Mohd. Shahedeen vs State Of U.P. And 3 Others
2022 Latest Caselaw 16236 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- WRIT - A No. - 26598 of 2018
 

 
Petitioner :- Mohd. Shahedeen
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Jamil Ahamad Azmi,Adarsh Bhushan
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikram D. Chauhan,J.

Heard learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.

Learned counsel for the petitioner submits that the petitioner is the senior most Teacher in the respondent institution and when regular Principal retired on 30th June, 2015, the petitioner being the senior most Teacher was appointed as the Officiating Principal and the petitioner joined on 1st July, 2015. The signature of the petitioner was attested vide order dated 13th August, 2015 of the District Inspector of Schools, Azamgarh. However, the claim of the petitioner for salary of the Officiating Principal has been rejected by means of the impugned order dated 31st October, 2018.

Learned counsel for the petitioner submits that the present controversy is squarely covered by a judgment passed by this Court in the case of Shanti Kumari Tiwari Vs. State of U.P. and others (Writ-A No.2631 of 2019) decided on 10th November, 2020, which has been passed by taking into consideration the judgment of the Full Bench of this Court in Dr. Jai Prakash Narayan Vs. State of U.P. and others, 2014 (8) ADJ 617 (FB).

He submits that in view of the law laid down by the Full Bench in Dr. Jai Prakash Narayan (supra), the Officiating Principal is entitled to claim payment of salary for the regular post of Principal for the period he has worked as Principal.

This Court in the case of Shanti Kumari Tiwari (supra) has held that:-

"The Court also notes that a similar controversy fell for consideration before a learned Judge in Ram Raseeley Pandey Vs. State of U.P. and 2 Others (Writ -A No. -58665 of 2015), where it was held as under:

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 others. 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 others 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 others 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., 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 others 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."

In view of the aforesaid and since learned counsel for the respondents fairly concede to the settled legal position on the subject, the Court finds itself unable to sustain the order impugned.

The writ petition is accordingly allowed. The impugned order dated 13 January 2017 is hereby quashed. The petitioner shall be entitled to all consequential reliefs."

Learned Standing Counsel submits that the controversy in question stands decided by the judgment passed in the case of Shanti Kumari Tiwari (supra) and the judgment of the Full Bench in the case of Dr. Jai Prakash Narayan (supra). The view taken by the learned Single Judge while relying upon the Full Bench judgment is a correct view and the matter can be disposed of in view of the law laid down by this Court in the aforesaid cases.

Considering the facts and circumstances of the case, the submissions advanced by the learned counsel for the parties and the law laid down by this Court in the cases of Shanti Kumari Tiwari (supra) and Dr. Jai Prakash Narayan (supra), the impugned order dated 31st October, 2018 passed by District Inspector of Schools, Azamgarh-respondent no.3 is hereby set aside. The writ petition is allowed. The petitioner shall be entitled to all consequential reliefs as may be admissible under law.

Order Date :- 9.11.2022

Bhaskar