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2009 Supreme(All) 3529
[2010(1) ADJ 832]
ALLAHABAD HIGH COURT
BEFORE : SUDHIR AGARWAL, J.
GHANSHYAM PANDEY ....Petitioner
Versus
D.I.O.S., DEORIA AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 66865 of 2006, decided on 12th November, 2009)
Counsel :
I.R. Singh for the Petitioner; S.K. Chaubey, R.B. Pradhan, S.C. Gupta for the Respondents.
Headnote:Appointment—Officiating Principal—Claim of—No material placed by petitioner as to whether he was ever appointment as Principal of College in any capacity including that of officiating—No letter of appointment—Factum that a person is looking after duties of a post, does not mean that he is appointed on that post—Held, in absence of any order of appointment, issued in favour of petitioner as officiating Principal of College, hence, petitioner was never appointed as officiating Principal of College—Having never been appointed on post of officiating Principal, petitioner not entitled to claim salary—Earlier, by mistake, D.I.O.S. had granted approval to petitioner by misguiding himself by alleged resolution of respondent-3 but on complaint and realising that petitioner had no right at all to that post, he has rightly held that petitioner should continue to look after his substantive post—Decision of D.I.O.S. for not to pay salary to petitioner on post of Principal on which he was never appointed was not without jurisdiction—Management never passed any order with respect to appointment of petitioner on post of Principal—Moreover, it cannot be said that petitioners reply was not considered—D.I.O.S. has considered petitioner’s reply and representation of respondent-4, and thereafter, has passed same—Thus, petition liable to be dismissed. [U.P. Higher Education Services Commission Act, 1980—Sections 16, 31-A(1)—U.P. Higher Education Services Commission (Removal of Difficulties) Order, 1982—Clauses (2) (3)]. [Paras 28 to 31, 33, 35,36, 37 and 38]
Result; Petition Dismissed.
Hon’ble Sudhir Agarwal, J.—Heard Sri I.R. Singh, learned counsel for the petitioner, learned Standing Counsel for the respondents No. 1 and 2 and Sri S.K. Chaubey, Advocate who has put in appearance on behalf of respondent No. 4.
2. This writ petition is directed against the order dated 28.11.2006 passed by the District Inspector of Schools, Deoria (hereinafter referred to as the “DIOS”) whereby he has directed that the respondent No. 4 shall discharge the duties of Incharge Principal of Sri Deo Kali Nath Sanskrit Pathshala, Barpar, Deoria (hereinafter referred to as the “College”) and the petitioner shall continue to work as Assistant Teacher of the College.
3. The facts in brief giving rise to the present dispute are that the College imparts education from Prathma to Uttar Madhyama, i.e., Class VI to XII and is being managed by the respondent No. 3. Earlier it was affiliated to Sampurnanand Sanskrit Viswavidyalaya, Varanasi (hereinafter referred to as the “University”) and governed by the provisions of U.P. State Universities Act, 1973 (hereinafter referred to as the “1973 Act”) read with the First Statute of the University published on 20.12.1978 (hereinafter referred to as the “First Statute”). It is said that after the enactment of U.P. Board of Secondary Sanskrit Education Act, 2000 (hereinafter referred to as the “Act, 2000”) the College is now a recognized institution by the U.P. Board of Secondary Sanskrit Education (hereinafter referred to as the “Board”) in view of Section 13 of the Act, 2000.
4. The petitioner was appointed as Assistant Teacher in the College on 1.8.1978 while the respondent No. 4 was appointed on 1.3.1977. Both were granted approval by the Vice Chancellor of the University as per the University’s letter dated 19.2.1987. It is said that the post of Principal fell vacant in 1980 due to the then Principal, Pt. Bajrang Bali leaving the job without giving any reason. The Committee of Management of the College permitted the petitioner to hold officiating charge of the Principal on 5.10.1980 and since then he is looking after the work of the Principal of the College in officiating capacity. The DIOS vide his letter dated 9.7.2005 granted financial approval to petitioner w.e.f. 25.12.2003 for payment of salary of the post of Principal. A complaint thereafter appears to have been made by the respondent No. 4 and one Ramakant Yadav, both teachers, claiming themselves to be senior to petitioner as Assistant Teacher in the College, pursuant whereto the DIOS issued a show cause notice to the petitioner and stopped payment of salary on the post of Principal. A reply submitted by the petitioner on 2.6.2006 (Annexure-9 to the writ petition), whereafter the impugned order has been passed.
5. The sheet anchor of the petitioner’s argument for assailing the impugned order is that after 26 years such dispute could not have been raised as the petitioner has a vested right and the same cannot be challenged after such a long time.
6. On behalf of respondents No. 1 and 2 a counter-affidavit has been filed stating that the then Principal of the College left the College on 5.10.1980 whereafter the petitioner was allowed to look after and officiate as Principal. The financial approval was accorded to petitioner for payment of salary as Principal by DIOS vide order dated 9.7.2005 w.e.f. 25.12.2003 treating him to be officiating Principal of the College since 1.7.1983 since no one has objected to his functioning as Officiating Principal. However, after the financial approval was granted, the respondent No. 4 claiming himself to be the senior most teacher submitted an application stating that he is entitled for the post of Principal and pursuant thereto the matter was heard and the impugned order has been passed. It is said that from the record it has been found that the respondent No. 4 was the senior most teacher in the College and, therefore, the petitioner could not be allowed to be appointed as Principal even on ad
