Allahabad High Court
Dr. Jai Prakash Narayan Singh vs State Of U.P. And 4 Others on 26 September, 2014
Bench: Dilip Gupta, Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Misc Writ Petition No 23627 of 2014 Dr Jai Prakash Narayan Singh Vs State of U P & Ors With Civil Misc Writ Petition No 47968 of 2011 Dr Tilak Raj Chauhan Vs State of U P & Ors With Civil Misc Writ Petition No 28975 of 2014 Dr Devendra Kumar Dwivedi Vs State of U P & Anr With Civil Misc Writ Petition No 68560 of 2013 Dr Krishna Autar Gupta Vs State of U P & Ors With Civil Misc Writ Petition No 18408 of 2012 Dr Babu Lal Tiwari Vs State of U P & Ors With Civil Misc Writ Petition No 69744 of 2013 Dr Rama Pati Tripathi Vs State of U P & Ors With Civil Misc Writ Petition No 22324 of 2012 Dr Udai Pratap Singh Vs State of U P& Ors Appearance:
For petitioners : Mr Sanjeev Singh, Advocate Ms Durga Tewari, Advocate Mr A N Pandey, Advocate For respondents : Mr R C Upadhyay, CSC Hon'ble Dr Dhananjaya Yeshwant Chandrachud, Chief Justice Hon'ble Dilip Gupta, J Hon'ble Suneet Kumar, J (By Hon'ble Dr D Y Chandrachud, C J) The present reference to the Full Bench has been occasioned by a referring order dated 29 April 20141. The reference primarily involves a construction of the provisions of the Uttar Pradesh State Universities Act, 1973 and the Uttar Pradesh Higher Education Services Commission Act, 1980 together with the Statutes which govern the State Universities. The Division Bench has referred the following questions for consideration by the Full Bench:
1. Whether there is a conflict between the ratio of the decisions in the cases of Daljeet Singh Vs State of U P2 and Om Saran Tripathi Vs State of U P3 and if so, which of the views lays down the law correctly; and
2. Whether an officiating Principal appointed under Statute 10.20 of Purvanchal University, is entitled to claim payment of salary in the regular grade of the Principal or not.
Essentially, the issue is whether a teacher who is appointed to officiate as principal on the permanent post of a principal falling vacant in a college affiliated to a State University, is entitled to the pay scale and grade of a regular principal.
In the following decisions, Division Benches of this Court directed the payment of salary drawn by a principal to an officiating principal of a degree college:
(1) Durga Prasad Dwivedi Vs Director of Higher Education4. This judgment was referred to and followed in
(i) Raghu Nath Mishra Vs State of U P5;
(ii) Anand Prakash Tyagi Vs State of U P6; and
(iii) Madan Gopal Mittal Vs State of U P7;
(2) Paras Nath Pandey Vs District Inspector of Schools8;
(3) Dr Govind Nath Niranjan Vs District Inspector of Schools, Jalaun at Orai9; and (4) Om Saran Tripathi Vs State of U P10.
However, in Daljeet Singh (supra), a Division Bench of this Court held that under the Statutes of the University, the senior most teacher is not appointed as officiating principal but is only permitted to discharge the duties of a principal. In coming to this conclusion, the Division Bench placed reliance on the following decisions of Division Benches of the Court:
(1) Sheo Shanker Tripathi Vs Director of Education (Sanskrit), U P Allahabad11; and (2) Vijay Rani Vs Regional Inspectress of Girls Schools, Region I, Meerut12.
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 Vs District Inspector of Schools, Budaun13;
(2) Narbdeshwar Misra Vs District Inspector of Schools, Deoria14; and (3) Soloman Morar Jha Vs District Inspector of Schools, Deoria15.
A conflict of decisions has arisen. That, the Full Bench is called upon to resolve.
For convenience of analysis, we propose to divide this judgment into following sections:
(I)Section A - Relevant provisions of the Uttar Pradesh State Universities Act, 1973;
(II)Section B - Relevant provisions of the Uttar Pradesh State Universities First Statutes (Age of Superannuation, Scales of Pay and Qualifications of Teachers), 1975;
(III)Section C - Relevant provisions of the Uttar Pradesh Higher Education Services Commission Act, 1980;
(IV)Section D - Analysis of the issues involved;
(V)Section E - Evaluation of the conflicting decisions of this Court; and (VI)Section F - Conclusion.
(I) Section A - Relevant provisions of the Uttar Pradesh State Universities Act, 197316
1. (i) Section 2 (2) defines the expression 'affiliated college' to mean an institution affiliated to a University in accordance with the provisions of the Act and Statutes of that University.
(ii) Section 2 (15) defines the expression 'principal' in relation to an affiliated, associated or a constituent college to mean the head of such college;
(iii) Section 2 (19) defines the expression 'teacher' in relation to the provisions of the Act, except Chapter XI-A, to mean a person employed in a University or in an affiliated or associated college of a University for imparting instructions or guiding or conducting research in any subject or course approved by that University and to include a Principal or Director.
2. Section 31 forms a part of Chapter VI, which deals with appointment and conditions of service of teachers and officers. Sub-section (1) of Section 31 provides that subject to the provisions of the Act, teachers of the University and of an affiliated or associated college (other than a college maintained exclusively by the State Government) shall be appointed by the Executive Council or by the management of the affiliated or associated college, as the case may be, on the recommendation of a Selection Committee. Clause (a) of sub-section (3) of Section 31 stipulates that in the case of a teacher of an affiliated or associated college, the management may, in consultation with an expert nominated by the Vice Chancellor in that behalf, make an officiating appointment in a vacancy caused by the grant of leave to an incumbent for a period not exceeding ten months, but shall not fill any other vacancy or post likely to last for more than six months. Clause (c) of sub-section (4) of Section 31 stipulates that a Selection Committee for the appointment of a principal of an affiliated or associated college shall be constituted in the manner indicated therein. Clause (d) of sub-section (4) of Section 31 provides for the constitution of a Selection Committee for the appointment of other teachers of an affiliated college or of an associated college. Clause (a) of sub-section (11) of Section 31 provides that no teacher recommended by the Selection Committee shall be appointed by the management of an affiliated or associated college, unless prior approval of the Vice Chancellor has been obtained. The conditions of service of teachers of affiliated colleges, other than a college maintained exclusively by the State Government, are to be such as may be prescribed. Section 37 (4) provides that except as provided in the Act, the management of an affiliated college shall be free to manage and control the affairs of the college and be responsible for maintenance and upkeep, and that the principal shall be responsible for discipline of its students and for superintendence and control over staff.
