Khadga Ram Laper vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The petitioner has invoked the jurisdiction of this Court, by way of the present writ petition, seeking a writ of certiorari to quash the order dated 19.12.2018 passed by respondent nos. 1 to 3; and a writ of mandamus commanding the respondents to pay the petitioner salary of the post of Principal w.e.f. 30.11.2016; continue to pay him salary of the said post, month by month, in the Government Inter College, Karki Nagar, Pithoragarh; and give him regular appointment in the post of Principal in Government Inter College, Karki Nagar, Pithoragarh.

Facts, to the limited extent necessary, are that the petitioner, a post graduate in English and having a Bachelors degree in Education, was appointed, on an adhoc basis, as a Lecturer (English) in the Inter College, Karki Nagar, Dharam Ghar, District-Pithoragarh on 14.09.1992 by a selection committee constituted by the Government Order dated 16.07.1992. The Inter-College, Karki Nagar, Pithoragarh was then an aided college, and was run by a Committee of Management. The petitioner's services were regularized as a Lecturer (English) on 31.03.1999 by the Regional Committee constituted by the Government Order dated 27.07.1998, and he was placed on probation for a period of one year by the District Inspector of Schools, Pithoragarh. On 20.12.2003, the District Inspector of Schools, Pithoragarh passed an order whereby the petitioner, who was working as a Lecturer (English) in Inter College, Karki Nagar, Pithoragarh, was given selection grade of Rs. 7500-12000 w.e.f. 17.09.2002 after completion of ten years of continuous service. Thereafter, Sri Dan Singh Bafila, who was working as the Principal of the Inter College, Karki Nagar, Pithoragarh, retired from service on 31.10.2009. It is not in dispute that the petitioner has been continuing to discharge the functions of an in-charge Principal ever since 01.11.2009 till date.

On the recommendations of the Committee of Management, the Regional Additional Director (Secondary Education), Kumaon Mandal, Nainital, passed order dated 09.07.2014 promoting the petitioner as a down-grade Principal, in the Inter College, Karki Nagar, Pithoragarh w.e.f. 18.10.2011, under the amended 2011 Regulations. While matters stood thus, on the basis of a proposal submitted by the Committee of Management, a provincialisation order was passed on 09.11.2016, and the entire property and staff of the said College was taken over by the Block Education Officer, Berinag, Pithoragarh by proceedings dated 30.11.2016. On the very same day, i.e. 30.11.2016, the Block Education Officer, in turn, handed over the entire property and records, of the said Inter College, to the in-charge Principal i.e. the petitioner herein.

By notification dated 18.10.2011, the Uttarakhand School Education Regulations, 2009 were amended by the Uttarakhand School Education (First Amendment) Regulations, 2011 and, in terms of the said amendment, an incumbent, who has worked as a down-grade Principal for five years, was entitled to be granted the pay-scale of a Principal, Inter College. The petitioner was promoted as a down-grade Principal w.e.f. 18.10.2011, and completed five years of service as a down-grade Principal on 18.10.2016 by which date the Inter College, Karki Nagar, Pithoragarh was still a Government aided College, and was not yet not provincialised.

The petitioner received the salary of a down-grade Principal of 15,600-39,100/-, with a grade-pay of Rs. 5400/-, till 29.11.2016. He claims that he was not paid salary thereafter, by the respondents, so far. The Secretary, Education, State of Uttarakhand passed an order on 11.06.2018, and the second respondent thereafter passed an order on 18.07.2018 directing that the petitioner be appointed only as a Lecturer in the Government Inter College, Karki Nagar, Pithoragarh, and not as the Principal of the said College. Aggrieved thereby, the petitioner filed Writ Petition (S/B) No. 352 of 2018 and a Division Bench of this Court, by its order dated 25.09.2018, set aside the earlier orders dated 11.06.2018 and 18.07.2018, and directed the respondents to reconsider the matter. Thereafter the first respondent passed an order dated 19.12.2018, rejecting the petitioner's claim which has been impugned in the present writ petition.

