Allahabad High Court
Udai Narain Pandey vs Director Of Education (Higher ... on 21 January, 1999
Equivalent citations: 1999(1)AWC897, (1999)3UPLBEC1887
JUDGMENT Aloke Chakrabarti, J.
1. The order dated 13.10.1998 (Annexure-7 to the writ petition) issued by the Director of Education (Higher Education) allowing the respondent No. 5 to continue as Principal of Shiva Pati Degree College. Soharatgarh, Siddharth Nagar till 30.6.1999 granting him the session benefit in terms of Statute 16.24 of First Statutes of the University of Gorakhpur.
2. The contention of the petitioner is that the respondent No. 5 could not be allowed to continue as Principal in terms of the said Statute 16.24 as such benefit is only available as a teacher and one cannot be continued as Head of the Department or Principal applying the said provision of Statute 16.24. On such contention, the present petitioner claiming himself to be the seniormost teacher of the institution is entitled to work as officiating Principal of the institution in question on retirement of the respondent No. 5 on 30.9.1998.
3. The respondent No. 5 has filed counter-affidavit and has contended that he was selected by the U. P. Higher Education Service Commission and thereupon was appointed on substantive post of Principal in the institution concerned and, therefore, applying the provision of Statute 16.24, the respondent No. 5 has to be re-employed for the continuing session and, therefore, the impugned order is valid and proper and should not be interfered with.
4. Heard Dr. R. G. Padia, learned counsel for the petitioner and Mr. R. N. Singh, learned counsel for the respondent No. 5 as also Mr. Dileep Gupta, learned counsel for Gorakhpur University as question of interpretation of the provisions of First Statutes of the University of Gorakhpur came up for consideration.
5. As regards applicability of the provisions of law, there is no dispute that First Statutes of the University of Gorakhpur are applicable. On the applicability of particular provision, the learned counsel for the petitioner contended that the provision applicable in respect of the session benefit of a Principal is Statute 17.13 which runs as follows :
"17.13. The provisions of Statutes 16.23 to 16.26 relating to the superannuation of the teachers of the University shall mutatis mutandis apply to the teachers of an affiliated college."
6. It has been admitted by all the parties that by virtue of the said Statute 17.13, the provision applicable in the present case is as contained in Statute 16.24 which is as follows :
"16.24. (1) Subject to the provisions of Statutes 16.25 and 16.26, the age of superannuation of a teacher of the University governed by the new scale of pay shall be sixty years.
(2) The age of superannuation of a teacher of the University not governed by the new scale of pay shall, subject to Statute 16.25, be sixty years.
(3) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these Statutes :
Provided that a teacher whose date of superannuation does not fall on June 30 shall continue in service till the end of the academic session, that is, June 30 following, and will be treated as on re-employment from the date immediately following his superannuation till June 30, following :
Provided further that such physically and mentally fit teachers shall be re-appointed for a further period of one year, after June 30, following the date of their superannuation, as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension.
Provided also that the teachers who were re-appointed in accordance with the second proviso as it existed prior to the commencement of the Gorakhpur University (Twenty-ninth Amendment) First Statutes, 1988 and a period of one year has not elapsed after the expiry of the period of their re-employment, may be considered for re-appointment for a further period of one year,"
7. The learned counsel for the petitioner contended that the first proviso to clause (3) of Statute 16.24 refers to a teacher and for the purpose of session benefit, the said expression 'teacher' means only persons actually teaching and it does not include Principal. In support of such contention, reliance has been placed on the judgment in the cases of Dr. Rajpati Chauhan v. V. C. Sampurnanand Sanskrit University, Varanasi and others, 1998 (2) ESC 1190 and Paras Nath Pandey v. District Inspector of Schools Basil and others, 1995 (1) UPLBEC 667, (photostat copies of the said two Judgments have been annexed in the writ petition alongwith the documents at Annexure-3 thereof).
8. For the purpose of said contention, reference was also made to the definitions of the expressions 'teacher' and 'teacher of the University' as contained in subsections (18) and (19) respectively of Section 2 of the U. P. State Universities Act, 1973. The said provisions are as follows :
"2. 118) "teacher" means a person employed for imparting instruction or guiding or conducting research in the University or in an Institute or in a constituent, affiliated or associated college and includes a Principal or a Director :
(19) "teacher of the University" means a teacher employed by the University for imparting instruction and guiding or conducting research either in the University or in an Institute or in a constituent college maintained by the University."
The aforesaid definitions make it clear that the expression 'teacher' includes a Principal. Therefore, while considering the first proviso in Statute 16.24, re-employment of a Principal has also to be granted as in the said proviso only expression used is 'teacher' for _the purpose of such re-employment.
