Allahabad High Court

Ram Raseeley Pandey vs State Of U.P. & 2 Others on 24 November, 2015

Bench: Pradeep Kumar Baghel




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 7
 
Case :- WRIT - A No. - 58665 of 2015
 
Petitioner :- Ram Raseeley Pandey
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- D.K. Pandey
 
Counsel for Respondent :- C.S.C.,Pankaj Kumar Srivastava
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

The petitioner claims to be an officiating Principal in a recognised institution, Chandra Shekhar Azad Inter College, Gaura, Mirzapur. He has instituted this writ petition for a direction upon the respondents for payment of salary in the grade of Principal along with arrears.

This matter has a chequered history. The facts are these:

Chandra Shekhar Azad Inter College, Gaura, Mirzapur1 is a recognised institution. It receives aid out of the State fund. It is governed under the provisions of the Uttar Pradesh Intermediate Education Act, 19212, the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 and the Uttar Pradesh Secondary Education Services Selection Board Act, 19823. The petitioner claims that he is the senior-most teacher in the institution. A vacancy occurred in the office of the Principal of the institution on 30th June, 2012 on the retirement of one Sri Rang Nath Singh. After the retirement of Sri Rang Nath Singh, there was a seniority dispute among Sri Dhanraj Singh, Sri Lullur Singh and the petitioner. Ultimately, the signatures of the petitioner were attested on 04th July, 2013.

The Committee of Management of the institution challenged the order of attestation of signatures of the petitioner by means of Writ-A No. 54981 of 2013 (C/M Through Manager Chandra Sekhar Azad Inter College and another v. State of U.P. And others). Laxmi Narain Dubey, a teacher of the institution, had also filed Writ-A No. 52610 of 2013 (Laxmi Narayan Dubey v. State of U.P. and others) regarding seniority. Both the aforesaid writ petitions were disposed of by this Court by a common order dated 09th October, 2013 with a direction to the Regional Level Committee to decide the dispute of their seniority. In compliance with the order of this Court, the Regional Level Committee vide its order dated 28th May, 2014 decided the seniority dispute in favour of the petitioner. Accordingly, the petitioner was declared senior.

While the petitioner was working as an officiating Principal, an order dated 02nd February, 2015 was issued by the District Inspector of Schools to send the salary bill of Laxmi Narain Dubey. The petitioner challenged the said order dated 02nd February, 2015 by means of Writ-A No. 8431 of 2015 (Ram Raseeley Pandey v. State of U.P. and others) on the ground that the direction of the District Inspector of Schools to include the name of Laxmi Narain Dubey in salary bill was illegal on account of the fact that his regularisation was cancelled on 13th April, 2012 by the Regional Level Committee as it was found that his alleged regularisation was based on a forged letter of the District Inspector of Schools dated 04th July, 2009. The said order of the Regional Level Committee dated 13th April, 2012 was challenged by Laxmi Narain Dubey by means of Writ-A No. 33265 of 2012 (Lakshmi Narain Dubey v. State of U.P. and others), which was dismissed by this Court on 17th July, 2012 holding that the appointment of Laxmi Narain Dubey itself was doubtful as his regularisation was found to be based on a forged letter. Aggrieved by the said decision, he preferred a special appeal, being Special Appeal No. 1430 of 2012 (Lakshmi Narain Dubey v. State of U.P. and others), which is still pending but no interim order has been passed therein.

In the petitioner's Writ Petition No. 8431 of 2015, filed by the petitioner, an interim order was passed by this Court on 24th April, 2015 staying the order of the District Inspector of Schools dated 02nd February, 2015, whereby the petitioner was directed to send the salary bill of Laxmi Narain Dubey.

After passing of the interim order in the aforesaid case of the petitioner, the District Inspector of Schools passed another order dated 20th May, 2015 directing the petitioner to handover the charge of officiating Principal to Dhanraj Singh, who was junior to the petitioner. The petitioner preferred Writ-A No. 32415 of 2015 (Ram Raseeley Pandey v. State of U.P. and others) challenging the order dated 20th May, 2015 which was allowed by this Court vide order dated 27th May, 2015 and the order dated 20th May, 2015 was set aside. After the aforesaid decision, the District Inspector of Schools passed an order dated 22nd August, 2015 to handover charge of officiating Principal to his junior and the petitioner was relegated to the post of Lecturer. The said order was challenged by the petitioner by means of Writ-A No. 49138 of 2015 (Ram Raseeley Pandey v. State of U.P. And others), which was allowed by this Court on 09th September, 2015 and the impugned order dated 22nd August, 2015 was set aside. The relevant part of the order dated 09th September, 2015 reads as under:

"...Be that as it may, the order impugned in the present case passed by the District Inspector of Schools is without compliance of the statutory requirements of Section 21 of the 1982 Act and without prior approval of the Board, therefore cannot survive and is quashed. The writ petition stands allowed.

