal on adhoc basis but the learned counsel for the petitioner submits that the petitioner was actually appointed on the post of Principal on officiating basis and was not promoted on the said post on adhoc basis. He has indicated the supplementary-affidavit filed subsequently in the year 2015 to buttress the submission that the petitioner was appointed on the post of Principal only on officiating basis and not on ad hoc basis. He has also submitted that the difference in salary for the post of Principal is being sought by the petitioner only on the basis that he was appointed on officiating basis and was not actually promoted on adhoc basis. He has also submitted that the difference in salary for the post of Principal is being sought by the petitioner only on the basis that he was appointed on officiating basis and was not actually promoted on adhoc basis. In view of the submissions made by the learned counsel for the petitioner, the pleadings as well as the prayer in the petition is being looked into on the basis that the petitioner was officiating on the post of Principal and had not been promoted on adhoc basis on the said post. 4. It has also been stated in the Writ Petition that on taking charge of the post of Principal, the resolution of the Committee of Management pertaining to the petitioner was sent to the District Inspector of Schools and that the petitioner was performing the duties of Principal since 3.10.1982. It has been further stated that, subsequently, vide another resolution dated 21.4.1999, the Committee of Management had again passed a resolution requesting the competent authority for payment of salary to the petitioner for the post of Principal of the College. However, neither the earlier resolution of 1982 nor its approval which is said to have been granted by the competent authority, is on record. In view of the said facts, the learned counsel for the petitioner is restricting his prayer to the grant of difference in salary of the said post, to the petitioner, only with effect from the year 1999. 5. Learned counsel for the petitioner has drawn attention to the supplementary-affidavit dated 28.9.2015 with the letter dated 30.5.2002 issued by the Sampoornanand Sanskrit Vishwa-Vidyalaya, Varanasi (hereinafter referred to as the University) indicating that the College was recognized up to the level of 'Shastri', i.e. Graduate. The College vide letter dated 2.11.2008 had also written to the University Grants Commission, through the Registrar of the University, for inclusion of the College under the University Grants Commission Act of 1956. In terms of the aforesaid proceedings, the University itself had also submitted documents certifying that the College in question was imparting studies for 'Shastri' (B.A.-three year degree course) and 'Aacharya' (M.A. two-year course) and that the year of establishing as a Degree Institution was 1892. The aforesaid facts were indicated to the University Grants Commission by the authorities of the University vide document dated 11.5.2008, which is on record as Annexure SA-7 to the supplementary-affidavit. The aforesaid facts were indicated to the University Grants Commission by the authorities of the University vide document dated 11.5.2008, which is on record as Annexure SA-7 to the supplementary-affidavit. The aforesaid document clearly goes to show that the College in question was clearly imparting studies up to the graduation level. 6. Learned counsel for the petitioner has also drawn attention to the order dated 7.1.1999 issued by the Government whereby the various Sanskrit Schools were categorized into three categories, such as 'Prathmic', 'Madhyamic' and 'Maha-Vidyalaya' level with the 'Prathmic' level being indicated for those schools which were imparting education in the primary sections. The 'Madhyamic' Colleges were those colleges which were imparting education up to the intermediate level while 'Maha-Vidyalayas' were those institutions which were imparting Graduate and Post-Graduate education. Subsequently another Government Order dated 27th May, 2004 was issued under the aforesaid categorization indicating the pay-scales which were applicable to the various posts of the Schools and Colleges under the said three categories. The said order clearly indicates that the scale of pay for the post of Principal of a Degree College, i.e. Category 'A' would be Rs. 8000-13500 revised to Rs. 10000-15200. The said document also indicates the scale of pay of the Principal for the Secondary School as Rs. 4500-7000 revised to Rs. 6500-10500. 