Allahabad High Court
Dr Archana Gautam vs State Of Up And 3 Others on 13 March, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:44814 Court No. - 34 Case :- WRIT - A No. - 3894 of 2024 Petitioner :- Dr Archana Gautam Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Kushmondeya Shahi,Tanuj Shahi Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J.
1. Heard learned counsel for the parties.
2. Petitioner who is senior most Lecturer in the institution is seeking appointment as officiating/ad hoc Principal of the Institution as the vacancy has been continuing since 2017 and till date there is no recommendation of the Uttar Pradesh Secondary Education Service Selection Board in making appointment on the post in question.
3. He submits that so far as the new Act, namely, Uttar Pradesh Education Service Selection Commission Act, 2023 is concerned the Board has yet not been constituted inasmuch as there is no provision contained therein to meet the contingency where the vacancy occurs of the Principal of the institution and the Commission has not been able to make a recommendation. He submits that on both the contingency the power as prescribed under Regulation 2 (3) of Chapter II of the Intermediate Education Act, 1921 should be exercised. Regulation 2 (3) of Chapter II of the Intermediate Education Act, 1921 is reproduced hereunder:
"(3) Where the temporary vacancy in the post of head of institution is, for a period not exceeding thirty days, the senior-most teacher in the highest grade may be allowed to work as acting head of institution, but he shall not be entitled to pay in a scale higher than the scale of pay in which he is drawing salary as such teacher."
4. Upon a pointed query being made, learned Standing Counsel agrees that till date new Commission has not come into existence. He also could not dispute the proposition placed by learned counsel for the petitioner that until the Commission is constituted the aid can be had of the provisions contained under the Intermediate Education Act, 1921.
5. Having heard learned counsel for the parties and having perused the record, I find that the sole ground taken in the impugned order is that since the old Act of 1982 has come to be repealed by Section 21 of the new Act the approval to the ad hoc appointment of the Principal cannot be granted.
6. Looking to the regulations as quoted above namely Regulation 2 (3) of Chapter II of the Intermediate Education Act, 1921 and in the background of the fact that the Commission under the new Act namely, Uttar Pradesh Education Service Selection Commission Act, 2023 has yet not come into existence, this situation cannot be permitted to remain fluid. No institution can be run without a Principal, may be in officiating capacity. Whether the new Act provides the provision to make such ad hoc appointment or not the doctrine of necessity is attracted in the matter.
7. Still further I find that in respect of one institution namely, Public Inter College, Bulandshahr, the same District Inspector of Schools has approved the payment of officiating head of the institution whereas in the case of petitioner he has been denied the benefit. It is an absolutely arbitrary exercise of power inasmuch as discriminatory action which cannot be approved of.
8. In the circumstances, the order dated 08.01.2024 passed by the Additional Director of Education (Secondary) is hereby quashed.
9. Matter is remitted to him to decide in accordance with the provisions as contained under Regulation 2 (3) of Chapter II of the Intermediate Education Act, 1921 and pass appropriate order within a period of thirty days of production of certified copy of this order.
10. In the event approval is granted to the petitioner as Officiating Head of the Institution, petitioner would also be entitled to payment of salary in terms of Full Bench judgment of this Court in the case of Dr. Jai Prakash Narayan Singh Vs. State of U.P. and others 2014 (8) ADJ 617.
Order Date :- 13.3.2024/Deepika