HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1155 (S/S) of 2008 Suresh Chand Sharma ….Petitioner. V e r s u s State of Uttarakhand & Others ….Respondents. Mr. Paresh Tripathi, holding brief of Mr. C.K. Sharma, Advocate for the petitioner. Mr. Ashish Joshi, Brief Holder for the State/respondents no. 1, 2 & 3. None has appeared for the respondent no. 4 Hon’ble V.K. Bist, J. Petitioner has filed this writ petition for following reliefs:- “I. This Hon’ble Court may graciously be pleased to issue writ or order direction in the nature of certiorari quashing the order dated 3.01.2007 passed by the District Education Officer, Dehradun contained in Annexure No.5 to the writ petition. II. To issue a writ of mandamus commanding the respondents to pay the salary and continuity to the petitioner on the post of Principal in the institution w.e.f. 30.06.2004 i.e. from the date on which the post of Principal fell vacant because of the retirement of the earlier principal. III. To issue such other relief or reliefs as this Hon’ble Court deems just and proper in the facts and circumstances of the case, may also be granted. IV. Award the cost of the writ petition.” 2 2. Brief facts of the case are that the petitioner was appointed in the Hindu National Inter College, Dehradun (hereinafter referred to as ‘College’) on 02.08.1986 as a reserved pool teacher/lecturer (Hindi). After completion of one year service he stood confirmed under the provisions of Chapter III Regulation 11 of the U.P. Intermediate Act, 1921 and Section 21 (b) (2) of U.P. Secondary Education Service and Selection Board Act, 1985. Since then he has been continuously working in the ‘College’. On 30-06- 2004 one Shri R.P. Sharma, then Principal of the ‘College’ retired. The petitioner was senior most teacher in the ‘College’ but was not given the charge of the post of Principal of the ‘College’ and one Shri Madhu Shudhan Dutt, who was serving in another institution, was given the charge of the Principal, after getting him transferred to the ‘College’. 3. Feeling aggrieved by this act of Committee of Management of the ‘College’, the petitioner filed writ petition no. 982 of 2004 before this Court. The said writ petition was allowed on 15th February, 2006 and the District Inspector of Schools, Dehradun was directed to pass fresh orders in the light of the observations made in the judgment within a period of one month after the receipt of the certified copy of the order. 4. Thereafter, on 08.04.2006 the District Education Officer, Dehradun passed an order by treating the petitioner as senior most lecturer and directed for handing over the 3 charge of the post of officiating Principal of the ‘College’ to him. In compliance to the order passed by the District Education Officer, Dehradun the petitioner was handed over the charge of the post of the Principal on 10.04.2006 and since then he has been continuously working in the ‘College’. Thereafter, the petitioner submitted a representation before the District Education Officer for grant of salary of the post of Principal to the petitioner from 10.04.2006. The District Education Officer, Dehradun vide order dated 03.01.2007 rejected the claim of the petitioner on the ground that since petitioner is officiating Principal of the ‘College’ he cannot be recognized as adhoc Principal. It is also mentioned in the order that as per Regulation 2 of Chapter II of U.P. Intermediate Education Act, 1921 (for short ‘the Act’) the post of the Principal is direct recruitment post and vide notification no.414/Vidhyee Evam Sansdiya Kaya/2005 dated 27.01.2005, the Uttar Pradesh Madhyamik Siksha Seva Chayan Board Adhiniyam No.5 of 1982 was repealed. Aggrieved by the said order the present writ petition has been filed. 5. The respondents no. 2 & 3 filed counter affidavit in which they have repeated the contents of rejection order in their own words. In paragraph 7 of the short counter affidavit the respondents have taken a stand that the date when the petitioner has been handed over charge of officiating Principal i.e. 10.04.2006, the provisions of Uttarakhand Act No.4 of 2005 were operative and the 4 provision regarding regularization on the post of Principal stood repealed. According to the respondents, as submitted by them in their short counter affidavit, the petitioner cannot claim salary of the Principal as services of the petitioner could not be regularized before the cut of date i.e. 27.01.2005. Paragraph 7 of the short counter affidavit is quoted below:- “7. That in view of the aforesaid circumstances, the petitioner is not entitled to get the salary on the post of Principal for the reasons that on the date when the petitioner has been handed over the charge of officiating Principal i.e. 10/04/2006, the provisions of Act No.4 are enforce and applicable in the State of Uttarakhand; whereby, provisions regarding regularization on the post of Principal has been repealed; therefore, he cannot claim the salary of Principal as the services of petitioner could not be regularized before the cut of dated i.e. 27.01.2005.” 