In the counter affidavit, filed on behalf of respondent nos. 2 to 4, it is stated that, for promotion to the regular post of Principal, a person, after completion of five years in the post of down-grade Principal, could be issued an order of promotion by the appointing authority i.e. the Manager of the Inter College; in the present case neither was the petitioner's name recommended by the Committee of Management of the concerned institution, nor was any recommendation made to promote the petitioner; at the time of provincialisation of the Inter College, the petitioner was not working as a regular Principal and could not, therefore, claim the salary of a Principal; in compliance with the order passed by this Court on 25.09.2018, the petitioner was adjusted, by the order of Secretary, School Education, in the post of a Lecturer against the created posts; at the time of provincialisation of the said Inter College, the petitioner was not legally posted as a regular Principal and, as such, he was rightly appointed in the post of a Lecturer; and as per Regulation 2(1) of Chapter 2 of the Uttarakhand School Education (First Amendment) Regulations, 2011, the senior-most regular Lecturer of the concerned institution, who possessed the required qualifications and has been granted selection grade after ten years of regular service, was entitled to be given the benefit of the down-grade pay-scale of a Principal, and to be promoted to the post of Principal after completing five years of service after the pay scale of a down-grade Principal was granted to him.

It is further stated in the counter affidavit that, by the time the order of provincialisation was passed on 09.11.2016, the petitioner had completed 5 years 21 days as a down-grade Principal and, consequently, the Committee of Management ought to have issued orders promoting the petitioner as a regular Principal; since the Committee of Management did not issue any such order, as on the date of provincialisation, the substantive post of the petitioner was that of a Lecturer; and since, in terms of the 2006 Rules, all senior Lecturers in all Government Colleges in the State are eligible to be considered for promotion to the post of Principal, the petitioner will have to await his turn for promotion to the said post.

Employees working in government aided institutions are governed by the 2009 Regulations and, in terms thereof, a Lecturer, who has put in ten years of service after being extended the selection grade of pay, is eligible to be promoted as a down-grade Principal. The petitioner was so promoted by the proceedings of the Regional Additional Director, Secondary Education dated 09.07.2014 w.e.f. 18.10.2011. The said Regulations, as amended in the year 2011, also stipulate that, on completion of five years of service as a down-grade Principal in a Government Aided Inter College, the said down-grade Principal is eligible to be promoted to the post of Principal. This order of promotion is required to be made by the Committee of Management of the Government Aided Inter College and, on the basis of their proposal, the Regional Director is required to accord his approval thereto. Despite the petitioner having completed five years of service, as a down-grade Principal, on 18.10.2016, and though he was eligible for promotion to the post of Principal in a Government Aided Inter College on that date, the Committee of Management did not propose his name, for promotion as a Principal, to the Regional Director; and, consequently, no orders were passed promoting the petitioner to the post of Principal.

Unlike Government aided inter-colleges, which are governed by the 2009 Regulations, Government inter-colleges (those owned and controlled by the Government) are governed by the Uttaranchal Educational (General Education Cadre) Service Rules, 2006. Part III of the said Rules relates to Recruitment. Rule 5, thereunder, provides that recruitment to various categories of posts in the service shall be made from the sources referred to therein. For the post of Principal, Government Intermediate College, substantively appointed Principals of the Government Intermediate Colleges, Government Girls Intermediate Colleges (Group 'B' higher) are to be considered first, for promotion, by a duly constituted selection committee; and, thereafter, recruitment to the post of Principal is required to be effected from Head Masters of the Government Higher Secondary Schools etc.

Mr. B.P.S. Mer, learned Standing Counsel for the State Government, would submit that, since the petitioner was not promoted as a Principal by the Committee of Management, before the order of provincialisation was passed on 09.11.2016, and as there exists no post of a down-grade Principal in Government Inter Colleges, the petitioner was rightly adjusted in the post of a Lecturer in a Government Inter College, and was extended the pay-scale applicable to a Lecturer alone, and not that of a Principal.

We asked Mr. B.P.S. Mer, learned Standing Counsel, whether an employee in a Government Aided Inter College, who has already been promoted to the post of Principal pursuant to the recommendations made by the Committee of Management, would be reverted to the post of Lecturer on provincialisation of the said Inter College, and its being treated as a Government Inter College thereafter. Learned Standing Counsel would fairly state that, in such a case, the Principal of a Government Aided Inter College would, on provincialisation, continue to be the Principal of the said Government Inter College. He would, however, contend that, in the present case, since the petitioner was not promoted as the Principal of the Government Aided Inter College, Karki Nagar, Pithoragarh, before the order of provincialisation was passed on 09.11.2016, and as there is no post of down-grade Principal in Government inter-colleges, he could only be adjusted in the post of Lecturer, and not be treated as a Principal.

Mr. B.P.S. Mer, learned Standing Counsel for the State Government, would further state that, notwithstanding the petitioner being given charge of the post of Principal even after provincialisation on 09.11.2016, the Rules do not provide for payment of the salary of a Principal to the petitioner; he is only entitled to the salary of a Lecturer; and the post of Lecturer is not even in the feeder category for promotion/appointment to the post of Principal in a Government Inter College.

