Allahabad High Court
Om Saran Tripathi vs State Of U.P. And Others on 19 July, 2010
Author: Sunil Ambwani
Bench: Sunil Ambwani, Kashi Nath Pandey
1
Court No. 29
CIVIL MISC. WRIT PETITION NO. 41457 OF 2010
Om Saran Tripathi vs the State of U.P. and others
Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
Heard Shri Arvind Srivastava, learned counsel for the petitioner. Learned Standing Counsel appears for respondent nos. 1 and 2. Shri P.S. Baghel, Senior Advocate assisted by Shri Krishna Kumar Chaurasiya appears for Dr. Vinod Chandra Kaushik-caveator.
The petitioner is a senior most teacher in 'Kanhaiya Lal Basant Lal Snanotkar Mahavidyalaya, District Mirzapur' a degree college affiliated to 'Veer Bahadur Singh Poorvanchal University, Jaunpur'. On the superannuation of Shri C.P. Rai, the Regional Higher Education Officer, Varanasi/Authorised Controller of the College handed over charge of the Principal to the petitioner on 19.7.2008.
The petitioner has attained the age of superannuation today on 19.7.2010. By this writ petition, he has prayed for directions to continue him as officiating Principal of the degree college, by giving him benefit of academic session upto 30.6.2011.
Shri Arvind Srivastava, learned counsel for the petitioner has relied upon the recent Full Bench judgment of this Court in Surendra Prasad Agnihotri vs. State of UP and others 2010 (5) ADJ 1 (FB) in which the question:- 'as to whether a teacher of Intermediate College, who was appointed appointed as officiating principal of the Institution by virtue of the seniority on attaining the age of superannuation, in the extended period of service, shall continue as officiating principal or simply as a teacher', was heard and decided by the Court. The Full Bench held that if a teacher, who has already been appointed as officiating Principal of the Institution, by virtue of his seniority on attaining the age of superannuation, in the extended period of his service, shall continue as officiating Principal, and not simply as teacher.
Shri Arvind Srivastava submits that the ratio is applicable to the teachers of degree colleges, as well. He submits that the reasons given in 2 the judgment, namely that, 'Teacher' includes the Principal (under Section 2 (19) of the UP State Universities Act, 1973), and that an adhoc person cannot be replaced by another adhoc person, and to be superseded by a junior teacher to work as officiating Principal of the College is equally applicable to the degree colleges. Shri Srivastava states that though the Full Bench has distinguished the judgment in S.K. Rathi v. Prem Hari Sharma and others 2000 (4) ESC 2278 of the Supreme Court and in R.C. Gupta (Dr.) vs. State of U.P. and others (2002) 1 UPLBEC 767, on the ground that these two decisions were in respect of a degree college teachers, but if the ratio of the Full Bench judgment in Surendra Prasad Agnihotri's case is applied to the degree colleges, the same conclusion has to be arrived at to allow the senior most degree college teacher, officiating as Principal to continue him/her as Principal till the academic sessions expires.
Shri P.S. Baghel, Senior Advocate appearing for Dr. Vinod Chandra Kaushik-caveator submits that in respect of a Principal of a degree college the provisions of law, relied upon in the judgment of Supreme Court are entirely different. He submits that in case of Principal of an Intermediate College Regulation 21 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921, and Section 18 of the U.P. Secondary Education (Service Selection Board) Act, 1982 are applicable, in which the senior most teacher, without any orders, takes over as officiating Principal by virtue of his seniority. The provisions of Regulation 21, and Section 18, provide for allowing the senior most teacher to function as adhoc Principal until a regularly appointed Principal is made available after selections by the Commission. In case the officiating Principal superannuates before the close of the academic session, he will continue as officiating Principal of the college until the end of the academic session.
In the case of teachers of degree colleges, though the definition of the Teacher under Section 2 (19) of the UP State Universities Act, 1973, also includes Principal, Section 10-B of the UP State Universities First Statutes (Age of Superannuation, Scales of Pay, Qualification of Teachers) 1975, provides that if the office of Principal has fallen vacant, the management may appoint any teacher to officiate as Principal for a period 3 of three months, or until the appointment of a regular teacher, whichever is earlier. If on or before the expiry of three months, any regular principal is not appointed or such a Principal does not assume office, the senior most teacher shall officiate as Principal. Section 10-B is quoted as below:-
"10-B When the office of Principal of an affiliated college has fallen 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."
Shri P.S. Baghel points out that the Statute 15.24 of Veer Bahadur Singh Poorvanchal University, Jaunpur made under Section 49 of the UP State Universities Act, 1973 provides that where a teacher attains the age of superannuation before the close of the academic sessions, he will be considered to be re-appointed, after the day he attains the age of superannuation till 30th June of the next year. The re-appointment does not have the same effect as deemed extension of service, as in the case of Regulation 21 of Chapter III framed under the U.P. Intermediate Education Act, 1921.
We have gone through the reasons given in the judgment in S.K. Rathi's case (supra) and find that the Supreme Court has held that in case of appointment as officiating Principal a teacher of the degree college does not continue on the post of teacher but as acting Principal, which is a different post altogether. In paragraphs 4 and 5 of the judgment in S.K. Rathi's case the Supreme Court held as follows:-
"4. On a query raised by us, learned Counsel for the respondent drew our attention to a decision of the Government contained in document dated 16th February, 1999, in which it was, inter alia, stated that for teachers like respondent No. 1 the age of superannuation was 60 years. The said decision further states that no extension in service shall be granted but "if the date of superannuation of a teacher does not fall on June 30, the teacher shall continue in service till the end of the academic session i.e. June 30, following". This is the clause on which reliance is placed by the learned Counsel in support of the decision of the High Court.4
5. There is no doubt that the said decision would enable respondent No. 1 to continue as a teacher, which is his substantive appointment, up to 30th June, following the day when he attained the age of 60 years but this clause cannot allow him to continue as an acting principal which is a different post altogether. It cannot be disputed that the post of Principal and of the teacher is not the same. It is a teacher on promotion who is appointed as a Principal and there is no decision of the Government giving extension beyond the age of 60 years to a Principal. This being so, the appeal is allowed and the decision of the High Court permitting respondent No. 1 to function as Principal of the Institution till 30th June, 2000 is set aside."
The reasons given by the Full Bench in Surendra Prasad Agnihotri's case and relied upon by Shri Arvind Srivastava, do not affect the reasoning of the decision of the Supreme Court in S.K. Rathi's case applicable to the officiating Principal of the degree colleges. In case of officiating Principal of a degree college, he does not (under Section 10-B of the Statutes or Statute 15.24 of the Statutes of the University) hold the same post but a different post altogether. It is a case of re-appointment and not extension of the period of officiating charge of the Principal. In case of re-appointment, the re-appointed person does not get the same seniority. He stands at the bottom of the list.
There is no good ground to grant the reliefs claimed for by the petitioner.
The writ petition is dismissed.
Dt. 19.7.2010 RKP/