1. Both these matters are connected involving common question of law and fact and, therefore, have been heard together and are being decided by this Common Judgement.
2. The facts in brief giving rise to the present dispute are as under.
3. That the Cantonment Board is managing educational institutions at the Primary and Junior High School level. The recruitment and conditions of service in the above institutions are governed by Cantonment Fund Servants Rules, 1937 (hereinafter referred to as "1937 Rules"). There are two types of educational institutions, (1) Boys Primary Schools and Girls Primary Schools and (2) Junior High School. The hierarchy of the teachers appointed in the above two institution is that direct recruitment is resorted to for appointing Assistant Teachers in Primary Schools whether that of boys or of girls. The said Assistant Teachers are liable to be considered for promotion to the post of Head Master in the Primary School, who constitute feeder cadre for appointment to the post of Assistant Teacher in a Junior High School and the Assistant Teachers of Junior High Schools are liable to be considered for appointment/promotion to the post of Principal of a Junior High School.
4. The petitioner was appointed as Assistant Teacher in Boys Primary School, Cantonment Board, Varanasi on 10.8.1985 and was confirmed with effect from 5.12.1987. She was transferred from Boys Primary Schools to Girls Primary School on 26.3.1997 as Assistant Teacher. The Executive Officer, Cantonment Board, Varanasi promoted the petitioner as Assistant Teacher in Junior High School by order dated 13.9.2000 and she was further promoted as Head Master (Principal) of Cantonment Board's Junior High School in the pay scale of 4625-7000 on 2.6.2001. It appears that the above appointment/ promotion of the petitioner on the post of Head Master, Junior High School was in the vacancy caused due to termination of one Uma Shankar Ram, the Head Master of the Junior High School, who was reinstated later on and as a result thereof, the vacancy ceased. Consequently, the 2 petitioner was reverted back to the post of Assistant Teacher, Junior High School by order dated 23.7.2002 and she was required to hand over charge of office of Head Master, Junior High School to Sri Uma Shankar Ram. Thereafter, Sri Uma Shankar Ram on attaining the age of superannuation of 60 years retired on 31.7.2002 as a result whereof the petitioner was directed to take additional charge of Head Master, Junior High School and to work as officiating Head Master until further orders by order dated 23.7.2002 passed by Cantonment Board's Executive Officers, Varanasi. Since thereafter, the petitioner has been officiating as Head Master, Junior High School but having not received salary of the said post, she made various representations to the authorities concerned. Now the impugned resolution has been passed by Cantonment Board observing that as per the rules, only a Head Master of a Primary School could have been promoted as Assistant Teacher of a Junior High School and since the petitioner at no point of time got promotion as Head Master of the Primary School, she could not have been appointed as Assistant Teacher of Junior High School superseding seniority of other persons working as Head Master of Primary School, hence, the resolution has been passed revoking petitioner's promotion to the post of Assistant teacher, Junior High School and to place her in the seniority of the Assistant Teachers of Primary School. This order as also the consequential order dated 26.5.2007 are the orders under challenge before this Court in Writ Petition No. 26121 of 2007 (hereinafter referred to as "First Petition").
5. In the connected writ petition, the petitioner is seeking writ of mandamus commanding the respondents to pay salary to the petitioner on the post of Head Master, Junior High School from the date she joined and working as such and not to disturb her position as such.
6. Sri M.M. Sahai, learned counsel for the petitioner vehemently contended that at no point of time, the petitioner has sought any appointment/promotion either by concealing the facts or by fraud. She possess the educational qualification of M.A., B.Ed. and considering her higher qualification and efficiency, the respondents themselves promoted her from the post of Assistant Teacher, Primary Schools to the post of Assistant Teacher, Junior High School and, thereafter, to the post of Head Master (Principal) in Junior High School and having worked on such promoted posts for the last almost seven or eight years, now it is highly illegal and inequitable 3 to revert her again to the post of Assistant Teacher, Primary School and that too in utter violation of principle of natural justice.
7. Sri S.D. Dubey, appearing on behalf of the respondent-Cantonment Board, however, submits that under the Rules, the hierarchy of promotion is clearly provided and only a Head Master of a Primary School can be promoted as Assistant Teacher of a Junior High School. The petitioner was given promotion to the post of Assistant teacher, Junior High School in the teeth of the said statutory provision and this fact having been noticed by the respondents later on has been rectified by means of the impugned resolution, therefore, it is not a fit case warranting interference particularly when other senior persons working in Primary Schools were not considered for such promotion and without considering them, the petitioner has been conferred benefit which caused injustice to those persons which has been rectified by the authorities by means of the impugned order.
8. Sri Dubey has has also filed a written argument also making his submission as under :
"(A) The petitioner was appointed initially as Assistant Teacher in Primary School, Cannt. Board, Varanasi through direct recruitment on 10.8.1985. In accordance with the current seniority list her place is just below Serial No. 6 in as much as Sri G.K. Sharma (having been promoted as Head Master, Junior High School), Sri Ramji Ram, Sri H.N. Pathak, Sri Radhey Shyam and Smt. Kalpana Singh who are Assistant Teachers in Junior High School (no doubt Sri G.K. Sharma is now working as Head Master, Junior High School being senior most) are senior to the petitioner; moreover Sri Ram Vilas Mishra having been initially appointed on 26.3.1984 as Assistant Teacher, Primary School, by direct recruitment is also senior to the petitioner (vide paragraph 3(k) of the main counter affidavit filed by the respondent 1 & 2).
