Rajendra Prasad Singh vs State Of U.P. Thru ...
2017 Latest Caselaw 1316 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 7			                                      AFR                
 
Case :- SERVICE SINGLE No. - 9395 of 2017
 
Petitioner :- Rajendra Prasad Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Secondary Edu.Civil Sectt.& Ors
 
Counsel for Petitioner :- Sudhir Kumar Singh,Rajeev Kr. Singh
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Rajan Roy,J.

Heard.

The petitioner herein worked as ad-hoc Principal of the respondent institution w.e.f. 19.3.2011 till 31.3.2016 when he retired from service. He approached this Court seeking salary of the post of Principal of the Intermediate College where he had rendered services on ad hoc basis by means of Writ Petition No. 2186 (S/S) of 2015, which was disposed of on 7.5.2015 while he was still in service with a direction to the D.I.O.S. to take a decision in the matter. The D.I.O.S. fixed the salary of the petitioner vide order dated 6.7.2015 (Annexure 8 to the writ petition) by which the claim of the petitioner to salary, i.e., pay scale of Rs. 21,900+7600 = Rs.29,500/- was declined, instead the pay was fixed as 18330 + 720+ 7600= Rs.26650/-. This order was put to challenge by the petitioner by means of Writ Petition No. 4358 (S/S) of 2015. This Court vide judgement dated 1.12.2016 quashed the order dated 6.7.2015 on the ground that it was a cryptic order, however, liberty was granted to pass a fresh order. Thereafter, the impugned order dated 24.4.2016 had been passed reiterating the fixation of the pay of the petitioner as made earlier by the order dated 6.7.2015.

The contention of the counsel for the petitioner is that the pay of the post of Principal is Rs.21,900/- and the grade pay is 7600. Thus, the salary payable is 29,500/-, but the respondents are repeatedly fixing the salary erroneously, that too, in the teeth of the judgment of this Court dated 9.7.2014 rendered in Writ Petition No. 6518 (S/S) of 2012.

On the other hand, Sri K.K. Shukla, learned Standing Counsel and Sri Anant Kumar, Finance and Accounts Officer, Balrampur has vehemently asserted that the pay referred by the petitioner is payable to a direct recruit and not to a promotee.h As far as a promotee is concerned, the pay has to be determined in terms of G.O. dated 24.2.2012 read with Paragraph 11 of the G.O. dated 8.12.2008 referred therein, according to which, the promotional pay payable to the petitioner is to be arrived at by taking the pay band which is Rs.18330/- which he was getting at the time of becoming ad-hoc Principal plus the existing grade pay which was 5400 and the total comes to Rs.23730/-. Further, 3% of this total amount, on being rounded off, as mentioned in Para 11 (1), comes to Rs.720/-. Thus, the amount of Rs.720/- is to be added as an increment to the pay, i.e. Rs.18330/-, which comes to Rs.19050/-, to which the grade pay of Rs. 7600/- of the post of Principal is to be added which comes to Rs.26650/-. This is how the salary is to be fixed and has been fixed by the impugned order which does not suffer from any error. In saying so the learned counsel for the State and the officer, who are present, have missed the woods for the trees.

Section 18 of the Uttar Pradesh Secondary Education Services Commission and Selection Boards Act, 1982(hereinafter referred to as the ''Act 1982' reads as under:

"18. Ad hoc Principals or Head Masters-(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 the 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) or sub-section (2) shall cease to have effect from when the candidate recommended by the Board joins the post."

It is not in dispute that the post of Principal of an Intermediate College such as the one involved herein has to be filled by way of direct recruitment under Section 10 of the Act 1982 read with the relevant Rules in this regard, which is to take place after a requisition is sent and a selection is held by the Board. As this takes time, therefore, a temporary arrangement has been made by ad hoc promotion of senior most teacher in the Lecturer grade under Section 18 of the Act 1982, otherwise, there is no channel of regular promotion to the post of Principal of an Intermediate College. The claim of the petitioner herein is that as he performs the duty of a higher post of Principal, therefore, he should get the salary of the said post. In this view of the matter, even if the post is of direct recruitment, but the petitioner even on ad hoc promotion, is entitled to get the salary attached to the said post. It is not in dispute that the post carries with it the pay in the pay band III as per the 6th pay commission revised scale and corresponding grade pay of Rs.7600/-, meaning thereby, when a direct recruit is appointed and joins on the post, he will get the salary calculated as pay 21,900 + grade pay 7600 =Rs.29500/-. Thus, this is the salary of the post of Principal of an Intermediate College, as it is a post of direct recruitment.

In these circumstances, the reliance placed by the respondents upon the G.O. dated 24.2.2012 and Para 11 of the G.O dated 8.12.2008 is mis-placed as those Government Orders are general orders issued for fixing the pay / salary in matters of promotion meaning thereby, in such cases where regular promotion is prescribed to a post under the Rules by way of a channel provided therein. As already observed earlier, the Lecturer of an Intermediate College does not have a channel of regular promotion to the post of Principal. It is only an ad-hoc arrangement made on a post which is to be filled by direct recruitment. It is for this reason another Single Judge Bench of this Court while deciding Writ Petition No. 6518 (S/S) of 2012 on 9.7.2014 observed that a promotee cannot be denied the salary of a regular Principal and even held that anything contrary to the G.O. dated 24.2.2012 to the statutory Rules, i.e., Section 18 of the Act 1982, would be ultravires. This Court is of the view that the aforesaid G.O. being a general Government Order is applicable consequent to the revised pay scale as per the Sixth Pay Commission recommendations and for its implementation cannot be termed as ultra vires, but, the same is not applicable in the matter of payment of fixation and payment of salary of the post of Principal of an Intermediate College in the event of ad hoc promotion under Section 18 of the Act 1982, for the reasons aforesaid, as it is a post of direct recruitment.

It is also not out of place to mention that under sub Section 3 of Section 18, on such ad hoc promotion, the promotee is entitled to get his salary as Principal or head master, meaning thereby the salary of the said post which in the present context is Rs.29500/-.

Considering the delay on account of erroneous fixation of pay, inspite of the judgments in the case of the petitioner, petitioner shall be entitled to interest at the rate of 6% per annum on the difference of salary as the respondents misread and misunderstood the factual and legal position which had already been clarified vide judgment dated 9.7.2014 passed in Writ Petition No. 6518 (S/S) of 2012 , therefore, there was no occasion to take different view in the matter.

In view of the above, the respondents have erred in relying upon the aforesaid Government Orders and have erroneously fixed the salary of the petitioner. Even though the petitioner has retired, but he has been litigating since long for his rightful claim, therefore, for the reasons aforesaid firstly the order impugned is hereby quashed. Secondly, a direction is issued to the concerned officials to refix the salary payable to the petitioner for the period he has worked as ad hoc Principal of the respondent Intermediate College, keeping in mind the observations made hereinabove meaning thereby the salary payable, i.e., Rs.29500/- per month. The calculation shall be made within one month of receipt of certified copy of this order and the difference of the amount shall be paid to the petitioner within the next two months. The writ petition stands allowed in the aforesaid terms.

Order Date :- 29.5.2017/Akanksha