Allowed

Kamlesh Kumar v. District Inspector of Schools, Fatehpur, and 2 Others

Allahabad HC21 Apr 2022WRIA/7900/2019

Case brief

AI extract

What is this about?

In a writ petition, the High Court quashed an order denying salary arrears. The Court held that a senior teacher appointed as officiating Principal is entitled to Principal-grade salary from the date of appointment, not just the date of formal ad-hoc promotion.

What did the court decide?

The impugned order dated 15.5.2018 was quashed, and the respondent was directed to pay arrears of salary with interest.

Kamlesh Kumar Vs District Inspector of… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 32

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Case :- WRIT - A No. - 7900 of 2019

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Petitioner :- Kamlesh Kumar Respondent :- District Inspector Of Schools, Fatehpur, And 2 Others Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh Counsel for Respondent :- C.S.C.

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Hon'ble Siddharth,J.

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Heard Sri Adarsh Singh, learned counsel for the petitioner and learned Standing Counsel appearing on behalf of the respondents.

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This writ petition has been filed praying for quashing of the order dated 15.5.2018 passed by respondent no.1, District Inspector of Schools, Fatehpur. Further prayer has been made for direction to the aforesaid respondent to pay the difference of arrears of salary admissible for the post of Principal to the petitioner w.e.f. 01.7.2013 to 31.7.2016, within some stipulated period of time.

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The brief facts of the petition are that petitioner was appointed on the post of Lecturer, Civics, in Sri Ganesh Shanker Vidhyarthi Inter College, Hathgaon, District Fatehpur, which was duly recognized under the U.P. Intermediate Education Act, 1921 and also governed under U.P. Act No. 24 of 1971 and U.P. Act No. 5 of 1982 and the rules framed thereunder.

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The selection of the petitioner was made by U.P. Secondary Education Selection Board, Allahabad. The permanent Principal of institution retired on 30.6.2007 and thereafter the substantive vacancy was requisitioned by Selection Board for regular selection, but no selected candidate joined the institution. The ad-hoc

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Principal of the institution, Sri Durga Prasad Gupta, was going to retire on 30.6.2013 and the petitioner being senior most Lecturer was appointed as officiating Principal of the institution by the resolution of respondent no.3, Committee of Management, dated 27.6.2013 and the District Inspector of Schools, Fatehpur, approved the appointment of the petitioner by his order dated 4.10.2013.

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However, the petitioner was not paid salary of the post of Principal by D.I.O.S., Fatehpur, and hence he filed Writ-A No. 25387 of 2016, which was disposed of by this Court by the order dated 31.5.2016 directing D.I.O.S. Fatehpur, to consider the claim of the petitioner. The D.I.O.S., Fatehpur, under misconception of fact and law, approved the ad-hoc promotion of the petitioner on the post of Principal under Section 18 of the U.P. Act No. 5 of 1982 by the order dated 23.7.2016. The petitioner is getting the salary of the post of Principal on 23.7.2016, but his salary since 01.7.2013 to 31.07.2016 was not paid. Therefore, the petitioner again approached this Court by way of Writ-A No. 25506 of 2017, which was again disposed of by the order dated 4.7.2017 directing the D.I.O.S., Fatehpur, to pass appropriate order regarding the grievance of the petitioner, which was turned down by the D.I.O.S., Fatehpur, by the order dated 17.11.2017.

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The petitioner again approached this Court by way of Writ-A No. 3250 of 2018 and this Court after setting aside the order dated 17.11.2017 of D.I.O.S., Fatehpur, disposed of the writ petition and remanded the matter to the D.I.O.S., Fatehpur, again holding that the claim of the petitioner is fully sustainable. However, D.I.O.S., Fatehpur, has again rejected the claim of the petitioner by the impugned order dated 15.5.2018.

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In the impugned order, D.I.O.S., Fatehpur, has held that after the retirement of Sri Durga Prasad Gupta on 30.6.2013, petitioner, being senior most Lecturer, was given charge of the post as officiating Principal on 01.7.2013. He was having qualification of M.A., IInd Class, but he had no qualification of training and had only four years of teaching experience. The panel of three candidates sent to the institution could not take effect since none of the candidates joined the institution and therefore, the post of Principal was requisitioned by the Board under Section 18 of the Act and the petitioner was given adhoc promotion by the order dated 23.7.2016. Therefore the petitioner is entitled to payment of salary from the date he was promoted as Principal i.e., 23.7.2016. He is not entitled to claim any arrears prior to that date.