6. Learned counsel for the petitioner argued that the respondents deliberately did not permit the petitioner to hold the post of officiating Principal on retirement of earlier Principal Shri R.P. Sharma and subsequently when writ petition filed by the petitioner was allowed, they permitted him to work as officiating Principal of the college from 10.04.2006, but illegally denied the pay and salary of the post of Principal to him. According to learned counsel for the petitioner, since the petitioner is working as Principal of the ‘College’ under the Regulations framed under the U.P. Intermediate Education Act, the petitioner is entitled for the salary and other benefits which are admissible to the 5 Principal. In support of his argument, learned counsel for the petitioner placed reliance on the judgment reported in 1982 UPLBEC Page 171 Narbdeshwar Misra Vs. District Inspector of School and 1999 (3) AWC Page 2622 Pushkar Singh Verma Vs. DIOS Meerut. 7. The learned counsel for the respondents took the same stand which is taken in counter affidavit and argued that since the services of the petitioner could not be regularized as per the provision of the Act No. 4 of 2005 and as he was appointed subsequent to the cut of date i.e. 27.01.2005, the petitioner cannot be granted benefit of pay scale of the post of Principal. 8. The argument of learned counsel for the respondents that benefit of pay scale cannot be granted to the petitioner as he was not regularized under the provision of Act No.4 of 2005 is misconceived as issue involved in the writ petition is not of regularization but is about payment of salary of the post of Principal to a senior most teacher of the institution who has worked for more than 30 days. 9. For proper adjudication, relevant regulations under the ‘Act’ are required to be seen. Proviso of Regulation 2 (1) of the Regulations provides that where a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or by death, retirement or suspension of an incumbent occurring during an educational session in the post of Head of Institution shall be filled by the promotion of the senior-most qualified 6 teacher, if any, in the highest grade in the institution. Similarly regulation 2 (3) of the Regulations provides that where a person is holding the post of Principal for a period less than 30 days, he shall not be entitled to seek the salary of the post. Regulations 2(1) & 3 of the Regulations are quoted below:- “The post of Head of Institution shall, except as provided in clause (2), be filled by direct recruitment after reference to the Selection Committee constituted under sub-section (1) of Section 16-F or, as the case may be, under sub- section (1) of Section 16-F: Provided that on the case of any institution 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 not exceeding six months or by death, retirement or suspension of an incumbent occurring during an educational session in the post of Head of Institution shall be filled by the promotion of the senior-most qualified teacher, if any, in the highest grade in the institution”. “Where the temporary vacancy in the post of Head of Institution is for a period not exceeding thirty days, the senior-most teacher in the highest grade may be allowed to work as acting head of institution, but he shall not be entitled to pay in a scale higher than the scale of pay in which he is drawing salary as such teacher”. 10. It is not disputed that the Committee of Management appointed petitioner as officiating Principal of the ‘College’ for more than 30 days which is evident from the fact that the petitioner is continuously working from 10.04.2006. He 7 was appointed as officiating Principal against the vacancy caused by the retirement of Shri R.P. Sharma. He was senior most teacher of the college and was rightly appointed as officiating Principal as contemplated by the proviso. In fact the petitioner should have been appointed on adhoc basis in the year 2004 itself when former Principal retired. Thus, the case of the petitioner is squarely covered by the Regulation 2(1) of the Regulations. It becomes more clear from the reading of clause 3 of Regulation 2 of Chapter II of the Regulations, according to which, if a vacancy of the post of Head of Institution falls vacant for not more than 30 days, the senior most teacher who works on the post of acting Head of the Institution shall not be entitled to pay scale higher than the scale of pay in which he is drawing salary of a teacher. Thus, inference can be drawn that such teacher, who works on the posts of acting Head of the Institution for more than 30 days, shall be entitled for the salary of the Principal. The present case is squarely covered by the judgment of Division Bench of Allahabad High Court reported in 1982 UPLBEC, 171 and 1999 (3) AWC 2622. Therefore, under the provisions of Regulation 2 (1) of Chapter II of the Regulations, the petitioner is entitled for the salary of the Principal. 11. In view of the aforesaid discussion, the writ petition is allowed with costs of Rs.5,000/-. The order dated 03.01.2007 passed by the District Education Officer, Dehradun is quashed. The respondents are directed to 8 make payment of salary to the petitioner on the post of Principal in the college w.e.f. 10.04.2006. AKM (V.K. Bist, J.) 13.07.2009