HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 1987 of 2009
Petitioner :- Surendra Prasad Agnihotri
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Yogesh Kumar Saxena
Respondent Counsel :- C.S.C.,A.K. Dixit, Harindra Prasad,S.R. Singh And
Reserved
Chief Justice's Court
Case :- SPECIAL APPEAL No. - 1987 of 2009
Petitioner :- Surendra Prasad Agnihotri
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Yogesh Kumar Saxena
Respondent Counsel :- C.S.C.,A.K. Dixit, Harindra Prasad,S.R. Singh And
Case :- SPECIAL APPEAL No. - 1991 of
2009
Petitioner :- Abu Mohd. Khan
Respondent :- State Of U.P. & Others
Petitioner Counsel :- J.P. Singh
Respondent Counsel :- C.S.C.,B.N. Pandey
Hon'ble Chandramauli Kumar Prasad,Chief Justice
Hon'ble Pankaj Mithal,J.
In both the above appeals a common question of law is involved and, as such have been taken up and heard together.
The writ petitioner - appellants (hereinafter referred to as the 'appellants') were appointed as Officiating Principal in the respective institutions on the basis of their seniority and were paid salary in the pay-scale of Principal. Their officiating appointment continued for long and in the meantime they attained the age of superannuation in the middle of the academic session and, as such by virtue of Regulation 21 contained in Chapter III of the Regulations framed under the Intermediate Education Act, 1921 they became entitle to function till the end of the academic session i.e. 30th June, 2010. However, by the order of the District Inspector of Schools dated 16.11.2009 and that of the Manager of the Institution dated 13.11.2009 respectively they have been denied functioning as Officiating Principal and it has been provided that they would continue only as a Teacher till 30th June.
The aforesaid orders were assailed by the appellants by filing separate writ petitions with a further prayer to allow them to work as Officiating Principal and to continue to pay salary of the post of Principal. The writ petitions have been dismissed by the learned Single Judge on the ground that the Officiating Principal has no right to the post and appellants are only entitled to continue as Teachers till the end of academic session. In dismissing the writ petitions reliance has been placed upon earlier Division Bench decisions of the Court.
Aggrieved by the dismissal of their respective writ petitions by the learned Single Judge these appeals under Rule 5 Chapter VIII of the High Court Rules, 1952 have been preferred.
We have heard Sri Ashok Khare, Senior Advocate assisted by Sri J.P. Singh and Sri Yogesh Saxena for the appellants, learned Standing Counsel for the State of U.P. and Sri B.N. Pandey for respondents no.5 and 6 in Special Appeal No.1991 of 2009.
Learned counsel for the appellants submitted that the appellants who have been appointed as Officiating Principals would continue to work as Officiating Principals even in the extended period as under Regulation 21 the services of the appellants are deemed to have been automatically extended till the end of academic session. A distinction has also been sought to be made between "re-appointment after retirement" and "extension of service" and it is submitted that Regulation 21 provides for extension of service and not re-appointment. It is also contended that the action of the respondents impugned in the writ petitions amounts to reversion of the appellants.
The services of principal, headmaster, teacher and other employees of the intermediate colleges in the State of U.P. are governed by the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the 'Act'). Section 16 - G of the Act provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations. In exercise of powers under Section 15 of the Act the Board has framed Regulations. The said Regulations in Chapter III contains Regulation 21 which provides for 60 years as the age of superannuation of its teaching and non-teaching staff and further that if the age of superannuation of the teaching staff falls in between the academic session then they shall continue to serve the institution till 30th June ie. the end of the session. This Regulation permitting continuation of service of the teaching staff beyond the date of superannuation is only for the benefit of the students so that the serving teacher continues to teach students till the completion of the ongoing academic session. The aforesaid Regulation 21 of the Regulations is quoted below:
"21. Superannuation age of Principal, Headmaster, Teacher and other employees would be 60 years. If abovesaid superannuation age of any Principal, Headmaster and Teacher falls on any date in between 2nd July and 30th June, except in the condition when he himself, before two months of the date of superannuation, furnishes in writing the information for not seeking extension of service, extension of service up to 30th June shall be deemed to be conferred on him so that after summer vacation, substitute can be arranged in the month of July. In addition to this, extension of service could be granted only in such special cases which may be decided by the State Government.