Section 40 provides for the inspection of affiliated and associated colleges. Under sub-section (2) of Section 40, where the State Government decides to cause an inspection or inquiry to be made under sub-section (1), it has to inform the management, and a representative appointed by the management has to be present at such inspection or inquiry. Where the management fails to appoint a representative, the principal of the college may be present at such inspection or inquiry and shall have the right to be heard on behalf of the management. Under sub-section (6) of Section 40, it is open to the State Government, at any time, to call for any information from the management or the principal of an affiliated or associated college in connection with such inspection or inquiry.
Chapter IX deals with Statutes, Ordinances and Regulations. Section 49 provides that subject to the provisions of the Act, the Statutes may provide for any matter relating to the University. Amongst other things, the Statutes shall, in particular, provide for:
"(d) the classification and recruitment (including minimum qualifications and experience) of Principals and other teachers of the University and of affiliated and associated colleges, the maintenance by them of their annual academic progress report, the rules of conduct to be observed by them and their emoluments and other conditions of service (including provisions relating to compulsory retirement."
Section 50 (1) provides that the First Statutes of the University shall be made by the State Government by a notification in the gazette and until then the Statutes which were in force immediately before the commencement of the Act shall, insofar as they are not inconsistent with the Act, continue in force subject to adaptations or modifications specified by the State Government.
Chapter XI deals with the regulation of degree colleges, of which Section 56 (b) defines the expression 'salary' to mean the aggregate of the emoluments including dearness or any other allowance for the time being payable to a teacher or other employee after making permissible deductions. Under Section 57, the State Government is empowered to issue a notice to show cause to a management for the appointment of an authorised controller under Section 58, where it receives information that the management has persistently committed a willful default in paying the salary of teachers or other employees of the college by the twentieth day of the month next following the month in respect of which or any part of which it is payable.
Chapter XI-A deals with the payment of salary to teachers and other employees of degree colleges. The expression 'college' is defined in Section 60-A (i) to mean any college affiliated to or recognised by any University and receiving maintenance grant from the State Government. The expression 'salary' is defined under sub-section (v) to have the same meaning as in Section 56 (b). Section 60-B (1) provides that notwithstanding any contract to the contrary, the salary of a teacher or other employee of any college shall be paid before the expiry of the 20th day or such earlier day, as the State Government may appoint, of the month next following. Under sub-section (2), the salary is liable to be paid without a deduction of any kind except those authorised by the Act, the Statutes or the Ordinances. Under Section 60-E, the State Government is liable for payment of salaries against such posts of teachers and employees of such college that was taken in the grant-in-aid list by the State Government on or before 31 March 1975.
(II)Section B - Relevant provisions of the Uttar Pradesh State Universities First Statutes (Age of Superannuation, Scales of Pay and Qualifications of Teachers), 197517 The First Statutes are referable to the statutory power conferred upon the State Government by Section 50 (1) of the Universities Act. Statute 10-A provides the minimum qualifications for the post of a principal of a degree college or post-graduate college. Statute 10-B provides as follows:
"10-B. When the office of Principal of an affiliated college falls vacant, the Management may appoint any teacher to officiate as Principal for a period of three months or until the appointment of a regular Principal, whichever is earlier. If on or before the expiry of the period of three months, any regular Principal is not appointed or such a Principal does not assume office, the seniormost teacher, in the college shall officiate as Principal of such college until a regular Principal is appointed."
Under Statute 11, an overriding effect is given to the Statutes in the following terms:
"11. Overriding effect of these Statutes. - The provisions of these Statutes shall have effect notwithstanding anything contained in any contract to the contrary, and all Statutes and Ordinances in force on the date immediately before the commencement of these Statutes, insofar as they are inconsistent with these Statutes, shall, with effect from such commencement, stand repealed."
In consonance with the provisions of Statute 11, the First Statutes of State Universities contain provisions similar to Statute 10-B. (III) Section C - Relevant provisions of the Uttar Pradesh Higher Education Services Commission Act, 198018 The Commission Act was enacted by the state legislature to establish a Services Commission for the selection of teachers for appointment to colleges affiliated to or recognized by a University and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons accompanying the introduction of the Bill in the state legislature furnishes the raison d'etre for the enactment:
"According to the existing procedure, every college governed by the Uttar Pradesh State Universities Act, 1973, has its own Selection Committee with certain nominees of the Vice-Chancellor therein. It has been brought to the notice of the State Government that the meetings of these Selection Committees are quite expensive. Sometimes, the meetings have to be postponed because a common date does not normally suit all the members. Complaints of favouritism in the selection of candidates have also been made from time to time. The proposed Commission, it is expected, shall be free from the above shortcomings."
The expression 'appointment' is defined in Section 2 (a) to mean, in relation to a teacher, the appointment of a person to a sanctioned post described under Section 60-E of the Universities Act. Prior to this definition which was brought in by U P Act No 30 of 2004 which came into effect on 11 October 2004, the expression 'appointment' was defined in relation to a teacher, not to include an appointment made under Section 31 (3) of the Universities Act. Section 2(g) provides that words which are used but not defined in the Act but which have been defined in the Universities Act shall have the meaning, respectively assigned to them in that Act.