However, this order shall not prejudice the right of the respondents to proceed with the departmental proceedings against the petitioner in pursuance of the chargesheet dated 03.09.2015."

In spite of the aforesaid three successive writ petitions filed by the petitioner and the interim order/final orders passed by this Court therein, Dhanraj Singh was permitted to function as officiating/ad hoc Principal.

In the aforesaid background of the facts, the petitioner preferred this writ petition for the following reliefs:

"i. issue a writ, order or direction in the nature of mandamus commanding the respondents to ensure payment of salary to the petitioner in the grade of Principal forthwith.

ii. issue a writ, order or direction in the nature of mandamus directing the respondents to pay arrears of salary of principal grade to the petitioner, pending since 04.07.2013 till date."

This Court on 15th October, 2015 has passed the following order in the present writ petition:

"Supplementary affidavit, filed today, is taken on record.

The petitioner's signature has been attested as an Officiating Principal of the Institution by the District Inspector of Schools (for short, "the DIOS") on 04th July, 2013.

Learned Counsel for the petitioner has drawn the attention of the Court to an order dated 24th April, 2015 passed by this Court in Writ-A No. 8431 of 2015, wherein the following order has been passed:

"Learned Standing Counsel represents respondents No.1,2 and 3. Since the committee of management has been superseded, the authorities controller is represented through learned Standing Counsel. Sri Kamlesh Shukla represents respondent No.4 and Sri Ashok Khare, learned senior advocate assisted by Sri Pankaj Srivastava represents respondent No.5.

Respondents may file counter affidavit within one month.

List thereafter.

Till the next date of listing, the operation of the order dated 30.12.2014 (Annexure-12 to the writ petition) shall remain stayed."

An order was passed by the DIOS on 20th May, 2015 directing the petitioner to handover the charge to another teacher. Thereafter, the petitioner filed another writ petition i.e. Writ-A No. 32415 of 2015 challenging the said order, which was quashed on 27th May, 2015. The writ petition no. 49138 of 2015 filed by the petitioner has also been allowed in favour of the petitioner on 9th September, 2015.

The grievance of the petitioner is that in spite of the aforesaid directions, the petitioner has not been paid salary of the Principal.

Let an interim mandamus be issued to the DIOS or show cause on 03rd November, 2015.

List this case on 03.11.2015.

Newly impleaded respondent may file counter affidavit on or before the next date."

Pursuant to the interim mandamus issued by this Court to the District Inspector of Schools, he preferred to file a show cause. The principal stand taken in the counter affidavit is that the petitioner was not appointed on the post of Principal as an ad hoc Principal and he was only appointed as an officiating Principal, therefore, he is not eligible to get the salary of the post of Principal. For the sake of convenience, Paragraph-12 of the counter affidavit is extracted below:

"12. That the contents of paragraph No. 7 of the writ petition are wrong hence denied. It is stated that the petitioner was not appointed on the post of principal as an ad-hoc principal. Moreover he was only appointed as officiating principal, therefore he is not eligible to get the salary of the post of principal. The said provisions are laid down in section 18 of the U.P. Madhyamik Shiksha Ayog Adhiniyam 1982. The copy of the said U.P. Madhyamik Shiksha Ayog Adhiniyam 1982 is being annexed and marked as Annexure No. C.A.-4 to this Counter Affidavit."

It is also mentioned in the counter affidavit that the petitioner was removed from the post of officiating Principal on some complaints.

Learned counsel for the petitioner submits that from the stand taken by the District Inspector of Schools in the counter affidavit it is clear that he has rejected the claim of the petitioner due to bias as all his earlier orders have been set aside by this Court. His conduct is contemptuous and against the well-settled law that ad hoc/officiating Principal is entitled for salary of a regular Principal.