7. Learned counsel for the petitioner, on the basis of the aforesaid documents, submits that the College in question being admittedly recognised up to the level of a Degree College would, therefore, fall within category 'A' in terms of the Government Order 'dated 27.5.2004 instead of category 'C. It is the submission of the learned counsel for the petitioner that the petitioner having been discharging the duties of the post of Principal on officiating basis should have been granted the pay-scale of category 'A' College instead of Category 'C' which was actually given to him. 8. So far as the appointment of the petitioner is concerned, learned counsel for the petitioner submits that it is the admitted case that the petitioner was discharging the duties as the senior-most Teacher of the College. It is also undisputed that the provisions of the First Statute of the University applied on the College prior to the year 2000 when the Sanskrit Board came into existence. It is also undisputed that the provisions of the First Statute of the University applied on the College prior to the year 2000 when the Sanskrit Board came into existence. Learned counsel for the petitioner has drawn attention to paragraph 12.22 of the First Statute of the University to indicate the provisions for appointment on the post of Principal on officiating basis. He has also drawn attention to letter dated 16.6.2006 issued by the District Inspector of Schools, annexed as Annexure SA-1 to the supplementary-affidavit which indicates that the appointment of the petitioner on the post of Principal on officiating basis was approved by the District Inspector of Schools. 9. The learned Standing Counsel appearing on behalf of the opposite parties refuting the arguments of learned counsel for the petitioner has, submitted that the College in question is an Intermediate College and, therefore, the petitioner was correctly paid the salary as admissible to teachers of Intermediate Colleges since the College in question is recognized and aided at the Intermediate level. It has been further submitted that the Management did not intimate the vacancies and appointed the petitioner in violation of the First Statutes of the University since the appointment to the post of Principal is liable to be made through the duly constituted Selection Committee under Statute 11.16 of the First Statutes. It has also been submitted that no prior permission from the University was taken without which the appointment of the petitioner on the post of Principal was against the Rules. 10. I have considered the arguments raised by learned counsel for the parties and perused the record. 11. It is note worthy that the present dispute is only with regard to the appointment of the petitioner on the post of Principal on officiating basis and not on substantive basis. It is also admitted that the petitioner was not only given charge of the post of Principal on officiating basis but he also continued on the post of Principal only on officiating basis. 12. In view of the aforesaid, the only two questions which require to be answered are: (a) Whether the petitioner is entitled to the scale of pay for the post of Principal even though he held the said post only on officiating basis? 12. In view of the aforesaid, the only two questions which require to be answered are: (a) Whether the petitioner is entitled to the scale of pay for the post of Principal even though he held the said post only on officiating basis? (b) Whether the petitioner is entitled to the scale of pay for the post of Principal of a Degree College or an intermediate College? 13. So far as the first question is concerned, the matter is already adjudicated upon in the Full Bench decision in Dr. Jai Prakash Narayan Singh v. State of U.P. and others, 2014(8) ADJ 617 (FB) : 2014(3) ESC 1646 (AII)(FB), wherein the Full Bench has specifically held that the person appointed on the post of Principal on officiating basis until a regularly selected candidate takes charge would be entitled to the pay-scale of the post of Principal since it involves assumptions of duties and responsibilities of greater importance than those attached to the post of Teacher. It was further held that a person appointed as an officiating Principal under the Statutes of the University would be entitled to payment of salary attached to the post of Principal until regularly selected candidate is made available. In view of the aforesaid Full Bench decision, the petitioner would definitely be entitled to the pay-scale for the post of Principal even though he held the post on officiating basis. The said Full Bench decision would be squarely applicable in the present case in view of the letter dated 16.6.2006 written by the District Inspector of Schools to the Management of the College admitting the fact that the petitioner's appointment on the post of Principal on officiating charge had been approved by the then District Inspector of Schools. The said letter dated 16.6.2006 is on record as Annexure SA-1 to the supplementary-affidavit. 