Section 12 deals with the procedure for the appointment of teachers. Prior to its amendment by U P Act No 2 of 1992, Section 12 (1) provided as follows:
"12. (1) Notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or in Statutes made thereunder, every appointment as a teacher of any college shall, after the date notified under sub-section (1) of Section (3), be made by the management only on the recommendation of the Commission."
Sub-section (5) of Section 12 stipulated that every appointment which was in contravention of the provisions of Section 12 would be void.
Section 12 was amended with effect from 22 November 1991. The amended provisions of Section 12 (1) provide that:
"12. Procedure for appointment of teachers.- (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void."
Section 16 of the Commission Act, as it was originally enacted, provided for the appointment of ad hoc teachers and read as follows:
"16. (1) Where the management has notified a vacancy to the Commission in accordance with sub-section (2) of Section 12, and the Commission fails to recommend the names of suitable candidates in accordance with sub-section (1) of that Section within three months from the date of such notification, the management may appoint a teacher on purely ad hoc basis from amongst the persons holding qualification prescribed therefor.
(2) Every appointment of an ad hoc teacher under sub-section (1) shall cease with effect from the earliest of the following dates, namely -
(a) when the candidate recommended by the Commission joins the post;
(b) where the period of two months from the date of receipt of the recommendation of the Commission under sub-section (1) of Section 12 expires;
(c) thirtieth day of June following the date of such ad hoc appointment."
Section 16 was, however, deleted from the principal Act by an Amending Act of 1992 (U P Act No 2 of 1992). The reason for the amendment was explained as follows in the Statement of Objects and Reasons accompanying the introduction of the Bill in the state legislature:
"...Section 16 of the Act empowered the management of Degree Colleges to appoint ad hoc teachers. Under this provision ad hoc teachers were appointed in the non-Government Colleges who continued to work from the date of their appointment. These teachers had been demanding regularization of their service. It was decided to amend the aforesaid Act:-
(1) to regularise the qualified and otherwise eligible ad hoc teachers appointed during the period between January 3, 1984 and January 30, 1991;
(2) to abolish the system of appointing ad hoc teachers;
(3) to streamline the manner of selection of teachers by providing that subject-wise consolidated number of vacancies likely to be caused during an academic year shall be notified to the Commission which will send the list of candidates selected for appointment to the Director, who will intimate the names to management for making appointments;
(4) to empower the State Government to appoint a substantively appointed teacher in a college, whose services are terminated due to abolition of post, to any other college."
Section 30 of the Commission Act gives overriding force and effect to the provisions of the Act, and is in the following terms:
"30. Act to have overriding effect.-The provisions of this Act, shall have effect notwithstanding anything to the contrary contained in the Uttar Pradesh State Universities Act, 1973 or the Statutes or Ordinances made thereunder."
Section 31-A confers power upon the State Government to remove difficulties and is to the following effect:
"31-A. Power to remove difficulties.- (1) The State Government may, for the purposes of removing any difficulty, by a notified order direct that the provisions of this Act shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as it may deem to be necessary or expedient:
Provided that no such order shall be made after expiry of two years from the date of commencement of the Uttar Pradesh Higher Education Service Commission (Amendment) Act, 1992.
(2) Every order made under sub-section (1) shall be laid before both Houses of the State Legislature.
(3) No order under sub-section (1) shall be called in question in any Court on the ground that no difficulty, as is referred to in sub-section (1) existed or required to be removed."
Thus, by the proviso to sub-section (1) of Section 31-A, a time limit was introduced for the making of an Order for the removal of difficulties by stipulating that no such Order would be made after the expiry of two years from the date of commencement of the Amending Act of 1992.
(IV)Section D - Analysis of the issues involved The issues which arise before the Full Bench involve, in a substantial measure, a comprehensive analysis of the interrelationship between the provisions of the Universities Act on the one hand and of the Commission Act on the other.
The Universities Act is an Act to amend and consolidate the law relating to Universities and was enacted in order to improve the academic and financial administration of higher education in the State. A comprehensive Bill applicable to all the State Universities was prepared. Among other things, the Act provides for security of service for teachers of degree colleges, constitution of Selection Committees for the appointment of principals and teachers and appointment and conditions of service of teachers of the University and of affiliated or associated colleges. The Universities Act provides for the formulation of Statutes providing, among other things, for classification and recruitment, including minimum qualifications and experience of the principal and other teachers of the University and of affiliated and associated colleges.
Under Statute 10-B of the First Statutes, upon the office of a principal of an affiliated college falling vacant, the management is empowered to appoint a teacher to officiate as a principal for a period of three months or until a regular principal is appointed, whichever is earlier. If a regular is not appointed before the expiry of three months or such a principal does not assume office, the seniormost teacher is required to officiate as principal until a regular principal is appointed. The first part of Statute 10-B governs a period of up to three months of the office of the principal falling vacant, What is important is the emphasis in Statute 10-B on the power conferred upon the management to appoint a principal to officiate for up to three months or until a regular principal is appointed. The second part of Statute 10-B which deals with a situation where a regular appointment is not made within a period of three months of the vacancy arising, must also be read to mean that the management would have to appoint an officiating principal but with this qualification that the officiating principal would have to be only the seniormost teacher, as distinct from any teacher who could have been appointed to officiate for the first period not exceeding three months.
The Commission Act was enacted by the state legislature to establish a Service Commission for the selection of teachers for appointment to colleges affiliated to or recognized by a University. The Act was intended to streamline the procedure for selection and to obviate complaints about the procedure followed by Selection Committees in individual institutions. Prior to the enforcement of the Commission Act with effect from 21 August 1980, upon the office of a principal of an affiliated college falling vacant, the management could, under the Statutes of the University, appoint any teacher as officiating principal for a period of up to three months or until the appointment of a regular principal was made, whichever was earlier. However, as we have noted above, if on or before the expiry of a period of three months, a regular principal was not appointed, the Statutes provided that the seniormost teacher in the college would officiate as principal. As the Commission Act stood when it was originally enacted, Section 12 (1) envisaged that notwithstanding anything contained to the contrary in the Universities Act or Statutes, every appointment as a teacher would be made by the management only on the recommendation of the Commission. The expression 'teacher' was not defined in the Commission Act but in view of the provisions of Section 2 (9), it would have the same meaning as in Section 2 (19) of the Universities Act and would include a principal. Sub-section (5) of Section 12 provided that an appointment made in contravention of Section 12 would be void. Section 16 which dealt with the appointment of ad hoc teachers enabled the management to appoint a teacher on an ad hoc basis where the Commission failed to recommend the name of suitable candidates despite the management informing a vacancy to the Commission, within three months of the date of such notification.