It is not in dispute that the petitioner has been discharging the duties of a Principal of the Inter College, Karki Nagar, Pithoragarh both before and after provincialisation of the said Inter College i.e. ever since the earlier Principal retired on 31.10.2009, and he was given charge of the post of Principal on 01.11.2009; and he continues to discharge such functions even as on date.

While fairly stating that the petitioner continues to be the in-charge Principal of the Government Inter College, Karki Nagar, Pithoragarh even as on date, Mr. B.P.S. Mer, learned Standing Counsel, would submit that, notwithstanding his being given the charge of a Principal, the petitioner would only be entitled to the pay-scale of a Lecturer, in the absence of any provision in the Rules obligating the State to pay the petitioner the salary of a Principal, despite the fact that he continues to discharge the function of a Principal ever since 01.11.2009 till date (i.e. for the past nearly a decade).

The very fact that the State Government continues to extract work of an in-charge Principal from the petitioner would itself show that there is nothing adverse against him. As noted hereinabove the petitioner should have, since he had completed five years of service as a down-grade Principal on 18.10.2016, been promoted as the Principal of the said Government Aided Inter College; and, if he had been so promoted, before provincialisation on 09.11.2016, he would then have continued to be the Principal of the subject Inter College even after provincialisation.

As the petitioner completed five years of service as a down-grade Principal on 18.10.2016, prior to 09.11.2016 when the order of provincialisation was passed, failure of the Committee of Management, of the Government Aided Inter College, to propose the name of the petitioner for promotion to the post of Principal should not result in the petitioner being denied his rightful entitlement. It is not as if promotion to the post of Principal, in Government Aided Inter Colleges, is by a process of selection undertaken by a Selection Committee. A person, who has been promoted as a down-grade Principal, is entitled to be promoted as a Principal on his/her completing five years of service as a down-grade Principal. The fortuitous circumstance of the Committee of Management not proposing the petitioner's case for promotion, before the order of provincialisation was passed on 09.11.2016, should not disentitle the petitioner from being extended the monetary benefits attached to the post of a Principal since, admittedly, he continues to function as the in-charge Principal ever since 01.11.2009 more than seven years before the order of provincialisation dated 09.11.2016 was issued, and even thereafter for the past two and a half years i.e. from 09.11.2016 till date.

While considering the provisions of Chapter II of the 2009 Regulations, which apply to a government aided institution, a Full Bench of this Court, in Kanti Prasad Dadpuri and 3 others Vs. State of Uttarakhand and others : 2012 (1) U.D. 589, observed:

"........A combined reading of Regulation 2(1) alongwith the proviso and Regulation 2(3) of the Regulations leaves no room for doubt that if the vacancy on the post of Principal is for more than 30 days, then the senior-most teacher would be entitled to be promoted and, consequently, would be entitled to all the benefits of the post of Principal, namely, the salary of the post of Principal.

In Dhaneshwar Singh Chauhan Vs. District Inspector of Schools, Badaun 1980 UPLBEC 286, a Division Bench of the Allahabad High Court held that a teacher officiating on the post of Principal was entitled to receive the salary in the Principal's grade as provided by the Government Order dated 18.01.1974. In Narbdeshwar Mishra Vs. The District Inspector of School, Deoria & others 1982 UPLBEC 171, the Division Bench of the Allahabad High Court held that where a temporary vacancy on the post of the head of the institution exceeds thirty days, the senior-most teacher would be allowed to work and would be entitled for salary. In Soloman Morar Jha Vs. District Inspector of Schools, Deoria & others 1982 UPLBEC 171, the Division Bench of the Allahabad High Court held that where a temporary vacancy on the post of the head of the institution exceeds thirty days, the senior-most teacher would be allowed to work and would be entitled for salary. In Soloman Morar Jha Vs. District Inspector of Schools, Deoria & others 1985 UPLBEC 113, a Division Bench of the Allahabad High Court held that the proviso to Regulation 2(1) of Chapter II of the Regulations does not prohibit the payment of salary to a Lecturer in the Principal's grade for the period during which he officiates on that post. In Smt. Rama Rati Vs.State of U.P. through Education Secretary, Lucknow & others 1987 UPLBEC 1009, a Division Bench of the Allahabad High Court held that the promotion made under the proviso to Regulation 2(1) of the Regulation indicates that the promotee is entitled to all the benefits of the post and therefore entitled to salary in the grade of Principal. In Pushkar Singh Verma Vs. District Inspector of Schools, Meerut & others 1999 (3) UPLBEC 1728, it was held that the petitioner is entitled to the salary of Principal for the period he officiated on the post of Principal.