Learned Standing Counsel has taken the Court to various paragraphs of the counter affidavit and supported the stand of District Inspector of Schools. No other submission has been made.

I have heard the learned counsel for the parties and perused the record.

The stand of the District Inspector of Schools that the petitioner was not appointed as an ad hoc Principal, therefore, he is not entitled for the salary of Principal is unacceptable. As noted above, the District Inspector of Schools himself has attested the signatures of the petitioner as officiating Principal on 04th July, 2013. The said fact has been averred by the petitioner in Paragraph-8 of the writ petition, which reads as under:

"8. That petitioner being the senior most teacher was handed over charge of the post of officiating principal and his signatures were attested by the District Inspector of Schools, by order dated 04.07.2013. The true copy of the order passed by the District Inspector of Schools dated 04.07.2013 attesting the signatures of the petitioner is being filed herewith and marked as ANNEXURE No. 1 to this writ petition."

Reply of paragraph-8 of the writ petition has been given in paragraph-13 of the counter affidavit in the following terms:

"13. That the contents of paragraph No. 8 of the writ petition are matters of record need no comment."

From the aforesaid pleadings it is established that the signatures of the petitioner as an officiating/ad hoc Principal have been attested by the District Inspector of Schools and the various attempts made by him to remove the petitioner from the post of officiating Principal were thwarted by this Court in the above mentioned three writ petitions filed by the petitioner [Writ Petition Nos. 8431 of 2015; 32415 of 2015; and, 49138 of 2015]. The orders passed by this Court in the aforesaid writ petitions are on the record as Annexures-SA-3, 3(a) & 3(b) of the supplementary affidavit.

Before adverting to the judgments of this Court on the issue, it is apposite to, at this stage, set out statutory provisions which are as under.

Regulation 2(3) of Chapter II of Part II-A of the Regulations framed under the Act, 1921 deals with the temporary vacancy in the post of Head of the institution, which reads as under:

"(3) Where the temporary vacancy in the post of head of institution is, for a period not exceeding thirty days, 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 higher than the scale of pay in which he is drawing salary as such teacher."

Section 18 of the Act, 1982 reads as under:

"18. Ad hoc Principals or Headmasters.--(1) Where the management has notified a vacancy to the Board in accordance with sub-section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the Management shall fill such vacancy on purely ad hoc basis by promoting the senior most teacher,--

(a) in the lecturer's grade in respect of a vacancy in the post of the Principal;

(b) in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.

(2) Where the Management fails to promote the senior most teacher under sub-section (1), the Inspector shall himself issue the order of promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he joins such post in pursuance of such order of promotion.

(3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of Principal or the Headmaster, as the case may be, due to any act or omission on the part of the Management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.

(4) Every appointment of an ad hoc Principal or Headmaster under sub-section (1) shall cease to have effect from the date when the candidate recommended by the Board joins the post."

The State Government has also issued a Government Order dated 18th January, 1974 accepting the recommendations of the U.P. Pay Commission prescribing the scales of pay for the teachers. Paragraph-5(2) of the Government Order provides that a teacher while officiating on the post carrying higher grade is entitled to officiating salary in the higher grade and it further prescribes for determining the salary of the officiating teacher in the higher grade.

The aforesaid Government order came to be considered by a Division Bench of this Court in the case of Dhaneshwar Singh Chauhan v. The District Inspector of Schools, Budaun and others4. The Division Bench held as under:

"2. The petitioner is a teacher in aided and recognised institution and the liability for the prejoint his salary is on the State Government under the U.P. High School and Intermediate College (Payment of Salary of Teacher and other Employees) Act, 1971. The salary of a teacher in aided and recognized institution is regulated by the regulation framed under the U.P. Intermediate Education Act and the order issued by the State Government from time to time. Regulation 46 in Chapter III lays down that employees of an aided and recognized institution shall be given the pay scale sanctioned by the State Government from time to time. The State Government has prescribed the scales of pay for teachers. The State Government issued an order on 18th January, 1974 accepting the recommendations of the U.P. Pay Commission prescribing scales of pay for teachers. Paragraph 5(2) of the Government order lays down that a teacher while officiating on the post carrying higher grade is entitled to officiating salary in the higher grade and it further prescribed procedure for determining the salary of officiating teacher in the higher grade. A copy of the Government order was before us by the petitioner. Respondents do not deny the petitioner's averment that the State Government issued orders sanctioning officiating pay to a teacher in the higher grade. The petitioner's claim for salary in Principal's grade was sanctioned by the District Inspector of Schools in pursuance of the aforesaid Government order. Respondents have failed to show any subsequent Government order or rule superceding the direction contained in Government order dated 24-1-74. The respondents have further failed to place any material before the court showing that the petitioner was not entitled to the salary in the Principal's grade while officiating on the post of Principal. The order of the District Inspector of Schools dated 31-8-77 is therefore not sustainable in law.