If date of superannuation of any clerk or fourth class employee falls in the middle of any month, his extension of service would be deemed to be given up to the last date of that month. But if the date of appointment of any employee falls on the first date of any month, he shall be retired on the last date of the preceding month."
A bare perusal of the aforesaid Regulation make it clear that the service of the teaching staff shall stand automatically extended upto 30th June next if the age of superannuation falls in between 2nd July and 30th June. So it envisages 'extension' in service as distinguished from 're-appointment' where the seniority gets disturbed.
In the case of R.C.Gupta (Dr.) Vs. State of U.P. and others (2002) 1 UPLBEC 767, it has been held that ad hoc, temporary or officiating Principal has no right to the post and the Officiating Principal after he crosses the age of superannuation can only continue as Lecturer till the end of the academic session. This case however, relates to Officiating Principal of a Degree College where the statutes governing the service conditions are entirely different. The Court therein was not called upon to examine the continuation of the Officiating Principal of a intermediate college in the light of Regulation 21 of Chapter III of the Regulations which provides for extension in service as opposed to re-appointment.
In the case of Hari Om Tatsat Brahma Shukla Vs. State of U.P. and others 2006 (10) ADJ 767 the controversy was entirely different. In the said case the Division Bench ruled that after attaining age of superannuation neither higher post can be conferred nor any claim for promotion on a higher post can be accepted. In the instant cases the appellants have been appointed as Officiating Principals prior to attaining the age of superannuation and there is no claim for higher post during the extended period of service.
Similarly, the decision rendered by the Division Bench in the case of Raja Ram Chowdhary Vs. Satya Narain Gupta 2003 (2) ESC 956 as no application as there also it was only observed that a teacher during extension of service after superannuation would not be entitle to claim ad hoc appointment of Principal.
It is also well acknowledged that Officiating Principal is also entitle to the same salary and emoluments as are admissible to the post of Principal which are obviously higher than those admissible to a Teacher of the institution. At the same time on retirement of Officiating Principal his pension and other post retiral dues are fixed according to the salary last drawn i.e. Salary of the post of the Principal. The salary as well as pension would get affected in case an Officiating Principal is made to continue and retire simply as a Teacher.
Beside above, it would also tantamount to placing senior most Teacher who had officiated as Principal for a long time under a comparatively junior Teacher who may replace him as Officiating Principal on the basis of his seniority vis-a-vis the other teachers working at the institution.
It is true that the substantive post of Officiating Principal is that of a Teacher and he has no vested right to continue as Officiating Principal but nonetheless once a teacher on the basis of his seniority is appointed as Officiating Principal some rights do accrue in his favour which ordinarily are not liable to be curtailed unless a regularly selected principal joins and not by a person who is junior to him and seeks to replace him in officiating capacity only.
In the absence of regularly selected Principal it also appears to be more equitable to allow the Officiating Principal to continue till he actually demits office at the end of the session on 30th June. The Officiating Principal by virtue of his experience has a better claim and the overall interest of the institution also demands continuity not only of a Teacher but that of the Principal/Officiating Principal till the completion of the session.
However, with utmost respect, without taking these important aspects into consideration, a Division Bench of this Court in the case of Shri Nath Sahai Vs. Devendra Nath Dwivedi and others 2008 (8) ADJ 337 held that a teacher who was granted extension of two years service in view of State level award given to him, during the extended period of his service is not entitled to claim the post of Principal of the institution which had fallen vacant in the meantime. In contrast, the appellants herein were given officiating appointment as Principal of the respective institutions much earlier to attaining the age of superannuation and their claim is for continuation in the same status which they were enjoying on the respective dates of their superannuation and not any higher or superior rights.
In view of the aforesaid facts and circumstances and the legal position, we make reference for constitution of a Larger Bench to deal with the following question of law:
"Whether a teacher of Intermediate College who has already been appointed as officiating principal of the Institution by virtue of his seniority on attaining the age of superannuation in the extended period of his service shall continue as officiating principal or simply as a teacher?"
