C/M Shri Ganesh Inter ... vs State Of U.P. And Others
2011 Latest Caselaw 6279 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 33
 

 
Case :- WRIT - A No. - 52561 of 2011
 

 
Petitioner :- C/M Shri Ganesh Inter College,Kasganj,K.R.Nagar And Another
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Yogendra Kumar Srivastava
 
Respondent Counsel :- C.S.C.,Anurag Shukla,K.P. Shukla,Swapnil Kumar
 
And
 
Case :- WRIT - A No. - 66795 of 2011
 

 
Petitioner :- Ashok Kumar Bansal
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- K.P. Shukla,Anurag Shukla
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Both these writ petitions involve common question of law and fact and therefore, as agreed by learned counsel for the parties, I proceed to decide the same at this stage under the rules of the Court by this common order.

2. In Writ Petition No.52561 of 2011 (hereinafter referred to as "first writ petition") Sri Y.K.Srivastava, Advocate has appeared for petitioner, respondents No.1 to 4 are represented by learned Standing Counsel and Sri K.P.Shukla and Sri Anurag Shukla, Advocate both appeared for respondent No.5. In Writ Petition No.66795 of 2011 (hereinafter referred to as "second writ petition") Sri K.P.Shukla and Anurag Shukla appeared for petitioner, learned Standing Counsel represents respondents No.1 and 2 and Sri Y.K.Srivastava appeared on behalf of respondent no.3.

3. The only question up for consideration in both these matters "whether Ashok Kumar Bansal, petitioner of second writ petition, can continue to officiate as Principal of Shri Ganesh Inter College, Kasganj, District Kanshiram Nagar (hereinafter referred to as "College")."

4. Admittedly, Ashok Kumar Bansal is second senior most teacher in the College. He has attained the age of superannuation on 1st August, 2011 but entitled to continue till the end of the academic session i.e. 30th June, 2012. The erstwhile Principal of the College on attaining the age of superannuation and at the end of session retired on 30th June, 2011 as a result whereof substantive vacancy on the post of Principal occurred on 1st July, 2011.

5. The case of petitioner in second writ petition is that Manager of the College communicated him a letter dated 30th June, 2010 appointing him as Officiating Principal of the College observing that Purushottam Singh, who is senior most teacher in the College, has declined to take responsibility of Officiating Principal for some reasons. Pursuant thereto charge of office of Principal of the College on officiating basis was handed over to the petitioner on 1st July, 2010. The District Inspector of Schools also attested signature of Sri Bansal vide letter dated 3.7.2010. Since thereafter the petitioner in second writ petition has continued to discharge duties of Principal of the College.

6. It appears that there was some dispute whether officiating appointment has been made by Committee of Management or not and since there was no resolution of Committee of Management to this effect, District Inspector of Schools issued letters to Management directing it to send resolution proposing ad hoc promotion of Ashok Kumar Bansal as Principal of the College so that further proper action be taken. The Committee of Management later on passed a resolution on 4th August, 2011 resolving that in the light of threat addressed by District Inspector of Schools, Sri Bansal, Officiating Principal is proposed to be given the pay scale of the Principal. Thereafter the Management filed a first writ petition seeking following relief:

"i. Issue a writ order of direction in the nature of certiorari quashing the impugned order dated 30.8.2011 passed by District Inspector of Schools, Kanshiram Nagar (Annexure no.5 to the writ petition)."

7. This court by interim order dated 12.9.2011 stayed the District Inspector of Schools' order dated 30.8.2011.

8. Learned counsel for the petitioner in the second writ petition submitted that if the senior most or any teacher second or third in seniority has been appointed on Officiating basis of Principal, has been continuing before attaining the age of superannuation, he would continue to discharge the said duties even thereafter till the end of the session and placed reliance on Full Bench Judgement in Surendra Prasad Agnihotri Vs. State of U.P., 2010 (5) ADJ 1.

9. Learned counsel for the petitioner of first writ petition however submitted that the aforesaid judgment would apply only when the concerned teacher was appointed to officiate as Principal and not otherwise.

10. The rival contention above necessitated the adjudication of the following issue:

"I. Whether petitioner of second writ petition was ever appointed to officiate as Principal of College and whether this appointment, if any, was made by the competent authority i.e the appointing authority."

11. In the present case Committee of Management has taken a specific stand that it has never passed any resolution before 1.8.2011 to appoint petitioner of second writ petition on officiating basis as principal of the College. Under the Regulations, it is the Committee of Management of the College who is competent authority to make appointment of a teacher of a secondary institution as officiating principal. The Manager of Committee of Management himself is not competent to make appointment.

12. Despite repeated query no resolution of Committee of Management appointing Ashok Kumar Bansal, (petitioner of second writ petition) as Officiating Principal of the College has been placed before this Court.

13. In view of the fact that the petitioner of second writ petition has failed to place any such resolution before this Court and further that the Committee of Management has specifically taken defence that it has never passed such a resolution, I have no hesitation in holding that the petitioner was never appointed to officiate as Principal of the College before 1st August, 2011.

14. The Manager of the college being not competent to issue any letter of appointment, Annexure 2 to the second writ petition, would confer no right upon the petitioner of second writ petition to claim that he was appointed validly as Officiating Principal of the College. At the best it can be said that after retirement of erstwhile Principal or vacating the office earlier for any reason, the petitioner of the second writ petition was handed over charge of office of Principal on officiating basis but he was never appointed by the appointing authority on the said post.

15. In Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region-I Meerut and others, 2007(2) ESC 987 it has been held that mere handing over of charge to work as Officiating Principal of the College does not mean an appointment on the said post. The Court has said:

"16. . . . . . Whenever a person leaves office either on account of retirement, superannuation, leave, transfer etc, he proceeds after giving charge to his successor. Normally a person appointed to succeed in the office or one having a co-ordinate position and status is available to hand over charge, or in the absence of such person, the charge is handed over to the senior most person working in the office. When the Principal of the College was retiring on 30th June 1988, in the absence of any appointment or promotion to the post of Principal, she was required to hand over charge to the senior most teacher, who would have looked after day to day function of the office of Principal. But such a course of mere handing over charge would not result in promotion of such senior most teacher as officiating Principal unless and until an order to this effect is passed. Taking charge of a higher office and discharge its function; and to discharge function of a higher office after promotion pursuant to an order of promotion, whether on regular or ad-hoc or officiating basis, are two different things. In the former, the incumbent continue to possess the status and position of the office in which he/she is appointed substantively but look after the duties of the higher office of which charge has been handed over in addition to her substantive duties, but it does not result in a vacancy of any kind to the post/office, the incumbent is substantively holding, but, in the later case, the incumbent vacates his substantive office and discharge function of higher office by occupying the higher post. If the promotion is officiating or ad hoc such occupancy may be temporary, but the fact remain that it result in a vacancy in the lower post, may be short term and temporary.

17. . . . . . The aforesaid documents cemented the conclusion that the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over. In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.

18. A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-

"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion."

19. It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it."

16. Since the petitioner of second writ petition was never appointed on ad hoc or officiating basis on the post of Officiating Principal of the College, decision in Surendra Prasad Agnihotri (supra) would not help him and since he had attained the age of superannuation on 1.8.2011, he cannot continue to function as Principal of the College even on officiating basis. The writ petition No.66795 of 2011 is hereby dismissed and writ petition No.52561 of 2011 is hereby allowed. The order of District Inspector of Schools dated 30.8.2011, assailed in first writ petition, is hereby quashed.

Order Date :- 2.12.2011

KA