Om Saran Tripathi vs State of U.P. and Others

Amitava Lala, J.—The petitioner has made this writ petition to direct the respondents to pay the salary and emoluments of the post of Principal to the petitioner when he has acted as Principal in the institution from the month of July, 2008 till date. He relied upon the judgments of this Bench dated 18th September, 2008 passed in C.M.W.P. No. 49172 of 2008, Dr. V.K. Tiwari v. Director of Education and Ors.

Learned standing counsel has taken a different view in view of the judgment in Daljeet Singh Vs. State of U.P. and Others, to substantiate that there is distinction between a Government servant who is promoted to higher post and who is discharging duties of the higher post on the exigencies. Mere discharge of such duties in the higher post cannot be treated as promotion, therefore, the person acted as ad hoc Principal in the institution cannot get salary and emoluments of the regular Principal.

Mr. Arvind Srivastava, learned Counsel appearing for the petitioner, has relied upon another Division Bench judgment in Km. Renu Tiwari and others v. Director, Higher Education, Allahabad (U.P.) and Ors. 1997 (1) ESC 164 (All) : 1997 (1) AWC 117. In that case in considering the respective Regularization Rules, 1979, the Court held that practice of ad hocism has been deprecated by the Supreme Court in numerous cases. In a number of cases, the Supreme Court indicated equal pay for equal work and has directed the concerned authorities for making payment of same emoluments to the incumbents working in the organization.

In any event, upon going through the judgment, we have also gone through the counter-affidavit. In sub-para (e) of para 3 of the same we find that stand factually taken by the State is that unless the vacancy is notified by the Committee of Management to the Commission for filling up the post of Principal on regular basis, the officiating Principal cannot claim salary of the regular Principal for the period he officiated as Principal of the college.

We have come to know that the vacancy of the Principal has not been filled for a long period, i.e., for a period of 6 years, therefore, the senior-most teacher was directed to discharge the duty of the Principal which is not a post of promotion. Section 2(19) of the U.P. State Universities Act, 1973 gives definition of the "teacher" which includes a Principal. Principal will be selected by the Commission from amongst the senior-most teacher. There is no scope of promotion as such, in totality, the senior-most teacher, who is officiating for the post of Principal, is not being promoted to apply the ratio of the judgment laid down in Daljeet Singh (supra).

Thus, coming back to the original position, we are of the view that we cannot deviate ourselves from our earlier stand as we have taken in C.M.W.P. No. 49172 of 2008. Having no distinguishing feature between our decision relied upon in earlier judgments and the judgment of Daljeet Singh (supra), therefore, the writ petition is disposed of accordingly, however, without imposing any cost. The respondents are directed to pay salary and emoluments of the petitioner for the post of Principal when he was officiating as principal within the period of three months from the date of communication of this order.

Sishir Kumar, J.

I agree.