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2020 DIGILAW 516 (ALL)

Kanhaiyalal Jha v. State of U. P.

2020-02-17

SANGEETA CHANDRA

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JUDGMENT : SANGEETA CHANDRA, J. 1. This Writ Petition has been filed by the petitioner, who was initially engaged as a teacher in an Institution by the name of Shri Nimbark Sanskrit Mahavidyalaya, Vrindavan, District Mathura. The Institution is affiliated with Sampurnanand Sanskrit Vishwavidyalaya, Varanasi and is receiving grant-in-aid from the State Government. All the employees of the Institution are getting their salary under the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, hereinafter referred to as the Payment of Salary Act, 1971. 2. It has been submitted that the petitioner was appointed as Officiating Principal at the Institution on 7.1.1998 and since then he had been regularly working on the said post. His signature was attested by the competent officer by an order dated 12.5.1998. The Deputy Inspector of Sanskrit Schools, Agra Region, Agra had issued the said order, a copy of which has been filed as Annexure-2 to the Petition. The Petitioner having worked for long as Officiating Principal was getting salary for the post of Lecturer and wrote a letter on 25.11.2010 to the District Inspector of Schools claiming salary for the post of Principal. Learned counsel for the petitioner has submitted that in response to the letter written by the petitioner, impugned letter was issued by the District Inspector of Schools, Mathura dated 3.1.2011 by which it was informed to him that as per the Statutes of Sampurnanand Sankrit University namely, Statute No. 37(2) and 49(5) (12.22), Officiating Principal may be appointed on the post of Principal on substantive vacancy occurring on the post, but he shall not be allowed salary for the post of Principal. 3. Learned counsel for the petitioner has submitted that Regulation 3(3) of Chapter II of the Regulations framed for Sanskrit Education under the U.P. Board of Sanskrit Education Act, 2000 provided that the Acting Head of the Institution is entitled to salary in the scale higher than the scale of pay in which he was drawing salary after six months of his service. Regulation 3(3) of Chapter II of the Regulation has been quoted in the Writ Petition in paragraph 14, which is reproduced herein-below: “(3) where the temporary vacancy in the post of the Head of Institution is for a period not exceeding six months, the senior-most teacher in the highest grade may be allowed to work as acting Head of institution, but he shall not be entitled to pay in a scale of higher than the scale of pay in which he is drawing as such teacher.” 4. It has been submitted further that with respect to State Universities Act a Division Bench of this Court has already held that Acting/Officiating Principal is entitled to salary in the pay scale of a regular Principal. However, another Division Bench came to different view and the matter was referred to the Full Bench of this Court in Dr. Jai Prakash Narayan Singh vs. State of U.P. and Others, 2014 (8) ADJ 617 where this Court compared the provisions of U.P. Higher Education Services Commission Act, 1980 and U.P. State Universities First Statutes (Age of Superannuation, Scales of Pay and Qualifications of Teachers) 1975 and came to conclusion that prior to enforcement of Commission Act w.e.f. 20.8.1981 management was duly empowered under the Statutes of the University to appoint as Officiating Principal a teacher, upon the office of the Principal falling vacant in an affiliated college until a regular appointment was made. The condition was only to the effect that for a period of three months any teacher can be appointed as Officiating Principal, whereas beyond a period of three months, only a senior-most teacher can be appointed to officiate as Principal. With the enforcement of Section 16 of the Commission Act and the First and the Second Removal of Difficulties Orders, 1982 and 1983, the power to appoint ad hoc Principal, which existed in the management, was not taken away. If such power is held to be taken away, serious prejudice would be caused in the functioning of educational institutions including affiliated colleges. If 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 of a Principal. If such power is held to be taken away, serious prejudice would be caused in the functioning of educational institutions including affiliated colleges. If 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 of a Principal. It is, therefore, held that any provisions in the Statutes of the University, which provided for power to appoint Officiating Principal, is preserved even after coming into force of the Commission Act. It was also held that where a person had been appointed as an Officiating Principal until a regularly selected candidate takes charge, it involves an assumption of duties and responsibilities of a greater importance than those attached to the post of a teacher, therefore, an officiating Principal appointed under the Statutes of the University would be entitled to claim payment of salary in the regular grade of Principal for a period during which he or she has worked until a regularly selected candidate has been appointed and has assumed charge of the office. 5. In Writ Petition No. 1590 of 2008, Dr. Bramhanand Shukla vs. State of U.P. through Secretary, Higher Education, a Coordinate Bench of this Court at Lucknow was considering a challenge to Statute 12.22 of the First Statutes of the Sampurnanand Sanskrit University and after placing reliance upon the Full Bench Decision in Dr. Jai Prakash Narayan Singh (supra) it held that the provisions of the First Statutes of Purvanchal University and Statutes 12.22 of the First Statutes of the Sampurnanand University are pari materia except for the bar indicated in the Statute of not giving salary for the post of the Officiating Principal. This Court set aside the clause in the Statute 12.22, which related to not giving of salary for the post of Principal to a person, who is appointed to officiate on it. 6. The Judgment dated 29.5.2019 passed by the coordinate Bench in Dr. Bramhanand Shukla (supra) was considered by the Division Bench of this Court in Writ Appeal No. 35341 of 2007, Moti Lal Shukla vs. State of U.P. and Others and this Court on 27.11.2019 allowed all the Writ Petitions in the Bunch after referring to both the Full Bench and Coordinate Bench decision in its order and directed that the petitioners shall be entitled for salary for the period they have worked as Officiating Principal. 7. 7. In view of the law settled by this Court in Dr. Bramhanand Shukla (supra) and Moti Lal Shukla (supra), this Writ Petition is allowed. 8. The Communication dated 3.1.2011 sent by the District Inspector of Schools to the petitioner is quashed. Direction is issued to the District Inspector of Schools, Mathura, respondent No. 3 to pay regular salary in the pay scale of Principal to the petitioner for the period for which he has worked on the said post within a period of three months from the date a certified copy of this order is produced before him.