3. In the result we allow the petition and quash the order of the District Inspector of Schools and direct the respondents to pay salary to the petitioner in the Principal's grade for the period during which he has been officiating as Principal in accordance with the orders contained in the letter of the District Inspector of Schools dated 14-4-79. The petitioner is entitled to his cost."

In Narbdeshwar Mishra v. The District Inspector of Schools, Deoria and others5 another Division Bench of this Court again reiterated the same principle and held that the officiating Principal will be entitled to receive salary admissible to Principal.

Another Division Bench of this Court in the case of Soloman Morar Jha v. District Inspector of Schools, Deoria and others6 while considering the aforesaid issue held as under:

"3. There is no dispute that a permanent vacancy arose in the post of principal in the institution. There is, further, no dispute that the petitioner, being a seniormost teacher, was appointed to officiate on the post of Principal. Admittedly, the petitioner has been functioning as the acting Principal since 1-7-1981 and in that capacity, he has been discharging the functions of the Principal. Since the petitioner has been performing the duties and functions of the Principal, he is entitled to salary in the Principal's grade, for the period during which he continues to work as the Principal. In Dhaneshwar Singh Chauhan v. D.I.O.S. Budaun 1980 UPLBEC 286 as well as in Narvadeshwar Misra v. D.I.O.S. Deoria, 1982 UPLBEC 171, two Division Benches of this Court held that a lecturer officiating in the post of Principal is entitled to salary in the Principal's grade. The D.I.O.S. is under a legal obligation to pay the salary to a person for the period during which he acts as a Principal. The law is very well settled in this respect. The D.I.O.S. has refused to pay the salary to the petitioner in an unjustified manner."

The aforesaid decisions have consistently been followed and this Court in a long line of decisions considering the provisions of Section 18 of the Act, 1982 also has followed the aforementioned law.

Regard may be had to the fact that a similar provision is under the U.P. State Universities Act, 1973 and the First Statutes of various universities. For the first time, a divergent view was taken in the case of Daljeet Singh v. State of U.P.7, wherein the Court while considering Statute 13.20 of the Purvanchal University held that under the Statutes of the University the seniormost teacher is not appointed as an officiating Principal but is only permitted to discharge the duties of the Principal. In view of the conflicting decisions of this Court, the matter was referred to a Full Bench. The Full Bench in the case of Dr. Jai Prakash Narayan Singh v. State of U.P. and others8 considered all the relevant case laws in regard to the provisions of the U.P. Intermediate Education Act, the U.P. State Universities Act and the U.P. Secondary Education Services Selection Board Act. The Full Bench has referred the aforesaid decisions in paragraph-4 of its judgment, which reads as under:

"4. For the completeness of the record, we note that Division Benches of this Court in the following decisions directed the payment of salary drawn by a principal to an officiating principal of a secondary school:

(1) Dhaneshwar Singh Chauhan v. District Inspector of Schools, Budaun, 1980 UPLBEC 286;

(2) Narbdeshwar Misra v. District Inspector of Schools, Deoria, 1982 UPLBEC 171; and

(3) Soloman Morar Jha v. District Inspector of Schools, Deoria, 1985 UPLBEC 113."

The Full Bench has also considered the provisions of the U.P. Secondary Education Services Selection Board Act in the following terms:

"29. A somewhat similar situation had arisen under the provisions of the U.P. Secondary Education Service Selection Board Act, 1982. That Act was enacted to establish a Secondary Education Service Commission for the selection of teachers in institutions recognized under the Intermediate Education Act, 1921. The expression 'teacher' was defined to include a principal. Section 16 provided that subject to the provisions of Sections 18 and 33 and certain other sections, every appointment of a teacher upon the commencement of the Act would be made by the management only on the recommendation of the Commission and an appointment made in contravention of the provisions would be void. Section 18 dealt with ad hoc appointments of teachers. Since the provisions of Section 16 were made subject to Section 18, ad hoc appointments could be validly made under Section 18. However, after the enactment of U.P. Act 1 of 1993, Section 16 was substituted and Section 18 of the Principal Act was sought to be deleted. Section 33 empowered the State Government to issue and notify Orders for removing any difficulty, during such period as may be specified in the Order, whereupon the provisions of the Act would have effect subject to adaptations whether by way of modification, addition or omission. Two notified Orders were issued under Section 33 (1). Neither of the two Orders provided for any time limit during which the orders would remain effective.

