Allahabad High Court
Smt. Sarika Jain vs State Of U.P. And 4 Others on 19 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:83085
RESERVED
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
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WRIT - A NO. 14841 OF 2024
Smt. Sarika Jain ....Petitioner
Versus
State of Uttar Pradesh and others ....Respondents
Appearance :-
For Petitioner : Mr. Arvind Srivastava-III, Adv.
For Respondents : Mr. Sharad Chandra Upadhyay, Standing Counsel for respondent nos. 1 to 4
HON'BLE J.J. MUNIR, J.
This writ petition is directed against the order of the District Inspector of Schools-II, Saharanpur1 dated 24.08.2024, refusing to sanction salary to the petitioner for the post of an Officiating Principal. The petitioner has sought a mandamus, commanding the DIOS to ensure payment of her salary for the post of Officiating Principal held by her from 01.04.2022 until date and pay the same continuously, till a regularly selected incumbent joins the post.
2. The petitioner was appointed as an Assistant Teacher with the Institution known as Chamanlal Digambar Jain Girls' Inter College, Rampur Maniharan, Saharanpur on 24.09.2015. Chamanlal Digambar Jain Girls' Inter College2 is a recognised and aided institution - recognised under the Uttar Pradesh Intermediate Education Act, 19213 and aided under the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 19714. The Institution has been declared a minority institution by the State Government. According to the petitioner, there are sixteen posts sanctioned for the Institution, which comprise a Principal, seven L.T. and C.T. Grade Teachers, an Assistant Clerk and seven Class IV employees.
3. One Smt. Nirmala Rathi, who was officiating as the Principal of the Institution, retired on 31.03.2022, leading to a vacancy in the Office of the Principal. The Committee of Management of the Institution passed a resolution prior to Rathi's retirement, that is to say, on 27.03.2022, to fill up the post of a Principal and resolved to appoint the petitioner, being the seniormost Assistant Teacher, as the Officiating Principal. The said proposal was sent to the DIOS for approval. Upon Rathi's retirement, the petitioner submitted her joining report on 01.04.2022, and the Manager of the Institution handed over charge to the petitioner on the said date. The DIOS approved the orders for the petitioner's appointment as the Officiating Principal of the Institution vide order dated 05.04.2022. The petitioner has been officiating eversince from 01.04.2022, but has not been paid, as she says, her emoluments as the Officiating Principal. She is still receiving the salary of an Assistant Teacher.
4. The petitioner represented her case to the DIOS on 08.08.2024. She says that bearing in mind the provisions of Sections 30 and 31 of Act No. 15 of 2023, the Act of 1921 would govern her tenure as the Officiating Principal. She submits that under Regulation 2(3) of Chapter II of the Regulations framed under the Act of 1921, any incumbent, who officiates for more than 30 days, is entitled to salary attached to the post of the Principal. The DIOS, upon receipt of the petitioner's representation, sought clarification from the Finance & Accounts Officer (Secondary), Office of the District Inspector of Schools, Saharanpur5. The Finance & Accounts Officer has opined that an Assistant Teacher, who is given the charge of the Officiating Principal, in case of a minority institution, is not entitled to receive emoluments payable to the Principal for the period of officiation.
5. The impugned order dated 24.08.2024 is entirely founded on the opinion of the Finance & Accounts Officer dated 23.08.2024 and the petitioner says that the order of the DIOS is also bad, amongst other more serious flaws, because it suffers from non-application of mind and mechanically translates the opinion of the Finance & Accounts Officer into an order of her own.
6. Aggrieved by the impugned order, the present petition under Article 226 of the Constitution has been instituted.
7. A notice of motion was issued by the Court vide order dated 23.10.2024. The parties having exchanged affidavits, this petition was admitted to hearing, which proceeded forthwith. Judgment was reserved.
8. Heard Mr. Arvind Srivastava-III, learned Counsel for the petitioner in support of this petition and Mr. Sharad Chandra Upadhyay, learned Standing Counsel appearing on behalf of respondent Nos. 1 to 4. No one appeared on behalf of respondent No. 5, the Management of the Institution.
9. Upon hearing learned Counsel for parties, we find that there is no doubt that the DIOS has not applied her mind and mechanically translated, into an order of hers, the opinion of the Finance and Accounts Officer (Secondary). The DIOS, who is the competent authority under the law to decide the petitioner's claim, ought have done it herself and not acted virtually like a rubber-stamp or a post office, to mechanically approve the opinion of the Finance & Accounts Officer in her office.