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A counter affidavit has been filed by learned Standing Counsel on the behalf of the District Inspector of Schools, Fatehpur and the Secretary, Secondary Education U.P., Lucknow, wherein it has been only stated that after the three selected candidates from the Commission did not joined the post of Principal, vacancy was requisitioned and the petitioner was promoted on the post of officiating Principal with effect from 23.7.2016.

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Rejoinder affidavit has been filed by learned counsel for the petitioner, wherein it has been stated that the petitioner was appointed as officiating Principal by the order date 01.7.2013 and his signatures were attested by the District Inspector of Schools, Fatehpur by the order dated 01.7.2013. Therefore, at this state, it is open for the D.I.O.S. Fatehpur, to say that petitioner was appointed as adhoc Principal on 23.7.2016.

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Learned counsel for the petitioner has relied upon the judgement of this Court in the case of Dr. Mohammad Haseeb

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Khan Vs. State of U.P. and other, Civil Misc. Writ Petition No. 46667 of 2012 , wherein this Court has held as follows:-

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“District Inspector of Schools in the present case has totally misdirected himself on the front when he has proceeded to refuse salary to the petitioner as under the provision of U.P. Act No. II of 1921 and the Regulations framed thereunder Chapter II Regulation 2(3) an incumbent is entitled for salary and legal position on the subject has been clarified 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 again this Court 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 in the case of Narbdeshwar Misra Vs. District Inspector of Schools, Deroria & others reported in 1982, UPLBEC, 171 where arrangement has been made for more than 30 days on the post of Principal in that event the incumbent is entitled for salary on the post of Principal. This Court, in the case of Solommon Morar Jha Vs. District Inspector of Schools , 1985 UPLBEC 113, has reiterated the principle, that where senior most Lecturer has been performing the duties and functions of Principal, he is entitled to salary in the Principal's grade and the provision of Chapter II Regulation 2(i) and its proviso, do not prohibit payment of salary, even if the institution is a minority institution. Same principals are liable to be extended in the present case. Legal position as such stands settled that even an Officiating/Adhoc Principal is entitled for salary in Principal's grade. In view of this denial of salary by the District Inspector of Schools in Principal's grade cannot be subscribed.”

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He has also relied upon the judgement of this Court in the case of Som Datt Shukla Vs. District Inspector of School, Law (ALL) 2002 9 24 and the judgement in the case of Ram Rati Vs. State of U.P. and others, 1987 (1) UPLBEC 1009 in this regard wherein this Court has held that where the vacancy on the post of Principal exceeds for more than 30 days that the senior most teacher is entitled to be promoted and paid the salary of the post of Principal.

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In view of the above consideration, it is clear that the claim of the petitioner is fully sustainable and despite repeated mandamus to the respondent no.1, he has passed illegal orders raising

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different objections at different stages of proceedings to anyhow reject the claim of the petitioner. The authorities cited above clearly lay down that the senior most teacher is entitled to admissible salary from the date of appointment as adhoc Principal.

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Therefore, the order dated 15.5.2018 passed by the D.I.O.S., Fatehpur, is hereby quashed.

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The respondent no.1 is directed to make payment of the difference of arrears of salary of the post of Principal to the petitioner from 01.7.2013 to 13.7.2016 within six weeks from today alongiwth 6% interest from the date it became due. In case the aforesaid payment is not made within a period of six weeks, as directed above, the petitioner shall be entitled to 12% interest on the arrears of his salary.

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The State Government shall be free to recover the excess interest of 6% from the public servants found responsible for delay in compliance of this order.

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This writ petition is allowed.

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Order Date :- 21.4.2022 Ruchi Agrahari

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Digitally signed by RUCHI AGRAHARI Date: 2022.04.28 17:30:05 IST Reason: Location: High Court of Judicature at Allahabad

Kamlesh Kumar v. District Inspector of Schools, Fatehpur, and 2 Others

Case brief

What is this about?

What did the court decide?

Kamlesh Kumar v. District Inspector of Schools, Fatehpur, and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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