The Uttar Pradesh Higher Education Services Commission (Removal of Difficulties) Order, 1982 and a similar Order of 1983 were made under sub-section (1) of Section 31-A of the Commission Act. These Orders provided for the vacancies in which ad hoc appointments could be made and the manner and duration of such appointments.
Under Section 31-A of the Commission Act, the State Government was empowered to issue an Order for the purpose of removing any difficulty during such period as may be specified in that Order. The First Removal of Difficulties Order 1982 was in effect for a period of one year commencing from the date of its issue (4 January 1982), while the Second Order of 1983 had a similar duration of one year with effect from the date of its commencement. Nothing has been brought on the record to indicate that any fresh Order was issued or that the period of the earlier two Orders of 1982 or 1983 was extended.
Now, significantly, Section 12 (5), as it was originally framed in the Commission Act, covered a substantive appointment made under Section 12 and not an ad hoc appointment under Section 16. Otherwise, all ad hoc appointments would be void for non-compliance with the procedure contained in Section 12.
Section 16 was deleted by U P Act No 2 of 1992 with effect from 22 November 1991. Consequent upon the deletion, ad hoc appointments of teachers could no longer be made to affiliated colleges under the provisions of the Commission Act. This was liable to result in a grave situation since, after the retirement of a regular principal, no teacher could have been appointed to officiate as a principal. But, as we have noted above, prior to the enforcement of the Commission Act, managements of colleges were at liberty to appoint under the First Statutes, any teacher to officiate as a principal for the first period of three months of the office falling vacant. After the expiry of three months, Statute 10-B of the First Statutes stipulated that the seniormost teacher of the college would officiate as principal. Under Section 30 of the Commission Act, the provisions of that Act have overriding force and effect notwithstanding anything contrary contained in the Universities Act or in the Statutes or Ordinances made thereunder. After the deletion of Section 16 in the Commission Act, no provision remained on the Statute for the appointment of officiating or ad hoc principals of colleges. Hence, there was no provision in the Commission Act which was contrary to the provisions of the Universities Act and the First Statutes relating to the appointment of an officiating principal. The appointment of an officiating principal in a college could be made and is being made under the provisions of the Statutes of the University.
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.
These provisions came up for consideration before a Full Bench of this Court in Radha Raizada Vs Committee of Management, Vidyawati Darbari Girls Inter College19. 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."
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.
In Munishwar Dutt Pandey Vs Ramjeet Tiwari20, the Supreme Court held as follows:
"15. In view of the aforesaid settled legal position, therefore, it must be held that para 2 as substituted by the Second Removal of Difficulties Order would take in its sweep even future substantive vacancies of teachers including Principals which might be caused on account of contingencies contemplated thereunder and the said Order would continue to operate till it was rescinded. In this connection it is profitable to have a look at Section 33 of the Act under which these Orders have been enacted. As seen earlier the said section provides that the State Government may, for the purpose of removing any difficulty, by a notified order, direct that the provisions of this Act shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as it may deem to be necessary or expedient. Consequently, the State Government would have provided the period during which such an order could operate. But such a provision is not found in these orders limiting their period of operation. It is of course true that the proviso to Section 33 had laid down that such orders could not be made beyond two years of the coming into force of the Act. But as both the aforesaid Orders were enacted within that time they had to operate on their own once their duration of operation was not laid down by the Order-making authority in its wisdom. In fact this question is concluded by the decision of this Court in Prabhat Kumar Sharma. In the said decision a Bench of two learned Judges of this Court speaking through K. Ramaswamy, J. in its order has laid down that the Removal of Difficulties Order is a permanent one and not transient as contended for. For arriving at that conclusion the Bench had referred to, with approval, the decision of a Full Bench of the Allahabad High Court in the case of Radha Raizada v. Committee of Management, Vidyawati Darbari Girls' College. Once these Removal of Difficulties Orders of 1981 are held to be of permanent nature and would, therefore, operate to cover future vacancies also, it is not possible to agree with the contention of learned counsel for the contending respondent that these Orders could not cover in their sweep the vacancy of the Principal of the College in question which arose from 1-7-1988 on superannuation of the then Principal Sri Misra. Consequently the preliminary objection raised by learned counsel for the consenting respondent stands rejected."
Hence, as the Supreme Court noted, the State Government could have provided the period during which the Removal of Difficulties Orders could operate but such a provision was not made in these Orders limiting the period of operation. The Removal of Difficulties Orders were, therefore, construed to be permanent and not transient and reliance was placed on the decisions of the Full Bench of this Court in Radha Raizada (supra).
In a decision of the Full Bench of this Court in Ajai Kumar Vs Director of Education, U P, Allahabad21, it was held as follows:
"...The Commission Act and the rules and regulations framed thereunder have laid down elaborate procedure for the selection and appointment of the teachers in the colleges on permanent basis; but so far as the temporary appointments are concerned, no procedure was laid down and the selection and appointment of a teacher temporarily was left to the management of the colleges, Section 16, which has been deleted in 1992, empowered the management to appoint a teacher on ad hoc basis if the Commission failed to recommend the name of suitable candidate within specified time. The said section did not provide any procedure for selection. Similarly the two Removal of Difficulties Orders issued in 1982 and 1983 (which had already lapsed) also did not lay down any procedure for selection of a teacher for appointment on ad hoc basis excepting that the management has to make such appointment in consultation with an expert, nominated by the Vice-Chancellor of the University to which the concerned college is affiliated. Therefore the Commission selects candidates for their appointment in permanent vacancies. The Commission thereafter sends the list containing the names of the selected candidates for their appointment in permanent vacancies. The management has to appoint selected candidates in the substantive vacancies which have been intimated by it to the Director under Section 12 (2). The whole exercise under Section 13 by various functionaries mentioned therein is related to the selection and the appointment in permanent/substantive vacancies."