10. Nevertheless, we think that the matter requires to be considered on merits, because the opinion of the Finance & Accounts Officer, which the DIOS has mechanically accepted, appears to be utterly flawed and contrary to the authority of this Court, settled across decades. So far as the principles generally applicable to recognised and aided intermediate educational institutions are concerned, the view of this Court has always been that Regulation 2(3) of Chapter II of the Regulations framed under the Act of 1921 entitles the Officiating Principal to the Principal's salary and emoluments, if he/she works for any period of time beyond 30 days. This position of the law is well settled, in view of the authority of this Court in Dhaneshwar Singh Chauhan v. District Inspector of Schools, Ballia6. This view of the law was followed in Narbdeshwar Misra v. District Inspector of Schools, Deoria and others7. It was later on followed in Soloman Mora Jha v. District Inspector of Schools, Deoria and others8. In Soloman Morar Jha (supra), the principle was extended to minority institutions as well, which did not fall under the purview of the Uttar Pradesh Secondary Education (Services Selection Board) Act, 19829, and had the freedom to make their own appointments by virtue of Section 16-FF if the Act of 1921. The principle, that Regulation 2(3) of Chapter II of the Regulations framed under the Act of 1921 applies to a minority institution as well, was followed by this Court in Dr. Mohammad Haseeb Khan v. State of U.P. and others10, where it has been held :
District Inspector of Schools in the present case has totally misdirected himself on the front when he has proceeded to refuse salary to the petitioner as under the provision of U.P. Act No. II of 1921 and the Regulations framed thereunder Chapter II Regulation 2(3) an incumbent is entitled for salary and legal position on the subject has been clarified in the case of Dhaenshwar Singh Chauhand Vs. District Inspector of Schools Badaun reported in 1980 UPLBEC 236. In the context of Chapter II Regulation 2(3) of U.P. Act No. II of 1921 again this Court has taken the view that senior most teacher appointed as Officiating Principal of the institution, on the retirement of permanent principal is entitled for salary in Principal's Grade in the case of Narbdeshwar Misra Vs. District Inspector of Schools, Deroria & others reported in 1982, UPLBEC, 171 where arrangement has been made for more than 30 days on the post of Principal in that event the incumbent is entitled for salary on the post of Principal. This Court, in the case of Solommon Morar Jha Vs. District Inspector of Schools , 1985 UPLBEC 113, has reiterated the principle, that where senior most Lecturer has been performing the duties and functions of Principal, he is entitled to salary in the Principal's grade and the provision of Chapter II Regulation 2(i) and its proviso, do not prohibit payment of salary, even if the institution is a minority institution. Same principals are liable to be extended in the present case.
11. Soloman Morar Jha and Dr. Mohammad Haseeb Khan (supra) have long refused to accept the principle that Regulation 2(3) of Chapter II of the Regulations framed under the Act of 1921 does not apply to minority institutions, and extended the benefit of the provision to approve payment of salary of the Principal to officiating incumbents who work beyond 30 days. The question recently arose in the context of a Jain minority institution in Vakil Chand Jain v. State of U.P. and others11. In Vakil Chand Jain (supra), after noticing the holding of the full Bench in Jai Prakash Narayan Singh v. State of U.P. and others12, Dhaneshwar Singh Chauhan (supra), Narbdeshwar Misra (supra) and Soloman Morar Jha, my esteemed Brother Donadi Ramesh held :
18. It is also not in dispute that while granting the said benefit to the petitioner, the District Inspector of Schools, Baghpat has given opportunity of hearing and by verifying the record of the Institution. While passing the impugned order dated 20.06.2019, no such opportunity was given to the petitioner and there is no denial in the counter affidavit filed by the State-respondents. Apart from the said fact, it is also not in dispute that the said issue was considered by this Court way back in 1979 in the case of Dhaneshwar Singh Chauhan (supra). In 1985, the core issue with regard to the applicability of the Rules to the minority Institution and entitlement of the person who officiates to the post of the Principal in the minority Institution was also decided in the case of Soloman Morar Jha (supra). All the judgments were taken into account by the Full Bench of this Court in the case of Dr. Jay Prakash Narayan Singh (supra) wherein it has been categorically held that the officiating Principal is entitled for payment of salary in the Principal's grade, for the period during which he / she worked.