9. Law has been referred to by both parties for the purpose of interpreting an expression used in various parts of one particular provision of law but this aspect need not be decided here as expression 'teacher' has been only used in sub-clause (3) of Statute 16.24 and the three provisos thereafter. Sub-clauses (1) and (2) of Statute 16.24 used the expression 'teacher of the University' and not 'teacher'. Therefore, we find that question of grant of re-employment and continuation in service has been given only in respect of teachers which admittedly includes Principal as the expression has been defined in the said Statute.
10. Strong reliance has been placed by the petitioner on the law decided in the cases of Dr. Raj Pati Chauhan v. V. C. Sampurnanand Sanskrit University, Varanasi (supra) and Paras Nath Pandey v. District Inspector of Schools, Basti (supra). Relying on the said Judgment, it has been contended that Principal is not entitled to continuation in service in the present facts as only teachers are to get such benefit under the first proviso as aforesaid. On behalf of the respondent, it has been contended that the present respondent No. 5 having been employed as Principal on regular basis he is entitled to continue in service on re-ernployment as Principal only.
11. The facts involved in the case of Dr. Raj Pati Chauhan (supra), it appears that the petitioner therein was a Reader in the Department of Education in Sampurnanand Sanskrit University and the respondent No. 3 therein was a Professor and the order under challenge there was asking the respondent No. 3 to continue as Head of the Department concerned. Applying the provisions of Statute 16.24 in the aforesaid factual background. It was held that under the said Statute 16.24, a teacher was to be re-employed as a teacher only and would not enjoy other offices like Head of the Department or Principalship of academic council. In coming to such a finding, reliance was placed on the findings in the case of Paras Nath Pandey (supra).
12. The judgment in the case of Paras Nath Pandey (supra), also shows that the petitioner therein admittedly was appointed as Assistant Teacher in the college concerned and ultimately was promoted as Head of the Department of Vyakaran. Thereafter, he was working as officiating Principal of the college. While other proceeding initiated by the said petitioner claiming his right to continue as officiating Principal and for other reliefs was pending, he attained the age of superannuation and claiming session benefit, he claimed to be entitled to continue as officiating Principal till the end of the concerned academic year. In the aforesaid factual background, the law was considered and we find that only because of the said special fact that he was working as officiating Principal, his re-employment was held as a teacher and not as Principal. The difference of facts with the case of Prof. R. N. Tewari v. Allahabad University and others, (1991) 1 UPLBEC 563, was not only considered but was also approved. The relevant finding in the case of Paras Nath Pandey is as follows :
"18. The facts involved in Prof. R. N. Tewari (supra), which has been relied upon by the learned counsel for the petitioner are altogether different. There the petitioner was a Professor. Immediately after the date of his superannuation he got re-employed on the post of Professor and performed the same functions which he was performing on the date of his superannuation and under the peculiar circumstances of the particular case a Division Bench of this Court had held that by no stretch of imagination it could be said that he was not a teacher of the University as defined under the State Universities Act. Therefore, there can possibly be no quarrel with the proposition of law laid down therein. But the ratio of that case cannot be grafted on the facts and circumstances of the case in hand. Herein the petitioner on the date of his superannuation was a teacher and in addition thereto he was looking after the work of Principal as officiating Principal. Therefore, immediately, after the date of his superannuation he was re-employed as a teacher under the provisions of clause (3) of Statute 16.24 of the Statute and not as Principal. He could not, therefore, forestal the appointment of a regular Principal."
13. Therefore, it is apparent that Statute 16.24 provides for re-employment on the post the concerned person was employed on the date of superannuation. In the case of Prof. R. N. Tewari (supra), the petitioner therein was a Professor on the date of his superannuation and, therefore, he was to continue as Professor on re-employment under first proviso of Statute 16.24. In the case of Paras Nath Pandey (supra), the petitioner was a teacher on the date of his superannuation and in addition thereto, he was looking after the work of Principal as officiating Principal and, therefore, on superannuation he was re-employed as a teacher only and not as Principal. Same was the finding with regard to a teacher having charge as Head of Department or a member of council. Substantive appointment in all those cases being in the post of teacher, on re-employment concerned teacher was to continue only as a teacher and he is not to enjoy the additional administrative charges after superannuation.
14. In the present facts, the respondent No. 5 admittedly was appointed on substantive post of Principal in the institution concerned and while holding the said post, date of superannuation came. Admittedly, apart from the said appointment as Principal, the respondent No. 5 never held any post of teacher in the said institution. Therefore, applying the law as aforesaid, after the date of superannuation, the respondent No. 5 was to continue in service on re-employment as Principal.
15. In view of the aforesaid findings, the claim of the present petitioner cannot be allowed and the writ petition is dismissed. There will be no order as to costs.