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Daljeet Singh v. The State Of U.P. And Others - WRIT - A No. 19663 of 2007  RD-AH 11330 (6 July 2007)
Reserved on 10.5.2007
Delivered on 06.07.2007
Civil Misc. Writ Petition No. 19663 of 2007
State of U.P. & others
Hon'ble Anjani Kumar, J.
Hon'ble Sudhir Agarwal, J.
Heard Sri S.P. Singh, learned counsel for the petitioner and learned standing counsel for the respondents.
The writ petition is directed against the order dated 31.12.2006 passed by the Director of Education (Higher Education) U.P., Allahabad rejecting representation of the petitioner claiming salary on the post of officiating Principal of Mahatma Gandhi Post Graduate College, Fatehpur (hereinafter referred to as ''College').
The facts in brief as stated in the writ petition are that the College is a recognized and aided institution governed by the provisions of U.P. State Universities Act, 1973 (hereinafter referred to as ''1973 Act') and is affiliated with Chhatrapati Sahuji Maharaj University, Kanpur (hereinafter referred to as ''the University'). Dr. Dipti Tripathi holding the office of the Principal of College expired on 17.11.2000 causing a substantive vacancy on the said post. The Management allowed the petitioner to discharge duties of the principal pursuant whereto the petitioner took over charge on 20.11.2002 and his functioning as Principal of the College was approved by the Vice Chancellor of the University vide order dated 2.12.2002. The petitioner, thereafter claimed salary on the post of Principal contending that he is discharging duties of the Post in officiating capacity as permitted under statute 13.20 of the First Statute of the University and therefore should be paid salary of the said post. His representation claiming salary on the post of Principal, however, has been rejected by the Director vide order impugned in the writ petition.
Learned counsel for the petitioner vehemently contended that the term "Teacher" has been defined under Section 2(19) of 1973 Act, which includes Principal. Statute 13.20 of the First Statute of University entitles the senior most teacher to officiate as Principal as and when vacancy on the said post exists. Further, the responsibility of payment of salary in respect to an aided institution lies upon the State Government under Section 60-E of 1973 Act and since the petitioner is continuously discharging his duties as Principal, in view of the law laid down in Pushkar Singh Verma Vs. District Inspector of Schools, Meerut & another, 1999 (3) AWC 2622, he is entitled for payment of salary for the post of Principal. He also placed reliance on a Judgment of this Court dated 12.3.2004 passed in Writ Petition No. 10022 of 2004, Dr. (Smt.) Vijay Srivastava Vs. State of U.P. & others.
We have considered the aforesaid submission and have perused the record including the relevant statute and various authorities cited by the learned counsel for the petitioner.
It is not disputed that initially the matter of appointment of "teacher" in the College was governed by 1973 Act and statutes framed thereunder. Section 31 of 1973 Act deals with the procedure of making appointment of teachers including Principal of a College. However, U.P. legislature enacted U.P. Higher Education Service Commission Act, 1980 (hereinafter referred to as ''1980 Act') with an object to establish Service Commission for selection of teachers for appointment in the Colleges affiliated or recognized by the University. 1980 Act has been given overriding effect over the existing law to the extent it is inconsistent to 1980 Act. Section 12 of 1980 Act as substituted by U.P. Act No. 2 of 1992 with effect of 22.11.1992 provides for procedure of appointment of teachers and reads as under :
"12. Procedure for appointment of teachers-(1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void.
(2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as may be prescribed.
Explanation-The expression "academic year" means the period of 12 months commending on July 1.
(3) The Director shall notify to the Commission at such time and in such manner as may be prescribed subject-wise consolidated list vacancies intimated to him from all colleges.
(4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulations:
Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3):
Provided further that the candidates shall be required to indicate their order of preference for the various, colleges vacancies wherein have been advertised."
In 1980 Act, as enacted originally, Section 16 provides for appointment of ad hoc teachers and read as under :
"16. Appointment of ad-hoc teachers.-(1) Where the management has notified a vacancy to the Commission in accordance with sub-section (2) of section 12, and the Commission fails to recommend the names of suitable candidates in accordance with sub-section (1) of that section within three months from the date of such notification, the management may appoint a teacher on purely ad hoc basis from amongst the persons holding qualification prescribed therefore.
(2) Every appointment of an ad hoc teacher under sub-section (1) shall cease with effect from the earliest of the following date, namely-
(a) when the candidate recommended by the Commission joins the post ;
(b) where the period of two months from the date of receipt of the recommendation of the Commission under sub-section (1) of Section 12 expires ;
(c) thirtieth day of June following the date of such ad hoc appointment."