Let the papers of these two special appeals be placed before the Hon'ble Chief Justice under Chapter V Rule 6 of the High Court Rules, 1952 for constituting a Larger Bench for answering the question of law formulated above or any other ancillary question which may be found fit and reasonable under the aforesaid facts and circumstances of the case.
Date : January 13th, 2010
BK (Pankaj Mithal, J.) (C.K.Prasad, C.J.)
Petitioner :- Abu Mohd. Khan
Respondent :- State Of U.P. & Others
Petitioner Counsel :- J.P. Singh
Respondent Counsel :- C.S.C.,B.N. Pandey
Hon'ble Chandramauli Kumar Prasad,Chief Justice
Hon'ble Pankaj Mithal,J.
In both the above appeals a common question of law is involved and, as such have been taken up and heard together.
The writ petitioner - appellants (hereinafter referred to as the 'appellants') were appointed as Officiating Principal in the respective institutions on the basis of their seniority and were paid salary in the pay-scale of Principal. Their officiating appointment continued for long and in the meantime they attained the age of superannuation in the middle of the academic session and, as such by virtue of Regulation 21 contained in Chapter III of the Regulations framed under the Intermediate Education Act, 1921 they became entitle to function till the end of the academic session i.e. 30th June, 2010. However, by the order of the District Inspector of Schools dated 16.11.2009 and that of the Manager of the Institution dated 13.11.2009 respectively they have been denied functioning as Officiating Principal and it has been provided that they would continue only as a Teacher till 30th June.
The aforesaid orders were assailed by the appellants by filing separate writ petitions with a further prayer to allow them to work as Officiating Principal and to continue to pay salary of the post of Principal. The writ petitions have been dismissed by the learned Single Judge on the ground that the Officiating Principal has no right to the post and appellants are only entitled to continue as Teachers till the end of academic session. In dismissing the writ petitions reliance has been placed upon earlier Division Bench decisions of the Court.
Aggrieved by the dismissal of their respective writ petitions by the learned Single Judge these appeals under Rule 5 Chapter VIII of the High Court Rules, 1952 have been preferred.
We have heard Sri Ashok Khare, Senior Advocate assisted by Sri J.P. Singh and Sri Yogesh Saxena for the appellants, learned Standing Counsel for the State of U.P. and Sri B.N. Pandey for respondents no.5 and 6 in Special Appeal No.1991 of 2009.
Learned counsel for the appellants submitted that the appellants who have been appointed as Officiating Principals would continue to work as Officiating Principals even in the extended period as under Regulation 21 the services of the appellants are deemed to have been automatically extended till the end of academic session. A distinction has also been sought to be made between "re-appointment after retirement" and "extension of service" and it is submitted that Regulation 21 provides for extension of service and not re-appointment. It is also contended that the action of the respondents impugned in the writ petitions amounts to reversion of the appellants.
The services of principal, headmaster, teacher and other employees of the intermediate colleges in the State of U.P. are governed by the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the 'Act'). Section 16 - G of the Act provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations. In exercise of powers under Section 15 of the Act the Board has framed Regulations. The said Regulations in Chapter III contains Regulation 21 which provides for 60 years as the age of superannuation of its teaching and non-teaching staff and further that if the age of superannuation of the teaching staff falls in between the academic session then they shall continue to serve the institution till 30th June ie. the end of the session. This Regulation permitting continuation of service of the teaching staff beyond the date of superannuation is only for the benefit of the students so that the serving teacher continues to teach students till the completion of the ongoing academic session. The aforesaid Regulation 21 of the Regulations is quoted below:
"21. Superannuation age of Principal, Headmaster, Teacher and other employees would be 60 years. If abovesaid superannuation age of any Principal, Headmaster and Teacher falls on any date in between 2nd July and 30th June, except in the condition when he himself, before two months of the date of superannuation, furnishes in writing the information for not seeking extension of service, extension of service up to 30th June shall be deemed to be conferred on him so that after summer vacation, substitute can be arranged in the month of July. In addition to this, extension of service could be granted only in such special cases which may be decided by the State Government.
If date of superannuation of any clerk or fourth class employee falls in the middle of any month, his extension of service would be deemed to be given up to the last date of that month. But if the date of appointment of any employee falls on the first date of any month, he shall be retired on the last date of the preceding month."
