Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 394 (UTT)

Sudarshan Lal Sah v. State of Uttarakhand

2023-07-06

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : RAKESH THAPLIYAL, J. 1. By the present writ petition, the petitioner is praying for the following reliefs: “(1) a writ, order or direction in the nature of mandamus directing the respondents to grant salary of the post of Principal to the petitioner from the date when the petitioner took charge as officiating Principal in the institution i.e. 1-4-2019 as per the Law laid down by the Hon'ble Apex Court in SLP (C) No. 3088-3089 of 2020 (State of Uttarakhand vs. Mohan Chandra Pathak) and in the terms of the order dated 20-6-2012 passed by this Hon'ble court in Writ Petition No. 55 of 2011 Kanti Prasad Dadpuri vs. State and Others. (2) a writ, order or direction in the nature of mandamus directing the respondents to grant the arrear of the salary of the post of principal to the petitioner from the date of appointment as officiating principal to till the date of granting pay scale of principal. (3) a any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (4) award cost of the petition to the Petitioner.” 2. As it appears from the reliefs, the petitioner is claiming salary for the post of Principal from the date when he took the charge as an officiating Principal in the Institution, i.e. 01.04.2019, and this claim is based on a judgment rendered by the Full Bench of this Court dated 20.06.2012 passed in Writ Petition No. 55 (S/B) of 2011 titled as Kanti Prasad Dadpuri vs. State and Others, a copy of which is enclosed along with this petition as Annexure No. 7. 3. The petitioner submits that the aforesaid judgment of the Full Bench of this Court dated 20.06.2012 was challenged before the Supreme Court, and the Supreme Court, vide judgment and order dated 06.01.2017, while declining to interfere with the said judgment, dismissed the Special Leave Petition. While dismissing the said Special Leave Petition, the Supreme Court clearly observed that it will be open to the State to strictly enforce the Rules and Regulations which require the regular principal to be appointed within the stipulated time and where there is violation, the State is at liberty to take appropriate action in accordance with law. 4. A further reference has been made by the petitioner regarding one Mr. 4. A further reference has been made by the petitioner regarding one Mr. Mohan Chandra Pathak, who was appointed as an officiating Principal, and who later on vide order dated 09.08.2012 was promoted in the downgraded pay-scale of Principal, and after completing five years in the downgraded pay-scale of Principal, he was granted pay-scale of Principal. This incumbent filed a writ petition being Writ Petition No. 108 (S/B) of 2018, and this Court vide order dated 11.04.2018 disposed of the said writ petition in the light of the judgment dated 20.06.2012 rendered by Full Bench of this Court in Writ Petition No. 55 (S/B) of 2011. 5. It is further contended by the petitioner that against the said judgment dated 11.04.2018, a review application-being Review Application No. 1669 of 2018 was filed by the respondents, on the ground that by Notification No. 504 dated 18.10.2011, an amendment was made in the Regulations, however, this Notification was not dealt with in the said judgment passed by the Full Bench of this Court. The said review application was dismissed on 26.07.2019, and being aggrieved with the same, a special leave petition-being Special Leave Petition (Civil) Diary No. 1505/2020 was filed before the Supreme Court. In the said special leave petition, both the judgment and order dated 11.04.2018 passed in Writ Petition (S/B) No. 108 of 2018 as well as the order dated 26.07.2019 passed in Review Application No. 1669 of 2018 were challenged, and the said special leave petition was also dismissed by the Hon’ble Apex Court on 31.01.2020. 6. At this juncture, it is necessary to extract the relevant portion of the judgment dated 31.01.2020 passed by the Supreme Court, which reads as under: “We have heard the learned counsel for the petitioners at some length. Learned counsel for the petitioners contends that Rule 38 (2)(i) of the Uttarrakhand School Education Council (First Amendment) Rules, 2011 framed under Section 18 of the Uttarakhand School Education Act, 2006 would stand in the way of the respondent getting the relief as regular principal can only be appointed through the process prescribed and an officiating principal would be entitled to the same scale as that of a principal only after working for more than five years in that post in the officiating capacity. In the present case the respondent worked for more than five years as an officiating principal on the retirement of the earlier principal in 2011 but was appointed as a regular principal in accordance with the Rules only in the year 2016 and thereafter demitted office in 2017. Learned counsel for the petitioners also submits that there are 46 officiating principals and on a query submits that as the petitioner is a hilly State, it takes more time to make appointments. We are unable to agree with the contention of the learned counsel for the petitioners. No doubt the Rule has been framed in the context of an officiating principal to fill in the gap when the regular principal retires or is on long leave and the process of appointing regular principal is on. As to when a person would retire