However, the said provision was deleted vide U.P. Higher Education Services Commission (Amendment) Act, 1992 (U.P. Act No. 2 of 1992), which came in to force on 22.11.1991. Further, in order to cover up a situation where due to non availability of the candidates recommended by the Commission, the institutions were facing difficulty, initially First Removal of Difficulties order was issued under Section 31-A(1) of 1980 Act vide U.P. Gazette (Extraordinary) published on 11.12.1981 permitting to make certain ad hoc appointment in certain contingencies prescribed in para-2 of the said order and the manner and duration of such appointment was provided in para-3 thereof. However, the said order was issued only for a period of one year. Thereafter, Second Order was issued, i.e., U.P. Higher Education Services Commission (Removal of Difficulties) Order, 1983 and para- 2 and 3 thereof reads as under :
"(2) Vacancies in which ad hoc appointments can be made and eligibility for appointment-The management of a College may appoint a teacher on purely ad hoc basis, in accordance with the provisions of this Order, in the vacancies occurring in any of the following manner, namely:
(i) creation of new post;
(ii) suspension, removal or dismissal of teacher;
(iii) resignation or death of a teacher;
(iv) a teacher going on leave for a period of more tan ten months;
(v) a teacher proceeding on 'teachers fellowship' under any scheme of University Grants Commission or any other body;
(vi) the retirement of a teacher."
(3) "Manner and duration of appointment- Every appointment of a teacher under paragraph 2 shall be made in consultation with an expert, nominated by the Vice-Chancellor, and shall cease on the date when the Uttar Pradesh Higher Education Services Commission recommends a candidate for appointment in accordance with the provisions of the Uttar Pradesh Higher Education Services Commission Act, 1980."
The Second Order was published vide Gazette notification dated 29.1.1983 and was issued for a period of one years commencing 4.1.1983. Since, thereafter no other provision has been made authorizing any ad hoc appointment on the post of teacher and on the contrary, Section 12 of 1980 Act clearly provides that "every appointment" as a teacher of the College shall be made by the management in accordance with the provisions of 1980 Act and every appointment made in contravention thereof shall be void. The term every appointment as substituted by U.P. Act No. 2 of 1992 includes an ad hoc appointment and from the very scheme of 1980 Act, it is evident that the legislature has not permitted since 22.11.1991 any ad hoc appointment of a teacher in a College in any manner.
Admittedly, vacancy occurred on 17.11.2002, but there is nothing on record to show that any steps were taken by the respondents for recruitment on the said post through Commission. In the absence of any candidate recommended by the Commission, the management is not empowered to make ad hoc appointment under 1980 Act. Moreover, there is nothing on record to show that any such appointment at all was made by the management. We find that the petitioner was not appointed as ad hoc Principal of the College, though, he claims to have been appointed as per statute 13.20 of the First Statute of Kanpur University Act, which provides that in case of the post of Principal of an affiliated College falls vacant, the senior most teacher of he College shall act as Principal until a duly selected teacher assumes office. Statute 13.20 does not talk of any appointment on the post of Principal either on ad hoc or on officiating basis, but only permits a senior most teacher to act as Principal till a duly selected Principal assumes office. In our view, statute 13.20 would not cause an appointment on the post of Principal entitling the senior most teacher to claim salary for the said post. It only permits him to act and discharge duties on the said post for the time being. Even otherwise, after enactment of 1980 Act ad hoc appointment on the post of Principal at the best could have been made only in accordance with the procedure under 1980 Act and any other mode and manner is prohibited. Until and unless the petitioner would have been appointed in accordance with the procedure of 1980 Act, in our view, he could not have claimed salary on the post of Principal. A similar issue has been considered by us in Civil Misc. Writ Petition No. 50997 of 1999, Sheo Shanker Tripathi Vs. Director of Education (Sanskrti) U.P. Allahabad & others decided on 17th April 2007 and considering a similar provision, i.e., statute 12.22 of Sampurnanand Sanskrit University, Varanasi, first Statute, this Court has observed as under :
"Before enactment of 1980 Act, the scheme for appointment of teachers of University and its affiliated, associated and constituent colleges was provided under the 1973 Act. Section 31 sub-section 1 of 1973 Act provided that teachers of the University and all affiliated or associated college other than a college maintained exclusively by the State Government shall be appointed by the executive council or the management of the affiliated or associated college as the case may be on the recommendation of a selection committee in the manner provided thereunder. Sub-section 4(c) of Section 31 provides constitution of selection committee for selection of the Principal and sub-section 10 provides that no selection for appointment under the said Section shall be made except after advertisement of the vacancy in at least two news papers having adequate circulation in Uttar Pradesh. Sub-section 11 provides for prior approval of Vice-Chancellor before appointment of teacher in an affiliated or associated college. Since regular selection under Section 31, would have taken some time, in order to meet the exigency arising due to occurrence of vacancy on the post of principal, Statute 12.22 permitted senior most teacher to act as Principal till regular principal assumes office. However, with the enactment of 1980 Act which has been given overriding effect, the procedure of selection and appointment has undergone a major change inasmuch as the selection committee is now substituted by the commission and the selection has to be made in accordance with the procedure prescribed under 1980 Act. Section 12 of the said Act prohibits appointment of a teacher not made in accordance with the provisions of 1980 Act and also declare such appointment, if it is in violation, void. Therefore this Court is of the view that no appointment of teacher which includes Principal of the College can be made which is not in accordance with 1980 Act. That being so, Statue 12.22 would not help the petitioner and would not apply in such a case. The legislature after enacting 1980 Act realised that after occurrence of vacancy on the post of teacher selection may take time and some provisional arrangement would be necessary. To meet such contingency, exercising power under Section 31-A of 1980 Act, the 1983 Order has been issued, which, as we have referred hereinabove, empowers management to make ad-hoc appointment in the manner provided therein. Therefore, unless an appointment is made to the post of Principal under 1980 Act read with 1983 Order, no one can claim salary of the post of Principal."