A bare perusal of the aforesaid Regulation make it clear that the service of the teaching staff shall stand automatically extended upto 30th June next if the age of superannuation falls in between 2nd July and 30th June. So it envisages 'extension' in service as distinguished from 're-appointment' where the seniority gets disturbed.
In the case of R.C.Gupta (Dr.) Vs. State of U.P. and others (2002) 1 UPLBEC 767, it has been held that ad hoc, temporary or officiating Principal has no right to the post and the Officiating Principal after he crosses the age of superannuation can only continue as Lecturer till the end of the academic session. This case however, relates to Officiating Principal of a Degree College where the statutes governing the service conditions are entirely different. The Court therein was not called upon to examine the continuation of the Officiating Principal of a intermediate college in the light of Regulation 21 of Chapter III of the Regulations which provides for extension in service as opposed to re-appointment.
In the case of Hari Om Tatsat Brahma Shukla Vs. State of U.P. and others 2006 (10) ADJ 767 the controversy was entirely different. In the said case the Division Bench ruled that after attaining age of superannuation neither higher post can be conferred nor any claim for promotion on a higher post can be accepted. In the instant cases the appellants have been appointed as Officiating Principals prior to attaining the age of superannuation and there is no claim for higher post during the extended period of service.
Similarly, the decision rendered by the Division Bench in the case of Raja Ram Chowdhary Vs. Satya Narain Gupta 2003 (2) ESC 956 as no application as there also it was only observed that a teacher during extension of service after superannuation would not be entitle to claim ad hoc appointment of Principal.
It is also well acknowledged that Officiating Principal is also entitle to the same salary and emoluments as are admissible to the post of Principal which are obviously higher than those admissible to a Teacher of the institution. At the same time on retirement of Officiating Principal his pension and other post retiral dues are fixed according to the salary last drawn i.e. Salary of the post of the Principal. The salary as well as pension would get affected in case an Officiating Principal is made to continue and retire simply as a Teacher.
Beside above, it would also tantamount to placing senior most Teacher who had officiated as Principal for a long time under a comparatively junior Teacher who may replace him as Officiating Principal on the basis of his seniority vis-a-vis the other teachers working at the institution.
It is true that the substantive post of Officiating Principal is that of a Teacher and he has no vested right to continue as Officiating Principal but nonetheless once a teacher on the basis of his seniority is appointed as Officiating Principal some rights do accrue in his favour which ordinarily are not liable to be curtailed unless a regularly selected principal joins and not by a person who is junior to him and seeks to replace him in officiating capacity only.
In the absence of regularly selected Principal it also appears to be more equitable to allow the Officiating Principal to continue till he actually demits office at the end of the session on 30th June. The Officiating Principal by virtue of his experience has a better claim and the overall interest of the institution also demands continuity not only of a Teacher but that of the Principal/Officiating Principal till the completion of the session.
However, with utmost respect, without taking these important aspects into consideration, a Division Bench of this Court in the case of Shri Nath Sahai Vs. Devendra Nath Dwivedi and others 2008 (8) ADJ 337 held that a teacher who was granted extension of two years service in view of State level award given to him, during the extended period of his service is not entitled to claim the post of Principal of the institution which had fallen vacant in the meantime. In contrast, the appellants herein were given officiating appointment as Principal of the respective institutions much earlier to attaining the age of superannuation and their claim is for continuation in the same status which they were enjoying on the respective dates of their superannuation and not any higher or superior rights.
In view of the aforesaid facts and circumstances and the legal position, we make reference for constitution of a Larger Bench to deal with the following question of law:
"Whether a teacher of Intermediate College who has already been appointed as officiating principal of the Institution by virtue of his seniority on attaining the age of superannuation in the extended period of his service shall continue as officiating principal or simply as a teacher?"
Let the papers of these two special appeals be placed before the Hon'ble Chief Justice under Chapter V Rule 6 of the High Court Rules, 1952 for constituting a Larger Bench for answering the question of law formulated above or any other ancillary question which may be found fit and reasonable under the aforesaid facts and circumstances of the case.
Date : January 13th, 2010
BK (Pankaj Mithal, J.) (C.K.Prasad, C.J.)
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