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JHAMMAN LAL GANGWAR versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Jhamman Lal Gangwar v. State Of U.P. And Others - WRIT - A No. 18123 of 2007 [2007] RD-AH 6327 (6 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 39

Civil Misc. Writ Petition No. 18123 of 2007

Jhamman Lal Gangwar

Versus

State of U.P and others

Hon'ble V.K.Shukla,J.

In the District of Bareilly there is recognised institution known as Dhani Ram Inter College Damkhoda, District Bareilly. Affairs of the said institution is to be run and managed as per the provisions as contained in U.P. Act No. II of 1921. Said institution is grant-in-aid list of the State Government and the provisions of U.P. Act No. 24 of 1971 are fully applicable to the said institution. Selection and appointment on the post of Principal, Lecturer and L.T. Grade Teachers is to be made strictly as per the provisions as contained in U.P. Secondary Education Services Selection Board Act 1982 (U.P. Act V of 1982). In the institution concerned one Prem Shankar had been performing and discharging duties as ad-hoc Principal of the institution. Said Prem Shanker attained the age of superannuation on 30.06.2003 and in this background Managing Committee of the Institution vide resolution No. 6 of 28.06.2003 passed resolution according handing over the charge of the office of Principal to adhoc promotion to the petitioner as Principal of the institution. Said resolution has duly been transmitted to the District Inspector of Schools. Record in question reveals that District Inspector of Schools on 24.07.2003 accorded approval to the said resolution wherein charge of Principal had been handed over to petitioner w.e.f. 01.07.2003 and signature of petitioner was attested as Officiating Principal of the institution. It appears that thereafter Committee of Management of the institution on 04.02.2004 transmitted the entire papers in respect of ad-hoc appointment as Principal to District Inspector of Schools Bareilly and thereafter ad-hoc approval was also accorded by District Inspector of Schools, Bareilly on 21.07.2004. Thereafter salary has been fixed in Principal's Grade with effect from 22.07.2004. Submission of the petitioner is that as he has been performing and discharging duties of Principal with effect from 01.07.2003 as such salary shall be ensured to him from the said date in place of 22.07.2004. Petitioner has preferred Civil Misc. Writ Petition No. 4827 of 2007 before this Court and this Court on 31.01.2007 asked the District Inspector of Schools to take appropriate decision on the same and thereafter District Inspector of Schools has passed order on 12.03.2007 which is subject matter of challenge before this Court.

Both the parties have agreed, that matter be decided finally, on the basis of record available.

Learned counsel for the petitioner Sri P.N. Gangwar, contended with vehemence that when it is accepted that petitioner has been functioning as Principal with effect from 01.07.2003 then there is no occasion to deprive the salary on the post of Principal from the date when petitioner has started functioned as Officiating Principal as such view which has been taken is incorrect view and same is liable to be quashed.

Learned Standing Counsel on the other hand contended that the view which has been taken is correct view, as such no interference be made.

In order to appreciate respective arguments Section 18 of U.P. Act No. V of 1982 is being quoted below:

Section 18 Ad hoc Principals or Headmasters -(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 to 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 is 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 92) shall cease to have effect from when the candidate recommended by the Board joins the post."

Bare perusal of the provisions quoted above would go to show that 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 in the Lecturer's Grade in respect of vacancy on the post of Principal 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 under sub-section (1) the Inspector shall himself issue the order to 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 is pursuance of such order of promotion. Sub Section (3) of Section 18 takes care of the situation where the teacher to who order of promotion is issued under Sub Section 2, unable to to join the post due to any or omission on the part of Management, such teacher may submit joining report to the inspector then he shall 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. Sub-section (4) of Section 18 states that every appointment of an ad hoc Principal or Headmaster under sub-section (1) or sub-section (2) shall cease to have effect from the date when the candidate recommended by the Board joins the post.

In the present case undisputed position which is emerging that the post of Principal fell vacant on 30.06.2003 and the Committee of Management passed resolution on 28.06.2003 for promotion of the petitioner as Officiating Principal with effect from 01.07.2003. Said resolution has been validly accepted by District Inspector of Schools on 24.07.2003. Subsequently to the same for ad-hoc promotion, resolution has been passed same was duly sent to the office of District Inspector of Schools on 04.07.2004. Thereafter said resolution has been approved on 21.07.2004. Prem Shanker the earlier incumbent who had attained age of superannuation on 30.06.2003, had been functioning as ad-hoc Principal, by virtue of being senior most Lecturer in the institution. Here vacancy had been notified in the past, and as no one had been recommended ad-hoc arrangement to the office of Principal, contained, earlier by promotion of Prem Shankar and thereafter by promotion of petitioner. Section 18 obligates the Management to accord promotion to the senior most teacher, and only in the event of failure on the part of Management, then the District Inspector of Schools can exercise and invoke power vested under  sub-section (2) and (3) of Section 18 of the Act. Failure to exercise authority, under sub-section (1) of Section 18 is sene-qua-non, for exercising authority under sub-section (2) and (3) of Section 18.  

Here Management has accorded promotion, and w.e.f. 01.07.2003, petitioner has been performing and discharging duties as Principal and District Inspector of Schools  had also acknowledged and approved the same on 24.07.2003 and 21.07.2004 respectively, consequently no orders were required to be passed by District Inspector of Schools in terms of sub-section (2) and (3) of Section 18, as such from the date when petitioner had joined and had been performing and discharging duties, salary was entitled to be paid to him. Support for this conclusion, can also be taken from the language of sub-section (2) of Section 18, wherein it has been provided for, that Inspector shall himself issue the order of promotion and Principal/Headmaster, shall be entitled to get salary from the date he joins. Key words are "entitled to get salary, from the date he joins." Same view will have to be taken where Management, voluntarily promotes incumbent, and said incumbent shall be entitled for salary qua the said post. Once petitioner has functioned as Principal with effect from 01.07.2003 then there is no occasion to deprive the petitioner from salary which is admissible to the said post.

This Court in the case of Dhaenshwar Singh Chauhand Vs. District Inspector of Schools Badaun reported in 1980 UPLBEC 236 in the context of Chapter II Regulation 2(3) of U.P. Act No. II of 1921 has taken the view that senior most teacher appointed as Officiating Principal of the institution, on the retirement of permanent principal is entitled for salary in Principal's Grade. Thereafter in the case of Narbdeshwar Misra Vs. District Inspector of Schools, Deroria & others reported in 1982, UPLBEC, 171 this Court has taken the view that   where arrangement has been made for more than 30 days  on the post of Principal then incumbent is entitled for salary on the post of Principal. Same principals are liable to be extended in the present case.

Consequently present writ petition is allowed. Order dated 12.03.2007 passed by District Inspector of Schools, Bareilly is hereby quashed and set aside. Petitioner is entitled for salary with effect from 01.07.2003 till the date regular selected candidate comes and join on the said post.

No orders as to cost.  

06.04.2007

Dhruv


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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