The judgment relied by the learned counsel for the petitioner, in our view, has no application for appointment on the post of teacher in the Institution of higher education. We find that Pushkar Singh Verma (Supra) was a case arises out of the of U.P. Intermediate Act, 1921 (hereinafter referred to as ''1921 Act') and this Court decided the matter following its earlier judgment in Narmedeshar Misra Vs. District Inspector of Schools, Deoria & others, 1982 UPLBEC 171.
In Narmedeshwar Misra (Supra), the matter pertain to appointment of a Principal on officiating basis under Regulation 2(1), Chapter-II of the Regulations framed under 1921 Act. Regulation 2 Chapter-II which came up for consideration before this Court reads as under:-
"2. (1) The posts of the Head of Institution shall, except as provided in clause (2) be filled by direct recruitment after reference to the Selection Committee under Sub-section (1) of Section 16-F or, as the case may be, under Sub-section (1) of Section 16-FF.
Provided that in the case of any instruction not being an institution referred to in Section 16-FF a temporary vacancy caused by the grant of leave to an incumbent for a period no exceeding six months, or by death, retirement or suspension of any incumbent occurring during an educational session in the post of the Head of Instruction shall be filled by the promotion of the senior most qualified teacher, if any, in the highest grade in Institution."
On a plain reading of Regulation 2, and in view of the admitted fact that Narmedeshwar Misra was appointed to officiate as Principal of the College this Court held as under:-
"6. A perusal of the proviso to Regulation No. 2(1) shows that the petitioner's case was squarely covered by it. The petitioner was appointed in the vacancy caused by the retirement of Banshidhar Dixit, to officiate as the Principal of the College. The petitioner was the senior most teacher. He was, therefore, lawfully appointed as the officiating Principal contemplated by the proviso." (emphasis added)
It is worthy to notice that under proviso to Regulation 2 Chapter-II, the language used is that the post of Head of the Institution shall be filled by promotion of the senior most qualified teacher, if any, in the highest rank, in the institution meaning thereby the provision contemplated promotion on the post of Principal of the senior most teacher in the highest rank. When we compare the language of Regulation 2, Chapter-II of the Regulation framed under 1921 Act with Statute 13.20 of the University, we find that Statute 13.20 does not talk of promotion or appointment on the post of Principal but says that the senior most teacher shall act as Principal. Therefore, in Narmedeshwar Misra (Supra) this Court considered a different provision which is not applicable in the present case. Even otherwise it cannot be disputed that in the case of Narmedeshwar Misra (Supra) the Court found and observed in para 6 that the petitioner was "lawfully appointed officiating principal" and in that view of the matter it was held that he would be entitled for salary of the said post. A valid appointment to the post for the purpose of claiming salary, therefore, is a condition precedent and in absence thereof salary of the higher post cannot be claimed.
Similarly Pushkar Singh Verma (Supra) also appears to be a case of secondary education governed by 1921 Act and the Regulations framed thereunder where provisions are different. In none of the cases it has been held that even if a teacher is not appointed or validly appointed to the post of Principal yet he would be entitled for salary.