30. These provisions came up for consideration before a Full Bench of this Court in Radha Raizada v. Committee of Management, Vidyawati Darbari Girls Inter College, 1994 (2) ESC 345 (All)(FB). Dealing with the situation, the Full Bench held as follows:

"...After enforcement of U.P. Act No.1 of 1993 except Section 13 thereof the situation that emerges is that by new Section 11 of Amendment Act which has substituted Section 16 of the Principal Act, has come into force whereas the omission of Section 18 from the principal Act by Section 13 of this amending Act has not been enforced which means Section 18 still continues in the Principal Act. In view of this legislative development a peculiar situation has arisen that new Section 16 which has come into force is no longer subject to Section 18 of the Act which means that no appointment on ad hoc basis can be made under Section 18 of the Act. New Section 16 begins with a non-obstante clause which means in spite of other provision, no appointment shall be made except on the recommendation of the Board. Where a section begins with a non-obstante clause, it indicates that the provision should prevail despite anything to the contrary in the provisions in the Act. Thus after omission of Section 18 from Section 16 no ad hoc appointment is permissible under Section 18 and if made, would be void under sub-section (2) of Section 16 of the Act. It has not been brought to my notice that First Removal of Difficulties Order 1981 issued by the State Government has either been revoked or rescinded. On the contrary, it was asserted that the said Removal of Difficulties Order is continuing.

49. Now the question for consideration is that if no ad hoc appointment of teacher or Principal can be made under Section 18 of the Act, whether it is permissible to appoint a teacher or Principal on ad hoc basis under the First Removal of Difficulties Order? A perusal of Section 16 would show that Section 16 is still subject to Section 33 of the Act which empowers the State Government to issue Removal of Difficulties Order. Since Removal of Difficulties Orders have been issued under Section 33 of the Act, an ad hoc appointment either by direct recruitment or by promotion under the Removal of Difficulties Order would be a valid appointment."

31. Hence, the Full Bench took the view that even after the omission of a reference to the provisions of Section 18 in Section 16 following U.P. Act 1 of 1993, since Section 16 was still subject to Section 33, ad hoc appointments could be made both under the First and Second Removal of Difficulties Orders that had been issued under Section 33."

The answer of the Full Bench to the reference is in the following terms:

"57. We, accordingly, dispose of the reference in the following terms:

(i) The decision in Daljeet Singh (supra) does not lay down the correct position in law; and

(ii) An officiating principal appointed under the Statutes of the University, which are pari materia to the provisions of Statute 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.

58. The reference before the Full Bench is accordingly disposed of. The proceedings shall now be placed before the regular Bench in accordance with the roster of work for disposal in the light of this judgment."

Relevant, it would be to mention that recently the Director of Education (Secondary), U.P., Lucknow has issued an order dated 25th August, 2015 to all the District Inspector of Schools of the State directing them to appoint the senior-most Assistant Teacher/ Lecturer as officiating Principal of the institutions, where the office of the Principal is vacant, and to grant them the salary of the Principal. The order dated 25th August, 2015 reads as under:

"lwPp gS fd tuizfrfuf/k;ksa ,oa ek/;fed fo|ky;ksa ds lsok la?kksa ds izfrfuf/k;ksa }kjk ;g laKku esa yk;k x;k gS fd v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa ekSfyd :i ls fjDr iz/kkuk/;[email protected]/kkukpk;Z ds in ij laLFkk ds T;s"Bre [email protected];s"Bre izoDrk ds LFkku ij dfu"B [email protected]"B izoDrk ds gLrk{kj izekf.kr fd;s tkrs gSaA

