1. Heard Sri Ashok Kumar Dwivedi for the petitioner.
2. The grievance of the petitioner is that he was allowed to discharge duties of Principal after attesting his signature by the District Inspector of schools on officiating basis on 3.7.2003 but has not been paid salary payable on the post of Principal and instead he has continuously been paid salary of the post he holds on substantive basis which is illegal, arbitrary and violative of principle of 'equal pay for equal work'. He placed reliance on the Apex Court decision in Selva Raj Vs. Lt. Governor of Island, Port Blair AIR 1999 SC 838 and a single Judge decision of this Court in Writ Petition No. 64399 of 2009 (Bhagwat Prasad Pandey Vs. state of U.P. & others) decided on 27.11.2009.
3. However, I find no force in submission. From the record, it is evident that the post of Principal in Sanskrit Madhyamik Vidyalaya, Sonaha, District Basti (hereinafter referred to as "College") fell vacant on 15.3.2002 as a result whereof the petitioner was allowed to look after the duties of the Principal as officiating Principal and his signature was attested by the Deputy Inspector (Sanskrit Pathshala), Gorakhpur Mandal, Gorakhpur by letter dated 3.7.2002. No letter of appointment of the petitioner appointing him even as officiating Principal has been placed on record. Learned counsel for the petitioner, even otherwise, could not show any provision under which the Management could have appointed the petitioner on officiating basis as Principal of the College. Whether a person, who is allowed to look after the duties of the higher post can be treated to be a person appointed on the post in order to claim salary is a 2 question considered by a Division Bench of this Court in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools Region-I, Meerut & others 2007 (2)ESC 987 and this Court observed as under :
"The aforesaid documents cemented the conclusion that the Petitioner-Appellant was only required to look after and discharge the duties of the officiating Principal but was never promoted/appointed on the said post. In other words, it can be said that the Petitioner-Appellant was given only current duty charge in addition to her substantive post and this arrangement did not result in promotion to the post of which, the current duty charge was handed over. In State of Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief Administrator of the Board entrusted Sri S.M. Sharma, with the current duty charge of the post of Executive Engineer, which was subsequently withdrawn as a result of his transfer to other post. He challenged the said order stating that it amounts to reversion. The Apex Court held that Sri Sharma was only having current duty charge of the Executive Engineer and was never promoted or appointed to the aforesaid post and therefore, on transfer to some other post, it did not result in reversion from the post of Executive Engineer.
A somewhat similar situation occurred in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, 1991 Supple (2) SCC 733 and the Apex Court observed as under:-
"The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion."
It was further held that such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it sometimes. However the person continues to hold substantive lower post and only discharges duties of the higher post essentially as a spot-gap arrangement. A further contention was raised that if such an arrangement continued for a very long period it would give some kind of right to continue on the post but negativing such contention, it was held that an in-charge arrangement is neither recognition nor is necessarily based on seniority and therefore, no rights, equities and expectations can be built upon it.
In this view of the matter, the Petitioner-Appellant has miserably failed to show that the management ever appointed her as officiating Principal of the College and, therefore, we hold that she was only allowed to discharge duties of the office of officiating Principal, but was never appointed/promoted by the management as officiating Principal of the College. The question no. 1 is answered and decided accordingly."
4. Besides above, there is another aspect of the matter. The petitioner was working in a Sanskrit College. After the enforcement of U.P. Board of Secondary Sanskrit Education Act, 2000 (hereinafter referred to as "2000 Act"), the institutions imparting Sanskrit education upto Uttar Madhyama are governed by the provisions of the said Act. Section 25 of 2000 Act provides procedure for appointment of Head of the institution, teachers and other employees and reads as under :
"25. Procedure for appointment of Head of institution, teachers and other employees.- Subject to the provisions of this Act, the Head of institution and teachers and other employees of an institution shall be 4 appointed in accordance with the regulations."
5. Neither any regulation nor any material has been shown to this Court to fortify that the petitioner was ever appointed in accordance with the procedure prescribed for appointment for the post of Principal. The question where no appointment whatsoever has been made, whether an incumbent can be directed to be paid salary of the higher post though he is substantively holding another post was also considered at length by this Court in Daljeet Singh Vs. State of U.P. & others 2007 (7) ADJ 117 and negatived therein.
6. In Selva Raj (supra), the case relied by the petitioner, the Court found that when the petitioner (Selva Raj) was allowed to discharge duties of Secretary (Scouts), his salary was also drawn against the post of Secretary (Scouts) under GPR 77, yet he was not paid the salary. In these factual circumstances, the Apex Court found when he was allowed to work on a higher post, though in temporary and officiating capacity and his salary was drawn during that time against the post of Secretary (Scouts), on the principle of quantum merit, the respondents-authorities should have paid him the emoluments of the post of Secretary (Scouts). In para 4 the Apex Court further clarified that the payment made under the order of the Apex Court shall not be treated as if any promotion was given to the appellant Selva Raj on the post of Secretary (Scouts). Besides, the order by which he was posted is also quoted in the judgment of the Apex Court and it shows that by the order passed by the competent authority, Selva Raj was specifically attached to look after the duties of Secretary (Scouts) with a further condition that his salary shall be drawn against the post of Secretary (Scouts) under GPR 77.
In the case in hand there is no order of appointment of the petitioner in any manner but it appears that on the death of the 5 Principal, the petitioner was allowed to officiate and his signatures were attested for administrative purposes. He was never appointed at any point of time on the post of Principal.
7. In the case of Bhagwat Prasad Pandey (supra), this Court as such has not decided any issue but has referred to the earlier judgment of this Court in Narmedeshar Misra Vs. District Inspector of Schools, Deoria & others 1982 UPLBEC 171 which has been considered by the Division Bench (in which I was also a member) in Daljeet Singh (supra) and in view of the discussion made therein, I do not find that the same, in any manner, help the petitioner.
8. In view of the above discussions, I find no merit in the writ petition. Dismissed.
Dt. 8.1.2010 PS