Lastly, the contention of the learned counsel for the petitioner that in view of Section 60-FF of 1973 Act, he is entitled for salary is also deserves to be rejected. This aspect has also been considered by us in Sheo Shanker Tripathi (supra) and the Court held as under :
At this stage, it is relevant to notice that Section 60-E of Chapter-II A of 1973 Act makes State Government liable for payment of salary to the teachers and employees of every college which is in grant in aid list of the State Government. Under Statute 12.21 of the First Statute it is provided that the teachers shall be given such grade of pay and governed by such other conditions of service as may be laid down from time to time in the Ordinances or in the orders, special or general, issued by the government concerned in that behalf. Statute 17.02 provides that except the case of appointment any vacancy caused by the grant of leave to a teacher for a period not exceeding 10 months, teachers of affiliated college shall be appointed on a written contract in the Form-1 or Form-2 set out in Appendix-D. Appendix-D Form-2 is meant for Principal of affiliated college, but the condition of service contained therein makes it clear that the same is referable to a substantive appointment made on probation. Therefore, under 1973 act read with Statutes and 1980 Act, except of substantive appointment, the only other way permissible for appointment to the post of Principal is an ad-hoc appointment in accordance with para 3 of 1983 Order and only thereafter one can claim salary for the post on which he is appointed and not otherwise. Thus we are of the considered opinion that unless a Principal is appointed on the post of Principal in accordance with law, he cannot claim salary. In the case in hand it is not disputed that the petitioner has not been appointed on the post of Principal in accordance with the procedure prescribed under para 3 of 1983 Order and therefore he cannot be said to be a validly appointed Principal entitled for salary of the said post.
There is another aspect of the matter, We do not find from the record that the management passed any order at any point of time appointing petitioner as officiating or ad hoc principal of the College. The petitioner has placed on record only a document showing that he took over charge of the office of Principal on 20.11.2002 and the letter dated 2.12.2002 issued by the University approving his working as Principal of the College. Therefore, at the best, the petitioner was allowed to discharge duties on the post of Principal whereafter he took over charge on 20.11.2002. Appointment to a post on ad-hoc or officiating basis is different than mere discharge of duties of a higher post. In other words, the petitioner was only given current duty charge in addition to the substantive post he held. In our view, this arrangement did not result in promotion to the post of which the current duty charge was handed over to the petitioner unless an order of promotion is issued by the management in favour of the petitioner.
In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the post of Executive Engineer and was never promoted or appointed to the aforesaid post. Therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.
A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-
"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion."
It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a stop-gap arrangement. A further contention was raised that such an arrangement if continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it.
A similar issue was considered by a Division Bench of this court also in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region-I, Meerut and others, 2007 (2) ESC 987 and this Court held as under:-
"In this view of the matter, the Petitioner-Appellant has miserably failed to show that the management ever appointed her as officiating Principal of the College and, therefore, we hold that she was only allowed to discharge duties of the office of officiating Principal, but was never appointed/promoted by the management as officiating Principal of the College. The question no. 1 is answered and decided accordingly."
Since the petitioner was never appointed on the post of Principal, therefore, the question of payment of salary of the said post would not arise. Even otherwise, as we have already noticed, the management did not make any ad-hoc appointment in accordance with the procedure prescribed under 1980 Act and therefore also, a mandamus for payment of salary to the petitioner for the post of Principal cannot be issued. Even if it is assumed that the petitioner was appointed by the management on officiating basis the said appointment being inconsistent to the procedure prescribed, it would not result in conferring any right upon him to claim salary on the basis of such illegal appointment, if any.
In Prabhat Kumar Sharma and others Vs. State of U.P. and others, AIR 1996 SC 2638 considering appointment made in violation of the procedure prescribed under the Removal of Difficulties Order, the Apex Court held as under:-
"Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointee. " (Para-7)
The Apex Court agreed and upheld the Full Bench decision of this Court in Radha Raijada (supra). Similar view has been taken by this Court in a number of cases, some of which may be referred as under :
In Dr. R.K. Pandey Vs. Sukh Ram Pal Singh Sahravat 1995 (1) ESC 74, this Court held:
"As the appointment of Dr. Raman Kumar Pandey was made before two months from the date of vacancy could expire, it was wholly illegal, having been made in contravention of Section 18 of the Act."(para 7)
In Anilesh Pratap Singh Vs. State of U.P. 2003 (5) ALR 674, A Division Bench of this court held :
15. "Applying the principles laid down in the aforementioned cases we are of the considered opinion that the provisions of Section 18 of the 1982 Act is mandatory and unless and until the period of two months expires from the date of notifying the vacancy to the Commission, the Committee of Management does not get any power to fill up the vacancy on ad-hoc basis."
The aforesaid view has been followed recently in Special Appeal No. 32 of 2006 Lalta Prasad Goswami Vs. State of U.P. and Ors. Decided on 12th Januray 2006.
It would not be out of place to refer a recent Constitution Bench Judgment of this Apex Court in State of Karnataka and others Vs. Uma Devi and Others, 2006 (4) SCC 1, where it was held that an appointment which is illegal would not confer any benefit and no mandamus can be issued by the Court, which is inconsistent to the statutory provision. Therefore, we do not find any error in the order impugned in the writ petition. The writ petition, thus, lacks merit, and is, accordingly, dismissed. No order as to costs.
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