2- vki voxr gh gaS fd mRrj izns'k ek/;fed f'k{kk lsok p;u cksMZ vf/kfu;e] 1982 ¼;Fkkla'kksf/kr½ dh /kkjk&18 esa izko/kku fd;k x;k gS fd /kkjk 10 dh mi/kkjk&1 esa fd;s x;s izko/kkuqlkj cksMZ dks fjfDr dh lwpuk fn;s tkus ,oa iz/kkuk/;[email protected]/kkukpk;Z dk in okLro esa 02 ekg ls vf/kd fjDr gksus dh fLFkfr esa laLFkk ds iz/kkuk/;[email protected]/kkukpk;Z ds in ij laLFkk ds T;s"Bre [email protected];s"Bre izoDrk dh rnFkZ inksUufr laLFkk izcU/kra= }kjk dh tk;sxhA mijksDr /kkjk esa ;g Hkh izko/kku fd;k x;k gS fd tgka izcU/kra+= T;s"Bre [email protected];s"Bre izoDrk dks rnFkZ :i ls inksUufr djus esa foQy jgs ogka fujh{kd ,sls [email protected] dh inksUufr vkns'k Lo;a tkjh djsxk ,oa lEcfU/kr [email protected] tc inksUufr ds ,sls vkns'k ds vuqlj.k esa in dk dk;ZHkkj xzg.k djsa] iz/kkuk/;[email protected]/kkukpk;Z ds :i esa vius osru dk gdnkj gksxkA

3- mijksDr izko/kkuksa ds vkyksd esa f'k{k.k laLFkk esa iz/kkuk/;[email protected]/kkukpk;Z dk in ekSfyd :i ls fjDr gksus dh fLFkfr esa laLFkk ds dfu"B [email protected]"B izoDrk ds gLrk{kj dk;Zokgd iz/kkuk/;[email protected] dk;Zokgd ds :i esa izekf.kr fd;k tkuk lUnfHkZr vf/kfu;e ds loZFkk foijhr gSA

4- vr% vkidks funsf'kr fd;k tkrk gS fd vf/kfu;e O;oLFkkuqlkj dk;Zokgh fd;k tkuk lqfuf'pr djsaA vf/kfu;e ds izko/kkuksa ds foijhr dk;Zokgh gsrq vki Lo;a mRrjnk;h gksaxs ,oa vkidk mDr vkpj.k mRrj izns'k jktdh; deZpkjh fu;ekoyh] 1956 ds vkpj.k fu;e&3 ds foijhr gksus ds vk/kkj ij vkids fo:) vuq'kklfud dk;Zokgh lafLFkr fd;s tkus gsrq 'kklu ls vuqjks/k djus dh iz'kkldh; ck/;rk gksxhA vk'kk gS fd vki ,slh v:fpdj fLFkfr mRiUu ugha gksus nsaxsA "

Thus, the stand taken by the District Inspector of Schools that the petitioner was not appointed as an ad hoc Principal in terms of Section 18 of the Act, 1982 is completely misconceived and misleading.

As regards the proceedings against the petitioner, this Court has already set aside the reversion of the petitioner from the post of officiating Principal to Lecturer in Writ-A No. 49138 of 2015 (supra) vide order dated 09th September, 2015, as quoted above.

In the counter affidavit there is no averment that the Uttar Pradesh Secondary Education Services Selection Board9 has subsequently affirmed the punishment of the petitioner under Section 21 of the Act, 1982.

From the background of the facts, I am satisfied that the decision of the District Inspector of Schools is accentuated by malice. The Supreme Court has differentiated the legal malice and malice of fact. The sequence of the facts clearly demonstrates that the action of the District Inspector of Schools is suffered by legal malice.

In the case of Kalabharati Advertising v. Hemant Vimalnath Narichania and others10, the Supreme Court has considered the words "legal malice" or "malice in law" and held as under:

"25. The State is under obligation to act fairly without ill will or malice--in fact or in law. "Legal malice" or "malice in law" means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for "purposes foreign to those for which it is in law intended". It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts.(Vide ADM, Jabalpur v. Shivakant Shukla11, S.R. Venkataraman v. Union of India12, State of A.P. v. Goverdhanlal Pitti13, BPL Ltd. v. S.P. Gururaja14 and W.B. SEB v. Dilip Kumar Ray15)."