is known to the department in advance and thus logically steps should be taken earlier to make sure that there is no such requirement of stop gap arrangement. On the other hand what is happening is, as is apparent from the large number of officiating principals, that this work is taken from these persons for very long period of time as officiating principals and they are deprived of the financial benefits of working as a regular principal. We find that such course of action is completely arbitrary and illegal. We are thus of the view that the impugned judgment is based on the correct principle of law and if acting principals are as such acting for a long period of time by the process of not filling up of the vacancies, then they cannot be deprived of the benefits which shall accrue to them whether it is for the respondent or any of the other officiating principals. We thus dismiss these special leave petitions but with the aforesaid order so that there is no further litigation on this aspect and officiating principals are dealt with in a fair and reasonable manner. Pending applications shall also stand disposed of.” 7. Against the aforesaid judgment, a review petition was also filed and that too was dismissed by the Supreme Court by judgment and order dated 25.08.2020. 8. Pending applications shall also stand disposed of.” 7. Against the aforesaid judgment, a review petition was also filed and that too was dismissed by the Supreme Court by judgment and order dated 25.08.2020. 8. By referring the judgments of the Full Bench of this Court, as well as the judgment of the Supreme Court, the petitioner is claiming salary for the post of Principal, for the period he was working on the said post in officiating capacity. 9. Pertinently, since the post of Principal in the Institution was likely to fall vacant on 31.03.2019 due to the retirement of the then Principal, the Committee of Management of the Institution passed a resolution on 31.03.2019, as regards giving the officiating charge of the Principal of the said Institution to the petitioner as he was the senior-most lecturer in the Institution, and on 01.04.2019, the petitioner took the charge of the post of Principal of the Institution. On 25.04.2019, approval was accorded by the Chief Education Officer, Almora to the appointment of the petitioner on the post of officiating principal of the Institution. 10. By order dated 31.08.2020, the petitioner was given downgraded pay-scale of the post of Principal w.e.f. 01.04.2019, which the petitioner accepted. Though this downgraded pay-scale was given by an order issued on 31.08.2020, but the said downgraded promotion was given effect to from 01.04.2019. 11. No doubt, the post of Principal of the Institution fell vacant on 31.03.2019, due to the retirement of the then Principal, but from the next day, i.e. 01.04.2019, the petitioner was granted promotion as a Downgrade Principal. Hence, it cannot be said that the petitioner was officiating on the post of Principal w.e.f. 01.04.2019-that is the date when the petitioner was given downgraded promotion on the post of Principal. Apart from this, it appears from the order dated 31.08.2020 that this order of promotion was issued pursuant to Regulation 2(1) of Chapter-II of Uttarakhand School Education Board (First Amendment) Regulations, 2011 (hereinafter referred to as the ‘Regulations of 2011’) which was notified by Notification dated 18.10.2011. 12. Since the petitioner was given promotion to the post of Downgrade Principal w.e.f. 01.04.2019, and the post of the Principal fell vacant on 31.03.2019, therefore, the claim of the petitioner for salary for the period when he was working in the officiating capacity on the post of Principal cannot be sustained. 13. 12. Since the petitioner was given promotion to the post of Downgrade Principal w.e.f. 01.04.2019, and the post of the Principal fell vacant on 31.03.2019, therefore, the claim of the petitioner for salary for the period when he was working in the officiating capacity on the post of Principal cannot be sustained. 13. The order of promotion to the post of Downgrade Principal dated 31.08.2020 clearly reveals that the promotion to the post of Downgrade Principal was given effect to from 01.04.2019, which the petitioner accepted, and the same was never challenged. This itself reveals that the petitioner got all the benefits as admissible to a Downgrade Principal, on which post the petitioner was granted regular promotion as per the Regulations of 2011. After accepting the benefits as admissible to a Downgrade Principal, the petitioner cannot claim the benefits as admissible to the post of Principal on the ground that on 01.04.2019, he assumed the charge of officiating Principal. As a matter of fact, the petitioner was given downgraded promotion to the post of Principal w.e.f. 01.04.2019. Thus, the claim of the petitioner is totally misconceived. 14. Once the petitioner was granted promotion to the post of Downgrade Principal pursuant to the Regulations of 2011, he cannot claim that he is entitled for salary of officiating Principal, since he cannot be treated to be officiating on the post of Principal for the reason that he was granted promotion to the post of Downgrade Principal w.e.f. 01.04.2019. 15. In view of the above, the petitioner is not entitled to get any relief as sought in the present writ petition. Hence, the present writ petition fails and is dismissed. 16. No order as to costs.