Allahabad High Court
State Of U.P. Through Secy. Higher ... vs Dr. Bramhanand Shukla & Another on 10 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 54
Bench: Pankaj Kumar Jaiswal, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 15 of 2020 Appellant :- State Of U.P. Through Secy. Higher Education & Others Respondent :- Dr. Bramhanand Shukla & Another Counsel for Appellant :- C.S.C. Counsel for Respondent :- S.P. Singh,G.C. Verma Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Narendra Kumar Johari,J.
1. Heard Shri Anil Kumar Visen, learned Standing Counsel for the applicants/ appellants, Shri G.C. Verma, learned counsel for the respondent no.1 and Shri S.P. Singh, learned counsel for the respondent no.2 on C.M. Application no.2850 of 2020 (Application for Condonation of Delay) as well as on the question of admission of appeal.
2. The Appeal is barred by 190 days.
3. It is not in dispute that the respondent no.1-writ petitioner was senior most teacher in the Institution and was directed to look after the work on the post of Principal on officiating basis on 25.08.2004, by the Committee of Management of the Institution. Salary and other benefits admissible for the post of principal were not provided to the writ petitioner only on account of the bar indicated in Statute 12.22 of the First Statute of the University which was inserted by a notification of the State Government dated 31.10.1985.
4. As no difference of salary was paid to the petitioner, therefore he filed a writ petition, wherein the dispute was whether the writ petitioner who was appointed by the Committee of Management as Officiating Principal, vide order dated 25.08.2004, can be paid salary on the basis of salary on which he has officiated in the Smt. Bhagirathi Trust Aadarsh Sanskrit Mahavidyalaya, which is affiliated to respondent no.2- Sampurnand Sanskrit University.
5. Learned Writ Court considering the law laid down by the Full Bench in the case of Dr. Jai Prakash Narayan Singh Vs. State of U.P. and others, [2014 (4) UPLBEC 2642], wherein the Full Bench has held that an Officiating Principal appointed under Statutes of the University, which are pari materia to the provisions of Statute 10(B) of the First Statutes framed under the State Universities Act, 1973 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.
6. Considering the aforesaid the learned Writ Court quashed the portion of Statute 12.22 of the First Statute of the Sampurnand Sanskrit University which created a bar on payment of salary on the post of Principal to a person holding the said post on officiating basis, as well as the impugned order dated 27.11.2008 and directed the appellants to make payment of salary on the post of Principal to the writ petitioner for the period during which he has officiated on the post of Principal of the Smt. Bhagirathi Trust Aadarsh Sanskrit Mahavidyalaya.
7. Learned Standing Counsel, in respect of condonation of delay of 190 days, has submitted that due to procedural delay immediately after passing of the impugned order, a legal opinion was sought and thereafter the matter was referred to various authorities for grant of approval. Since it is not the case of ex-parte order and the learned Standing Counsel as well as the counsel for the respondents from the day one had knowledge about the passing of the order on 29.05.2019, they instead of taking any recourse were casual and referred the matter to the various authorities for grant of approval.
8. Considering the aforesaid, we are not of the view that the averments stated in support of the delay is not at all sufficient to condone the delay. On merit also learned Standing Counsel for the appellants submitted that the writ petition regarding statutory validity of Statute 12.22 also came before the Division Bench in Writ Petition no.12735(S/B); Hari Sharan Tripathi Vs. State of U.P. and during pendency of the writ petition impugned order was passed and therefore the Writ Court has committed an error in allowing the writ petition.
9. As law on the subject is well settled by the Full Bench in the case of Dr. Jai Prakash Narayan Singh (supra), the issue involved in the writ petition is fully covered, the Writ Court has not committed any error in passing the impugned order directing the appellants to pay the difference of amount of salary to the writ petitioner.
10. Shri G.C. Verma, learned counsel has drawn our attention to the order dated 14.11.2019 passed in Special Appeal Defective no.518 of 2000; The State of U.P. and Ors. Vs. Girija Prasad Dubey and Anr., wherein a similar matter was considered and the Court after considering the decision of Full Bench, dismissed the appeal on merit. The judgment reads as under:-
"Heard Sri Mohit Jauhari, learned counsel for the State-appellants and Sri G.C.Verma, learned counsel for the respondent no.1 on C.M.A. No. 131364 of 2019 as well as on the question of admission of appeal.
This special appeal is barred by 176 days.
Cause shown in delay in filing the appeal is sufficient.
Delay in filing the appeal is condoned.
The C.M.A. No. 131364 of 2019 for condoning the delay in filing the appeal is allowed.
This special appeal has been filed against the Judgement and order dated 16.04.2019 passed by learned Writ Court in Service Single No. 3644 of 2004 whereby the State-appellants has been directed to pay the arrears of salary to the respondent no.1 on the post of Principal of the College in the pay scale of Rs. 8000-13500 as revised from time to time w.e.f. 21.06.1999 till the age of superannuation i.e. 30.06.2012 after adjusting the payment made towards the salary and other allowance for the post of Principal in pursuance of the interim order dated 26.05.2005.
It is not in dispute that the appointment of the writ petitioner-respondent no.1 was made as an officiating Principal of the Institution under the Statute and therefore till regular Principal appointed, the respondent no.1 is entitled for the arrears of salary on the post of Principal. This issue has been settled by the Full Bench in the matter of Dr. Jai Prakash Narayan Singh Vs. State of U.P. and others in Writ Petition No. 23627 of 2014, decided on 26.09.2014. Reference has been answered after relying upon the Statute 10-B holding that officiating Principal that once provisions of Statutes entitle the officiating Principal to receive regular salary, he would be entitled to it during the period in which he or she officiates as officiating Principal.
In the present case, the learned Writ Court decided both the issues and dealt the question in detail in paragraph nos. 13 to 19 of the impugned Judgement and order and has held that the appointment of the respondent no.1 made on the post officiating Principal and till date no regular Principal has been appointed and therefore, he would be entitled to the payment of arrears of salary on the post of Principal.
After going through the Judgement and order passed by the learned Writ Court, we are of the view that learned Standing Counsel could not point out any good ground for the interference of this Court in the Judgement and order passed by learned Writ Court. Thus, there is no legal infirmity in the Judgement and order passed by the learned Writ Court.
The special appeal is bereft of merit and is accordingly, dismissed."
11. On due consideration of the aforesaid the C. M. Application No. 2850 of 2020 as well as appeal on merit is accordingly dismissed.
Order Date :- 10.1.2020 Arnima (Narendra Kumar Johari, J.) (Pankaj Kumar Jaiswal, J.)