The position which emerges can be summarised. Prior to the enactment of the Commission Act in 1980, where a vacancy had arisen in the office of the principal of an affiliated college, the management was empowered to make an appointment of any teacher to officiate as a principal for a period of three months or until the appointment of a regular principal took place, whichever was earlier. If no appointment was made before the expiry of a period of three months, the management was empowered to make an officiating appointment albeit with a condition that it had to be of the seniormost teacher. When the Commission Act was enacted in 1980, Section 12 (1) empowered the management to make an appointment of a teacher only on the recommendation of the Commission and sub-section (5) provided that any appointment made in contravention of the provisions of that Section would be void. Section 16 dealt with the appointment of ad hoc teachers where despite a notification of a vacancy to the Commission by the management, the Commission had not recommended the names of suitable candidates within three months. In such an event, the management could appoint a teacher purely on an ad hoc basis. Evidently, sub-section (5) of Section 12 covered only substantive appointments and not ad hoc appointments made under Section 16, otherwise all ad hoc appointments would be void as being in contravention of the procedure under Section 12. When Section 16 was deleted with effect from 22 November 1991, the effect of the deletion was that there was no substantive provision in the Commission Act providing for the appointment of ad hoc teachers. Since there was no provision in the Commission Act contrary to the First Statutes made under the Universities Act which provided for ad hoc appointments where a vacancy had occurred in the office of a principal, an officiating appointment of a principal could be made in an affiliated college under the provisions of the Statutes of the Universities.
(V) Section E - Evaluation of the conflicting decisions of this Court The reference to the Full Bench has arisen as a result of the decision of the Division Bench in Daljeet Singh where it was held that under the Statutes of the University, the seniormost teacher is not appointed as officiating principal but is only permitted to discharge the duties of a principal. In taking this view, the Division Bench, in its decision, relied upon the earlier decision in Sheo Shanker Tripathi (supra). Prior to these decisions, several Division Benches of this Court had consistently issued directions for the payment of salary drawn by a principal to an officiating principal of a degree college.
In Dr Durga Prasad Dwivedi Vs Director of Higher Education, U P, Allahabad (supra), a Division Bench of this Court consisting of S H A Raza and Surya Prasad, JJ held as follows:
"... However, the fact remains that the petitioner was appointed as Officiating Principal by the Managing Committee on 7th September, 1987. The word 'ad-hoc' mentioned in his appointment order has no relevance as far as the payment of salary to the petitioner is concerned. If instead of officiating word 'ad-hoc' has been mentioned in the order, it would not make any difference inasmuch as the petitioner would be entitled for the payment of salary. It is not a nomenclature of a post which matters, but the duties which are assigned to it are most relevant. There is no denial of the fact that till 7th September, 1987 to 25th March, 1991 the petitioner worked on the post of Principal, may be ad-hoc or officiating, hence he would be entitled for the payment of salary." (emphasis supplied) In Dr Govind Singh Niranjan Vs District Inspector of Schools, Jalaun at Orai (supra), a Division Bench of this Court consisting of Palok Basu and R K Mahajan, JJ held as follows:
"... Regarding salary, when a person has officiated as a Principal and performed all the duties of Principal he cannot be denied the salary for the respective post. He has been performing his duties as officiating Principal and is entitled to get all the emoluments of the officiating Principal till regular selection is made." (emphasis supplied) In Raghu Nath Misra Vs State of U P (supra), the question involved was whether an officiating principal appointed under Statute 13.20 of Gorakhpur University, which was also applicable to Purvanchal University, was entitled to payment of the salary of a principal. A Division Bench consisting of S H A Raza and Bhagwan Din, JJ relied on the earlier decisions, noted above, while issuing a writ of mandamus for the payment of the salary of the principal between July 1989 and June 1992 when the petitioner had attained the age of superannuation. The decision in Raghu Nath Misra's case was followed by a Division Bench of this Court consisting of Mr Justice M Katju (as His Lordship then was) and D R Chaudhary, J in Dr Anand Prakash Tyagi Vs State of U P (supra). A Division Bench consisting of Dr Justice B S Chauhan (as the learned Judge then was) and one of us (Dilip Gupta, J) in Madan Gopal Mittal Vs State of U P (supra) observed that:
"There is no dispute regarding the settled legal proposition as has been held by this Court in Writ Petition No. 39699 of 1993, Ragu Nath Misra Vs. State of U.P. & Ors., decided on 13.11.1997 that officiating Principal is entitled for the salary of the Principal..." (emphasis supplied) In Paras Nath Pandey Vs District Inspector of Schools (supra), the petitioner was appointed as an officiating principal in a college affiliated to Sampurnanand Sanskrit Vishvavidyalaya for over two years without receiving his salary. The college was governed by the Universities Act and by the Statutes. While allowing the claim for the payment of salary, the Division Bench held as follows:
"The petitioner had attained the age of superannuation on 5.11.94 and in addition to his teaching work he has also been performing the functions of Principal and, therefore, he was certainly entitled to get the pay in the scale of Principal in view of the doctrine of "equal pay for equal work" and that relief has to be granted to him. It is, therefore, directed that the difference of pay for the period with effect from 30.5.91 afternoon to 5.11.94 be paid to him within a period of six months from the date of certified copy of this order is furnished."
A similar view was taken by another Division Bench in Om Saran Tripathi's case.
