Allahabad High Court
Bhanu Pratap Singh vs State Of U.P. Through Secy.Intemediate ... on 9 July, 2014
Author: B. Amit Sthalekar
Bench: B. Amit Sthalekar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ? AFR Court No. - 21 Case :- SERVICE SINGLE No. - 6518 of 2012 Petitioner :- Bhanu Pratap Singh Respondent :- State Of U.P. Through Secy.Intemediate Edu. And Others Counsel for Petitioner :- Som Kartik Counsel for Respondent :- C.S.C. Hon'ble B. Amit Sthalekar,J.
The petitioner in this writ petition is seeking quashing of the orders dated 07.012011, Annexure-2 to the writ petition and 31.05.2012, Annexure-5 to the writ petition whereby his salary of the post of Ad hoc Principal has been reduced below that of a regular Principal.
Counter affidavit and rejoinder affidavit have been filed and the supplementary counter affidavit has also been filed.
Heard Sri Som Kartik, learned counsel for the petitioner and the learned Additional Chief Standing Counsel appearing for the respondents no.1 & 2.
The contention of the petitioner is that he was appointed as Assistant Teacher in the Industrial Inter College, Gautam Budh Marg, Lucknow thereafter he was appointed as L.T. Grade Teacher on 19.02.1980 and thereafter promoted as Lecturer in 1996. The post of Principal of the said College fell vacant and thereafter the petitioner who was the senior most Assistant Teacher in the College was appointed on the post of Ad hoc Principal on 01.08.2010 in terms of the provisions of Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the Act, 1982).
These facts are not disputed between the contesting parties. The only question and short point for determination in the writ petition is as to whether the petitioner was entitled for the salary and other consequential benefits of the post of Principal upon his appointment as Ad hoc Principal or whether he is entitled to given the Grade and Scale admissible to Lecturers.
According to the petitioner he was being paid salary of Rs. 29,500/- w.e.f. 01.03.2010 of the post of Principal. He represented to the authorities and the authorities by means of the impugned order instead reduced his pay to Rs. 27,870/- relying upon the G.O. dated 08.12.2008 which was subsequently clarified by another G.O. dated 24.02.2012.
Sri Som Kartik, learned counsel for the petitioner has referred to the provisions of Section 18 of the Act, 1982 which provides for appointment of Ad hoc Principals or Head Masters as the case may be.
Section 18 of the Act, 1982 reads as follows:
"18. Ad hoc Principals or Head Masters-(1) Where the management has notified a vacancy to the Board, in accordance with sub section (1) of Section 10 and the post of the Principal or the Headmaster actually remained vacant for more than two months, the management shall fill such vacancy on purely ad hoc basis by promoting the senior most teacher.
(a) in the lecturer's grade in respect of a vacancy in the post of the Principal.
(b). in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.
(2) Where the Management fails to promote the senior most teacher under sub-section (1) the inspector shall himself issue the order of promotion of such teacher and the teacher concerned shall be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he joins such post in pursuance of such order of promotion.
(3) Where the teacher to whom the order of promotion is issued under sub-section (2) is unable to join the post of the Principal or the Headmaster, as the case may be, due to any act or omission on the part of the management, such teacher may submit his joining report to the Inspector, and shall thereupon be entitled to get his salary as the Principal or the Headmaster, as the case may be, from the date he submits the said report.
(4) Every appointment of an ad hoc Principal or Headmaster under sub-section (1) or sub-section (2) shall cease to have effect from when the candidate recommended by the Board joins the post."
Sub section 1 of Section 18 clearly provides that where the management notifies the vacancy of the post of Principal to the Selection Board and the post of Principal as in this case, remains vacant for more than two months, the Management shall fill such vacancy on purely ad hoc basis by promoting the Senior Most Teacher.
(a) in the lecturer's grade in respect of a vacancy in the post of the Principal.
(b). in the trained graduate's grade in respect of a vacancy in the post of the Headmaster.
Sub section 2 of Section 18 provides that where the Management fails to promote the senior most teacher on the post of Ad hoc Principal, the DIOS shall himself issue the order of promotion of such teachers who shall be entitled to get his salary as Principal, as the case may be, from the date he joins such post in pursuance of such order of promotion.
Thus, sub section 2 clearly shows that the the appointment under section18 shall be made as Ad hoc Principal by the DIOS on the failure of the management to promote the senior most lecturer and further that such appointees on joining as Ad hoc Principal shall draw the salary of a Principal.
Section 18 of the Act, 1982 deals strictly with regard to the appointment on the post of Principal or Head Master, as the case may be, on ad hoc basis and does not deal with appointment on regular basis.
The respondents on the other hand have relied upon the G.O. dated 08.12.2008 and its clarification dated 24.02.2012 to state that Ad hoc Principal appointed under Section 18 of the Act, 1982 being an ad hoc appointee cannot be paid the salary of a regular Principal and it is only if a regular Principal is selected by the Board of Secondary Education who if appointed on ad hoc basis would be entitled to the salary of a Principal. This is a specious submission which is not borne out from the language of Section 18 sub-Section 2 of the Act, 1982. If the Government Order of 08.12.2008 and its clarification dated 24.02.2012 provide anything which is contrary to the statutory Rules, the said Government orders would be ultra vires the provisions of Section 18, sub-section 2 of the Act. 1982. The law is well settled in this regard that a Government order cannot be override the provisions of statutory rules.
The law in this regard has been settled by the Supreme Court in the following cases:-
(1) (1997) 4 SCC 301, P. Sadagopan Vs. F.C.I. (2) (2005) 7 SCC 567, Dilip Kumar Ghosh Vs. Chairman (3) (1995) Supp 3 SCC 332 Subhash Vs. State of Maharashtra It is not in dispute between the parties that the petitioner was appointed on ad hoc basis on the post of Principal in the College in question pending availability of a duly selected candidate from the Board of Secondary Education. When the provisions of sub-section 2 of section 18 of the Act, 1982 specifically provide that the senior most lecturer would be appointed as ad hoc principal and he would be entitled to the salary payable to the Principal, the said benefit cannot be denied to the petitioner. It is not in dispute between the parties that the salary of the Principal is Rs. 29,500/- and in case of the petitioner the same has been reduced to Rs. 27,870/- which is wholly illegal and arbitrary being in violation of statutory Rules and therefore the impugned orders dated 07.01.2011 and 31.05.2012, Annexure-2 and Annexure-5 to the writ petition respectively cannot survive.
The order dated 07.01.2011 to the extent it relates to the reduction of salary of the petitioner and the order dated 31.08.2012, Annexure-2 and Annexure-5 are therefore quashed.
The writ petition is allowed. At the time of admission, this Court had been pleased to stay the operation of the impugned order dated 31.05.2012, Annexure-5 to the writ petition and had directed the opposite parties to pay the petitioner's salary which he was being paid on his initial appointment prior to the passing of the impugned order.
A direction is, therefore, issued to the respondent no.2 to ensure that the petitioner is paid the salary of a Principal i.e. at the basic pay of Rs. 29,500 from the date he was appointed as ad hoc principal i.e. 01.08.2010 alongwith arrears thereof.
Order Date :- 9.7.2014 N Tiwari