19. In view of the aforesaid law laid down by the Full Bench of this Court and also the principles laid down in the case of Soloman Morar Jha (supra), the impugned order is not only contrary to the principles of natural justice but also the law declared by this Court. Hence the impugned order dated 20.06.2019 passed by the District Inspector of Schools, Baghpat is set aside, with direction to the District Inspector of Schools, Baghpat, to release the deducted salary of the petitioner forthwith.
(emphasis by Court)
12. In the present case, neither in the order impugned nor the opinion given by the Finance & Accounts Officer, which has been mechanically echoed by the DIOS, is there a case that the petitioner has not actually worked as the Officiating Principal for the period claimed or that she is not discharging those duties. A specific assertion in this behalf has been made in Paragraph No. 15 of the writ petition. There is no denial of the fact in Paragraph No. 32, which answers Paragraph No. 15, or elsewhere in the counter affidavit filed on behalf of the Finance & Accounts Officer. Likewise is the position in the counter affidavit filed on behalf of the DIOS, where too, the fact asserted in Paragraph No. 15 of the writ petition has not been denied, that the petitioner has been appointed as the Officiating Principal and discharging those duties since 01.04.2022. The stand of the Finance & Accounts Officer as well as the DIOS in the counter affidavit is unanimous, and, that is, Chapter II, including Regulations 2(1) and 2(3) of the Regulations framed under the Act of 1921, do not apply to institutions not governed by the Act of 1982 (as amended). The Act of 1982 would not apply to a minority institution, and therefore, the respondents say that Regulations 2(1) and 2(3) of Chapter II also would not apply, entitling the petitioner to the salary of a Principal for the period of her officiation. The other objection seems to be based on a reading of the provisions of Regulation 2(3) of Chapter II of the Regulations aforesaid, about which, it is said that on its plain terms, prohibits payment of salary attached to the post of a Principal to a Teacher, who is permitted to officiate, by virtue of Regulation 2(3). Unfortunately for the respondents, both the questions are no longer res integra and stand settled against them.
13. During the course of arguments, it was pointed out by Mr. Sharad Chandra Upadhyay, learned Standing Counsel, that the approval in the petitioner's case was granted by the DIOS, subject to the condition that she would discharge the duties of the Officiating Principal, for which, no additional emoluments would be payable to her. Mr. Upadhyay submits that the petitioner's case is, therefore, distinguishable on the principles from the authorities, that we have hitherto noticed, to reach a conclusion in the petitioner's favour. We find the submission in this regard, advanced on behalf of the State, utterly untenable. The reason is that if a right flows in favour of a party from the operation of a statute, in this case, Regulation 2(3) of Chapter II of the Regulations framed under the Act of 1921, a condition carried in the order, granting approval to the officiating appointment, would not derogate from the terms of the statute to disentitle the petitioner, or anyone else for that matter, to an advantage that the law prescribes.
14. It is argued by Mr. Sharad Chandra Upadhyay, learned Standing Counsel that in Smt. Savita Gupta v. State of U.P. and others13, a case similar to the petitioner's claim for payment of salary of the Principal for the period of officiation was accepted by the learned Single Judge, against which, Special Appeal No. 69 of 2022 is pending. The mere pendency of an appeal does not change the settled position of the law, which runs contrary to the respondents' stand.
15. In the result, the writ petition succeeds and stands allowed. The impugned order dated 24.08.2024, passed by the DIOS is hereby quashed. A mandamus is issued to the Regional Joint Director of Education, Saharanpur Region, Saharanpur, the District Inspector of Schools-II, Saharanpur and the Finance & Accounts Officer (Secondary), Office of the District Inspector of Schools, Saharanpur to ensure, amongst themselves, payment of salary and all emoluments attached to the post of a Principal, together with arrears with effect from 01.04.2022 until date. The current salary of the post of the Principal shall be paid to the petitioner until such time that she officiates as the Principal. The arrears shall be paid within six weeks of the date of receipt of a copy of this order.
16. There shall be no order as to costs.
17. The Registrar (Compliance) is directed to communicate this order to the Regional Joint Director of Education, Saharanpur Region, Saharanpur, the District Inspector of Schools-II, Saharanpur, and the Finance & Accounts Officer (Secondary), Office of the District Inspector of Schools, Saharanpur, all through learned Chief Judicial Magistrate, Saharanpur.
Allahabad
May 19, 2025
I. Batabyal
(J.J. MUNIR)
JUDGE
Whether the order is speaking : Yes
Whether the order is reportable : No