We may now note certain decisions which have taken a contrary position. In Sheo Shanker Tripathi Vs. Director of Education (supra), the petitioner being the seniormost teacher of a college affiliated to Sampurnanand Sanskrit University was appointed as principal on an officiating basis on the retirement of a person working on the post of principal. The University also appointed the petitioner as officiating principal under Statute 12.22 after which the petitioner had continuously worked as officiating principal. The petitioner claimed regularization on the post of principal and the payment of his salary for the period during which he had officiated. The Division Bench noted that under the Removal of Difficulties Order of 1983, contingencies were specified where an ad hoc appointment could be made and providing for the manner of making such appointments. The Division Bench noted that the vacancy in the post of principal occurred in 1994 but the management did not make any appointment in accordance with the procedure prescribed under para 3 of the Removal of Difficulties Order, 1983. In the view of the Division Bench, unless the procedure prescribed in the Commission Act and the 1983 Order was followed, no appointment of a teacher which included a principal could have been made by the management. The Division Bench held as follows:
"Before enactment of 1980 Act, the scheme for appointment of teachers of University and its affiliated, associated and constituent colleges was provided under the 1973 Act. ...Statute 12.22 permitted senior most teacher to act as Principal till regular Principal assumes office. However, with the enactment of 1980 Act which has been given overriding effect, the procedure of selection and appointment has undergone a major change inasmuch as the selection committee is now substituted by the commission and the selection has to be made in accordance with the procedure prescribed under 1980 Act. Section 12 of the said Act prohibits appointment of a teacher not made in accordance with the provisions of 1980 Act and also declares such appointment, if it is in violation, void. Therefore this Court is of the view that no appointment of teacher which includes Principal of the College can be made which is not in accordance with 1980 Act. That being so, Statute 12.22 would not help the petitioner and would not apply in such a case. The Legislature after enacting 1980 Act realised that after occurrence of vacancy on the post of teacher selection may take time and some provisional arrangement would be necessary. To meet such contingency, exercising power under Section 31-A of 1980 Act, the 1983 Order has been issued, which, as we have referred herein above, empowers management to make ad-hoc appointment in the manner provided therein. Therefore, unless an appointment is made to the post of Principal under 1980 Act read with 1983 Order, no one can claim salary of the post of Principal..." (emphasis supplied) In Vijai Rani Vs Regional Inspectress of Girls Schools (supra), the Division Bench held that when the principal of the affiliated college was retiring, the petitioner-teacher was directed by the manager of the college to take over charge as officiating principal and discharge the duties of that post. This, in the view of the Division Bench, did not constitute an appointment or promotion to the post of principal and the petitioner was only directed to look after the duties of the higher post. The Division Bench held as follows:
"From a bare reading, we do not find that it did promote Petitioner-Appellant on officiating basis as Principal of the College. On the contrary, it shows that the Manager of the College directed the Petitioner-Appellant to take over charge as officiating Principal and discharge its duties. Despite of repeated reading of the order, we could not find ourselves in agreement with the learned counsel for the Petitioner-Appellant to read the letter dated 29th June 1988 as order of ad hoc/officiating promotion of the Petitioner-Appellant as Principal of the College. 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 remains that it results in a vacancy in the lower post, may be short-term and temporary." (emphasis supplied) These decisions were followed by the Division Bench in Daljeet Singh (supra). In that case, the person who was holding the post of principal died and a substantive vacancy occurred in the post. The petitioner was allowed by the management to discharge the duties of the principal to which the University granted its approval. The petitioner claimed the salary of the post of principal relying on the provisions of Statute 13.20 of the First Statutes of the Chhatrapati Sahuji Maharaj University, Kanpur to which the college was affiliated. The Division Bench dismissed the petition. The following considerations weighed with the Division Bench:
(i) With effect from 22 November 1991, when the Uttar Pradesh Higher Education Services Commission (Amendment) Act, 1992 came into force, the legislature had not permitted any ad hoc appointment of a teacher in a college in any manner;
(ii) No steps were taken by the management or the State for recruitment on the post through the Commission and in the absence of a candidate recommended by the Commission, the management was not empowered to make an ad hoc appointment;
(iii) Statute 13.20 of the First Statute does not speak of the appointment of a person on the post of principal either on an ad hoc or officiating basis but only permits the seniormost teacher to act as principal till a duly selected principal assumes office; and
(iv) In any event, after the enactment of the Commission Act in 1980, even an ad hoc appointment on the post of principal could have been made only in accordance with the procedure prescribed in the Commission Act and any other mode and manner was prohibited.
The observations of the Division Bench from which we have culled out the above propositions enunciated in that decision are as follows:
"The term every appointment as substituted by U.P. Act No. 2 of 1992 includes an ad hoc appointment and from the very scheme of 1980 Act, it is evident that the legislature has not permitted since 22.11.1991 any ad hoc appointment of a teacher in a College in any manner.
Admittedly, vacancy occurred on 17.11.2002, but there is nothing on record to show that any steps were taken by the respondents for recruitment on the said post through Commission. In the absence of any candidate recommended by the Commission, the management is not empowered to make ad hoc appointment under 1980 Act. Moreover, there is nothing on record to show that any such appointment at all was made by the management. We find that the petitioner was not appointed as ad hoc Principal of the College, though, he claims to have been appointed as per statute 13.20 of the First Statute of Kanpur University Act, which provides that in case of the post of Principal of an affiliated College falls vacant, the senior most teacher of the College shall act as Principal until a duly selected teacher assumes office. Statute 13.20 does not talk of any appointment on the post of Principal either on ad hoc or on officiating basis, but only permits a senior most teacher to act as Principal till a duly selected Principal assumes office. In our view, Statute 13.20 would not cause an appointment on the post of Principal entitling the senior most teacher to claim salary for the said post. It only permits him to act and discharge duties on the said post for the time being. Even otherwise, after enactment of 1980 Act ad hoc appointment on the post of Principal at the best could have been made only in accordance with the procedure under 1980 Act and any other mode and manner is prohibited. Until and unless the petitioner would have been appointed in accordance with the procedure of 1980 Act, in our view, he could not have claimed salary on the post of Principal..." (emphasis supplied) The view of the Division Bench was that Statute 13.20 did not provide for appointment on the post of principal but only stipulated that the seniormost teacher would act as principal. A person who merely discharges the duties of a post was held not to be entitled to the payment of salary of the higher post:
"...Appointment to a post on ad-hoc or officiating basis is different than mere discharge of duties of a higher post. In other words, the petitioner was only given current duty charge in addition to the substantive post he held. In our view, this arrangement did not result in promotion to the post of which the current duty charge was handed over to the petitioner unless an order of promotion is issued by the management in favour of the petitioner."