14. So far as the submission of the opposite parties is concerned that the appointment of the petitioner was illegal since no intimation or prior approval was taken by the Management is concerned, it can be seen that Statute 11.32 of the First Statutes of the University clearly provides that the Vice Chancellor's approval shall not be necessary for an officiating or temporary appointment of a Principal. Although the said provision applies only to a case where the vacancy is likely to last for not more than six months or on a vacancy caused by grant of leave to a Principal or teacher for a period not exceeding ten months. In the present case, it is not disputed that the petitioner was appointed on the post of Principal only on officiating basis which continued since no regularly selected candidate was made available. The Full Bench in Dr Jai Prakash Narayan Singh (supra) has clearly held that if no power is to be construed to exist on the Management to make an officiating appointment, when a vacancy. arises, until a regular appointment is made in accordance with the provisions of the Act, serious prejudice would be caused in the functioning of the educational institution. There is a vital element of public interest in the proper functioning of educational institutions and if the cause of education is not to suffer, some arrangement would have to be made during the period when there is a vacancy in the office. 15. I am in respectful agreement with the aforesaid judgment which, in my opinion, applies to the facts of this case and am, therefore, of the; view that no intimation or prior approval was required in the present case, in view of Statute 11.32 of the First Statutes of the University in terms of which no approval from the Vice Chancellor is required in case of officiating appointments. Thus, it can be seen that the power to -make appointment on the post of principal on-officiating basis is vested in the Committee of Management. Further more, it is nobody's case that the petitioner was not qualified to hold the said post or that any regularly selected person was ever provided to the institution for appointment on the post of Principal on substantive basis. 16. So far as the second question is concerned, the documents on record clearly indicate that the University itself has submitted documents certifying that the College in question was imparting studies for 'Shastri' (B.A.-three year degree course) and 'Aacharya' (M.A.-two-year course) and that the year of establishment of the institution as a Degree College was 1892. The aforesaid fact was indicated to the University Grants Commission by the University itself vide letter dated 11.5.2008, which is on record as Annexure SA-7 to the supplementary-affidavit. The aforesaid fact was indicated to the University Grants Commission by the University itself vide letter dated 11.5.2008, which is on record as Annexure SA-7 to the supplementary-affidavit. In view of the aforesaid letter, it is clear that the University itself was treating the College in question as a Degree College and not as an Intermediate College and, therefore, the contention of the opposite parties that the College in question was only an Intermediate College deserves to be rejected. 17. Vide Government Order dated 7.1.1999, the State Government has categorized the various Sanskrit Schools into three categories, such as 'Prathmic', 'Madhyamic' and 'Maha-Vidyalaya' with 'Maha-Vidyalayas' being the institutions which impart studies relating to Graduate and Post-Graduate education, vide another Government Order dated 27th May, 2004, the pay-scales of various posts for the Colleges in view of the said categorization have been indicated with the post of Principal of a Degree College, i.e., Category 'A' being shown as Rs. 8000-13500 revised to Rs. 10000-15200. In view of the recognition being accorded by the University itself for the College being a 'Maha-Vidyalaya', it definitely follows that the scale of pay for the post of Principal for the College in question would be that as admissible for the post of Principal of a Degree College, i.e. Category 'A' and the petitioner having discharged his duties for the post of Principal, although on officiating basis, would be, thus, entitled to the pay-scale of Rs. 8000-13500 as revised from time to time. 18. In view of the aforesaid, it is clear that the College in question being a Degree College, the petitioner is entitled to the pay-scale for the post of Principal under Category 'A' in terms of the Government order dated 27.5.2004 read with Government Order dated 7.1.1999. 19. In view of the aforesaid, a writ in the nature of Mandamus is issued to the opposite parties to pay arrears of salary to the petitioner for the post of Principal of the College in the pay-scale of Rs. 8000-13500 as revised from time to time with effect from 21.6.1999 till the date of his superannuation on 30.6.2012 after adjusting the payments made towards salary and other allowances for the post of Principal in pursuance of the interim order dated 26.5.2005. 8000-13500 as revised from time to time with effect from 21.6.1999 till the date of his superannuation on 30.6.2012 after adjusting the payments made towards salary and other allowances for the post of Principal in pursuance of the interim order dated 26.5.2005. The aforesaid exercise is to be done within a period of six months from the date a copy of this order is produced before the said opposite parties. 20. In view of the aforesaid, the Writ Petition stands allowed.