The aforesaid decisions support the petitioners' contention.

In the light of the aforesaid, the learned Single Judge in Suresh Chand Sharma's case (supra) considered the provisions of Regulation 2(1), its proviso and Regulation 2(3) and, thereafter, issued a direction that since the petitioner was appointed as Officiating Principal of the college on a vacancy, which exceeded 30 days, the respondents were directed to make the payment of salary to the said petitioner from the date when he started officiating as the Principal in the college. The said decision of the learned Single Judge was affirmed by the Division Bench in Special Appeal No.45 of 2010 by its decision dated 15th April, 2010. The Division Bench while affirming the judgment of the learned Single Judge considered Regulation 2(3) of the Regulation and found that since the said petitioner continued to officiate as Principal for more than 30 days uninterruptedly, he was entitled for the salary on the post of Principal on which he had rendered uninterruptedly service for more than 30 days. The Division Bench held that if such pay was not given, it would be violative of Article 14 of the Constitution of India. The Division Bench held that an employee was entitled to the pay of the post against which he was required to render services.

In the light of the aforesaid, we are of the opinion that the decision rendered by the Division Bench in Special Appeal No.45 of 2010 dated 15th April, 2010 was in consonance with the provisions provided in Regulation 2(1) and Regulation 2(3) of the Regulations. We are in complete agreement with the said decision.

In view of the aforesaid, the court finds that the petitioners were appointed on a vacancy which was more than 30 days. The appointment as Officiating Principal was approved by the District Education Officer. The petitioners are working on the post of Principal, which has exceeded 30 days, and therefore became entitled for the salary on the post on which they were rendering the services. Since appointments by direct recruitment by the Committee of Management was stayed by a Government Order, the petitioners were allowed to continue to officiate as Principal and, consequently, the petitioners are entitled to receive the salary on the post of Principal.

In view of the aforesaid, the writ petition is allowed. A writ of mandamus is issued to the State respondents to pay to the petitioner's the salary of the post of Principal from the date when the petitioners took charge as Officiating Principal in the institution concerned. Such arrears of salary shall be paid to the petitioners within three months from the date of production of a certified copy of this order. In the circumstances of the case, parties shall bear their own cost......."

(emphasis supplied)

While it is no doubt true that the aforesaid observations of the Full Bench of this Court, in Kanti Prasad Dadpuri and 3 others Vs. State of Uttarakhand and others : 2012 (1) U.D. 589, related to payment of salary of a Principal in a Government Aided Institution and not in a Government Inter College, the petitioner was entitled to be paid the salary of a Principal on completion of 30 days as the in-charge Principal from 01.11.2009; and if he had been extended the pay-scale of a Principal, the said pay-scale could not have been reduced after provincialisation and would have been required to be continued to be paid to him till he was kept in charge of the post of Principal. The mere fact that the petitioner was not extended the said benefit, while he was discharging the duties of an in-charge Principal in a Government Aided Inter College, should not result in his being denied payment of the emoluments applicable to the post of Principal after provincialisation.

Since the petitioner has restricted his prayer, for payment of salary in the post of a Principal only from 30.11.2016 and has not claimed the said monetary benefit when the said Inter College was a Government Aided Inter College, the respondents are directed to pay the petitioner the pay-scale applicable to the post of Principal w.e.f. 30.11.2016. The entire arrears shall be paid to the petitioner within four months from the date of receipt of a certified copy of this order. The petitioner shall be continued to be paid the salary of a Principal as long as he continues to hold charge of the post of Principal in the subject Government Inter College.

We, however, see no justification in granting the petitioner the other relief sought for by him i.e. of regular appointment to the post of Principal, since the 2006 Rules prescribe a procedure of selection through the aegis of a Selection Committee, from among those who are eligible for promotion as a Principal. Suffice it, in such circumstances, to dispose of the writ petition directing the respondents herein to pay the petitioner arrears of salary, applicable to the post of a Principal from 30.11.2016 onwards till date, within four months from the date of production of a certified copy of this order. The respondents shall continue to pay the petitioner, the pay-scale applicable to the post of a Principal, as long as he continues to hold charge of the post of Principal of the said Government Inter College.

The writ petition is, accordingly, disposed of. No costs.