We may again note that several decisions have taken the view that a person who has officiated on the post of a principal of a secondary school would be entitled to the salary of a principal. These decisions were in:
(i) Dhaneshwar Singh Chauhan Vs District Inspector of Schools (supra);
(ii) Narbdeshwar Misra Vs District Inspector of Schools (supra); and
(iii) Soloman Morar Jha Vs District Inspector of Schools (supra).
We have noted the four propositions which emerge from the judgment of the Division Bench in Daljeet Singh (supra) which form the basis of the decision to hold that an officiating principal is not entitled to the salary payable to a principal. In our respectful view, each of the four propositions suffers from a legal error.
The first proposition of the Division Bench is that with effect from 22 November 1991, the legislature has not permitted any ad hoc appointment of a teacher in a college in any manner. We have already dealt with this aspect in a considerable amount of detail in the earlier part of this decision. There is, in our view, a fundamental fallacy in the premise that after the deletion of Section 16 of the Commission Act with effect from 22 November 1991, the state legislature has not permitted even an officiating appointment of a teacher in an affiliated college in any manner. Prior to the enforcement of the Commission Act with effect from 20 August 1981, in a vacancy which had occurred in the post of a principal, the management under the Statutes of the University was entitled to appoint any teacher to officiate as a principal for a period not exceeding three months or until a regular appointment was made. If no regular appointment was made beyond a period of three months, the seniormost teacher was required to officiate as principal until a regular principal was appointed. The deletion of Section 16 with effect from 22 November 1991 resulted in a situation where ad hoc appointments of teachers could not be made in the affiliated colleges under the provisions of the Commission Act. This would have resulted in a grave situation where, upon the retirement of a principal, no teacher could have been appointed even to officiate as a principal. Prior to the enforcement of the Commission Act, such a power was, indeed, vested in the management under the Statutes of the University. Upon the deletion of the statutory provision in the Commission Act for the making of ad hoc appointments, the power which was vested in the University to frame Statutes was unaffected and where the Statutes prescribed the making of an officiating appointment to the post of principal on a vacancy arising in that post, such a power or the provisions of the Statutes were not nullified. In fact, after the deletion of Section 16 from the Commission Act, there is nothing inconsistent in the provisions of the Universities Act or the First Statutes which, under the overriding provisions of Section 30 of the Commission Act, would stand negated. The Statutes of the University duly framed under the Universities Act would, hence, operate and would empower the management to make an officiating appointment in the manner indicated in Statute 10-B of the First Statutes.
The Division Bench in Daljeet Singh is also, with respect, in error in holding that Statute 13.20 (which is pari materia with the First Statute, Statute 10-B) does not speak of an officiating appointment on the post of a principal but only permits the seniormost teacher to act as principal. Statute 13.20, which is identical to Statute 10-B provides that when the office of the principal of an affiliated college falls vacant, the management may appoint any teacher to officiate as principal for a period of three months or until the appointment of a regular principal, whichever is earlier. It also provides that if, on or before the expiry of three months, any regular principal is not appointed or if such a principal does not assume office, the seniormost teacher in the college would officiate as principal until a regular principal is appointed. When the Statutes make a reference to the appointment of teacher to officiate as principal for the first three months, it would necessarily follow that for any period after three months, the seniormost teacher is also appointed as the officiating principal. The expression 'appointment' referred to in the first sentence of the First Statutes must, necessarily, be read in the context of any arrangement required to be made after three months, in the second sentence. The Division Bench in Daljeet Singh's case failed to notice this position and merely referred to the second sentence of the Statute. Hence, the conclusion of the Division Bench that under Statute 13.20, a teacher is only asked to discharge the duties of the post of principal and is not actually appointed as officiating principal is, therefore, not correct.
The third error in the decision of the Division Bench in Daljeet Singh's case is that while interpreting the provisions of the Commission Act, the Division Bench incorporated the principles of the Secondary Education Services Commission Act. We have already noted that the Full Bench in Radha Raizada as well as the Supreme Court in Munishwar Dutt Pandey held that ad hoc appointments under the First and Second Removal of Difficulties Orders issued under Section 33 of the Secondary Education Services Commission Act could be made even though a reference to Section 18 had been deleted from Section 16, because no time limit was prescribed in the First and Second Removal of Difficulties Orders and they continued to hold the field since they had not been rescinded. The Removal of Difficulties Orders under the Secondary Education Services Commission Act were held not to be transient in nature but permanent. That was because both those Orders were not restricted in operation to a specified period of time. The position with regard to the Commission Act is entirely different. Section 16 which provided for ad hoc appointments was deleted by U P Act 2 of 1992. Even the time period of one year for which the two Removal of Difficulties Orders had been issued expired. Hence, ad hoc appointments could not be made either under Section 16 of the Commission Act or under the Removal of Difficulties Orders notified under Section 31-A of the Commission Act.
The Division Bench in Sheo Shanker Tripathi was also in error in observing that the officiating principal of a college was not entitled to the salary of the post of principal because such an appointment had not been made under the Commission Act and the Removal of Difficulties Orders. The Division Bench in Sheo Shanker Tripathi distinguished Narbdeshwar Misra and held that in view of the admitted facts, the petitioner had been appointed only to officiate as a principal of the college and the provision under which he was appointed was different from the provisions of Statute 12.22.