In Kalabharati Advertising (supra) the Supreme Court has followed its earlier decision in Punjab State Electricity Board Ltd. v. Zora Singh and others16, where the malice in the legal sense has been explained by the Court. Relevant parts of the judgment in Punjab State Electricity Board Ltd. (supra), being paragraphs- 40, 41 & 42, are extracted below:

"40. Furthermore, there cannot be any doubt whatsoever that even if an order is found to be not vitiated by reason of malice on fact but still can be held to be invalid if the same has been passed for unauthorised purposes, as it would amount to malice in law.

41. In S.R. Venkataraman v. Union of India17 this Court observed: (SCC p. 494, para 5)

"It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is, however, quite different. Viscount Haldane described it as follows in Shearer v. Shields18:

'A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.'

Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause."

42. In State of A.P. v. Goverdhanlal Pitti19 this Court observed: (SCC p. 744, paras 12-13)

"12. The legal meaning of malice is 'ill-will or spite towards a party and any indirect or improper motive in taking an action'. This is sometimes described as 'malice in fact'. 'Legal malice' or 'malice in law' means 'something done without lawful excuse'. In other words, 'it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others'. (See Words and Phrases Legally defined, 3rd Edn., London Butterworths, 1989.)

13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in his authoritative work on Administrative Law (8th Edn., at p. 414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seeks to 'acquire land' 'for a purpose not authorised by the Act'."

(See also Chairman & MD, BPL Ltd. v. S.P. Gururaja20 and P. Anjaneyulu v. Chief Manager, A.P. Circle, Bharat Sanchar Nigam Ltd.21)"

On the analysis of the above principle I am of the opinion that the stand taken by the second respondent in his counter affidavit is suffered by malice in law.

It is astonishing that the District Inspector of Schools, being a senior official in education department, is totally unaware about the well settled law laid down by this Court and the order issued by the Director of Education. It is a common experience of the Court that the Government officers in general and officials of education department in particular disregard the well-settled law of this Court and try to justify their orders even after their order is set aside by the Court, on the pretext of some Government Order or circular of the department. The Supreme Court has noticed this tendency of the officials in the case of E.T. Sunup v. C.A.N.S.S. Employees Association and another22. The relevant paragraph of the judgment is as under:

"16. It has become a tendency with the government officers to somehow or the other circumvent the orders of court and try to take recourse to one justification or other. This shows complete lack of grace in accepting the orders of the Court. This tendency of undermining the Court's order cannot be countenanced. This Court time and again has emphasised that in a democracy the role of the court cannot be subservient to administrative fiat. The executive and legislature have to work within the constitutional framework and the judiciary has been given the role of watchdog to keep the legislature and executive within check...."

The said judgment has been followed by the Supreme Court in the case of Maninderjit Singh Bitta v. Union of India and others23.

If such an official/officer is allowed to continue, his ignorance of law will be oppressive for the teaching and non-teaching staff of the institutions and will also burden this Court by unnecessary litigations. Public time will be wasted in such litigations.

After careful consideration of the matter, I am of the view that the ends of justice would be subserved by issuing a direction upon the Joint Director of Education, Mirzapur to consider the grievance of the petitioner about his salary of the officiating Principal in the principal's grade. The petitioner is at liberty to file a fresh representation before the Joint Director of Education, who shall pass the order in the light of the observations made herein-above within two months from the date of communication of this order.

As regards the impleadment application of the Committee of Management is concerned, from the record it appears that the term of the Committee of Management is over and there is a litigation between two rival fractions. One of the fractions has filed its counter affidavit along with the impleadment application. I have carefully perused the contents of the counter affidavit and have taken note of several facts in the order.

A copy of this order be sent to the Secretary, Secondary Education, Govt. of U.P., Lucknow to consider the suitability of the District Inspector of Schools, Mirzapur, who appears to be completely ignorant of the law laid down by this Court and the orders issued by the State Government. It goes without saying that the Secretary shall furnish opportunity to the District Inspector of Schools before taking appropriate decision in accordance with law.

Accordingly, the writ petition is disposed of.

No order as to costs.

Order Date :- 24.11.2015

SKT/-

Civil Misc. Exemption Application No. 397913 of 2015

Case :- WRIT - A No. - 58665 of 2015

Petitioner :- Ram Raseeley Pandey

Respondent :- State Of U.P. & 2 Others

Counsel for Petitioner :- D.K. Pandey

Counsel for Respondent :- C.S.C.,Pankaj Kumar Srivastava

Hon'ble Pradeep Kumar Singh Baghel,J.

The exemption application is allowed.