Thus, if the Statutes provide for appointment on officiating basis and if the seniormost teacher has actually been appointed as the officiating principal of the college, the decision in Daljeet Singh would not preclude the officiating principal from claiming salary of the post of a principal.
The Full Bench of this Court in Paresh Yadav Vs State of U P22 also does not help the respondents. The petitioners therein had not been promoted to the post of ARTO, nor had the appointing authority issued any order in their favour to officiate and discharge the duties of that post. It is for this reason that the Full Bench, after noticing the decision of the Supreme Court in Ramakant Shripad Sinai Advalpalkar Vs Union of India23, in which a distinction had been drawn between substantive promotion to a higher post and a situation where a person is merely required to discharge the duties of a higher post, did not grant any relief.
Having noticed the aforesaid decisions, it would be pertinent to refer to the decision of the Supreme Court in P Grover Vs State of Haryana24. The appellant therein was promoted as an Acting District Education Officer with effect from 19 July 1976 and even though the order of promotion contained a super added condition that she would draw her own pay scale, the Supreme Court observed that there was no reason why the appellant would not be entitled to the pay of the post on which she was acting, particularly in the absence of a rule justifying refusal to pay a person promoted to a higher post, the salary of such higher post. In State of Haryana Vs R K Aggarwal25, the Supreme Court distinguished that judgment because a rational explanation had been given for not giving promotion to the respondent as there was a litigation pending.
The matter can also be examined from another aspect. Though the petitioners are not Government servants but an analogy can be drawn from the Financial Hand Book Vol II, Part II to IV. Chapter IV deals with pay. Rule 30 deals with pay of officiating government servants and it provides as follows:-
"30. Pay of officiating Government servants:
(1) Subject to the provisions of Chapter VI, a Government servant who is appointed to officiate in a post shall not draw pay higher than his substantive pay in respect of a permanent post, other than a tenure post, unless the post in which the appointment is made in an officiating capacity belongs to a Selection Grade of a service, or, unless the officiating appointment involves the assumption of duties and responsibilities of greater importance than those attaching to the post, on which he holds a lien or would hold a lien had his lien not been suspended:" (emphasis supplied) It cannot be doubted, in the present case, that the officiating appointment of a teacher as an officiating principal involves assumption of duties and responsibilities of greater importance than those attaching to the post of a teacher. This is evident from the provisions of the Universities Act, referred to earlier in this judgment. It is the State Government which is primarily liable to pay salary to the employees and teachers under the provisions of the Universities Act.
A Full Bench of the Punjab and Haryana High Court in Subhash Chander Vs State of Haryana26 examined whether an employee who has been given independent charge and responsibility of a higher post is entitled to the regular pay scale in view of the provisions of Rule 4.13 of the Punjab Civil Service Rules Vol I, Part I, which is identical to Rule 30 referred to above. The Full Bench observed that if an employee is appointed to officiate on a post involving assumption of duties and responsibilities of greater importance than those attaching to the substantive post, then he would be entitled to the salary of the officiating post of a higher rank.
(VI) Section F - Conclusion In conclusion, we hold that prior to the enforcement of the Commission Act with effect from 20 August 1981, a management was duly empowered under the Statutes of the University (Statute 10-B of the First Statutes) to appoint as officiating principal a teacher, upon the office of the principal falling vacant in an affiliated college until a regular appointment was made. Statute 10-B of the First Statutes postulates an appointment of any teacher to officiate as a principal extending initially for a period of upto three months until a regular appointment is made and thereafter, beyond. The condition is that upto a period of three months any teacher can be appointed to officiate as principal, whereas beyond a period of three months, only the seniormost teacher can be appointed to officiate as principal. When the Commission Act was enacted, Section 16 provided for making ad hoc appointments. The First and the Second Removal of Difficulties Orders of 1982 and 1983 were made under Section 31-A (1) of the Commission Act. Both had a period of validity of one year. The second Order came to an end after its expiry, on a period of one year elapsing after 4 January 1983. Section 12 of the Commission Act related to substantive appointments and not to ad hoc appointments under Section 16. Section 16 was deleted with effect from 22 November 1991. After the deletion, the Commission Act did not contain any provision for ad hoc appointments. If no power is to be construed to exist in a management to make an officiating appointment, when a vacancy arises in the office of a principal until a regular appointment is made in accordance with the provisions of the Commission Act, serious prejudice would have been caused in the functioning of educational institutions including affiliated colleges. There is a vital element of public interest in the proper functioning of educational institutions and if the cause of education is not to suffer, some arrangement would have to be made during the period when there is a vacancy in the office of a principal. The power to make an officiating appointment is traceable to the provisions of the Statutes of the State Universities, analogous to Statute 10-B of the First Statutes. Once the nature of that power is construed as a power to make an appointment albeit on an officiating basis till a regularly selected candidate becomes available, there would be no justification to deny a claim for the payment of salary to such a person who has been appointed on an officiating basis. The power to make an officiating appointment under the Statutes of the University after the deletion of Section 16 from the Commission Act with effect from 22 November 1991 is preserved. Such a provision in the Statutes would not be inconsistent with or contrary to the Commission Act so as to attract the overriding provisions contained in Section 30. Where a person has been appointed as an officiating principal until a regularly selected candidate takes charge, this involves an assumption of duties and responsibilities of a greater importance than those attaching to the post of a teacher. The Universities Act in several provisions, which have been noted earlier, adverts to the duties and responsibilities which are required to be performed by a principal. Hence, a person who is appointed as an officiating principal under the Statutes of the University until a regularly selected candidate is made available, would be entitled to the payment of salary attached to the post of principal.
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.
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.
September 26, 2014 AHA (Dr D Y Chandrachud, CJ) (Dilip Gupta, J) (Suneet Kumar, J)