Thus petitioner's appointment as Assistant Teacher Junior High School vide order dated 13.9.2000 (Annexure-4 to the writ petition) was illegal since she was not in feeding cadre as issued by the Central Government under Rule 5-B of the Cantonment Fund Servants Rules, 1937 (C.F.S. Rules), in as much as she should have been Headmaster, Primary School then alone she could be promoted as Assistant Teacher, Junior High School as shown in column 3 at Serial No.8 of Varanasi Cantt. classification of posts.
In the same way the order dated 22.6.2001 (Annexure-5 to the writ petition) was also illegal, promoting her as Headmaster, (Principal), Cantonment Board Junior High School in as much as she lacked eligibility of promotion for Headmaster, Junior High School as per classification of the posts of Varanasi Cantt. mentioned above.
The paragraph 3(d), (e), (f), (g), & (h) of the counter affidavit filed by the respondents 1& 2 show that disciplinary proceedings were initiated against Sri Uma Shankar Ram, Headmaster, Junior High 4 School w.e.f 2.6.2001and against Sri G.K. Sharma, Assistant Teacher, Junior High School w.e.f 31.5.2001. Sri Uma Shankar Ram filed appeal before the G.O.C-in-C which was allowed on 22.7.2002 and vide Cantt. Board Resolution No.1 dated 23.7.2002, Sri Uma Shankar Ram, Headmaster, Junior High School was reinstated. It is to noted that the petitioner was promoted as Headmaster, Junior High School in the resultant vacancy although she was not eligible at all. It is under these circumstances that she was reverted to the post of Assistant Junior High School vide order dated 23.7.2002 (Annexure-6 to the writ petition). Here also she did not possess eligibility for being continued on the post of even Assistant Teacher, Junior High School.
(B) Regarding Writ Petition No. 23899/2007:-
The Annexure-7 to the writ petition will show that order dated 31.7.2002 was issued by the then Executive Officer, Cantt. Board (C.E.O.) directing the petitioner to takeover additional charge of Headmaster, Junior High School and she was directed to work as officiating Headmaster till further order. It is very important to mention that she being not eligible for the post of Assistant Teacher, Junior High School could not be given even officiating charge of the Headmaster, Junior High School. Thus her promotion was against C.F.S. Rules.
(C) The following Ruling are being cited in support of the contentions by the respondents:-
(i) (2008) 1 SCC (L & S) 492 paragraphs 13, 14, 16, 20 & 21 - The Teacher did not satisfy eligibility-hence not appointed as Headmaster.
(ii) 1996(2) Service Law Report (SC) 8 paragraphs 5 &6 - Not eligible due to reckoning of seniority.
Very Imp. (iii) (1997) 6 SCC 509 paragraphs 5,6 & 7- Not regular promotion- pay scale during charge correctly refused.
(iv) (1996) 11 SCC 650 paragraph 4- Did not fulfil eligibility in the feeder grade.
(v) (1996) 11 SCC 242 paragraph 7- Promotion of ineligible person should be treated only as ad-hoc.
(vi) 2007 (2) E.S.C (Alld) 729 D.B. Paragraphs 8, 14 & 15- Person appointed in resultant vacancy vacated by an employee, who comes back being exonerated, such person has no right to the post-being resultant vacancy."
9. The rival submission of the parties, in my view, give rise to the following questions need to be answered by this Court.
1. Whether the promotion of the petitioner to the post of Assistant teacher, Junior School was in accordance with law?
2. Whether the continuance of the petitioner to work as Assistant Teacher, Junior High School for such a long time, even if the appointment was not in accordance with rules, would confer any right upon her to continue?
3. Whether the impugned order cancelling petitioner's promotion to the 5 post of Assistant teacher, Junior High School is in violation of the principles of natural justice and if so, its effect?
4. Whether the petitioner is entitled for salary on the post of Head Master, Junior High School pursuant to her joining and working as such after the retirement of Sri Uma Shankar Ram.
10. In order to answer the first question, it would be necessary to have a bird eye view of the relevant provisions. Rule 5-B of 1937 Rules provides for appointment and conditions of service and for the purpose of the present case, Sub-rule 5 and 8 of Rules 58 and Anenxure 'C' to 1937 Rules are relevant. It would be appropriate to reproduce Rule 5-B as under :
"5-B. (1) All first appointments to service under a Board shall be made through an Employment Exchange or in such other manner as the Central Government may direct.
(2) No person aged below eighteen years and more than twenty five years shall be appointed to any post under a Board:
Provided that the Officer Commanding-in-Chief, the Command, may, if he considers it necessary so to do and subject to any directions issued by the Central Government in this behalf, relax the aforesaid age limits generally or specially, with reference to specified categories or specific cantonments or with reference to individual cases to such extent as he considers appropriate.
(3) No person who has not been declared medically fit by the authorised medical attendant and who does not possesses the minimum qualifications and experience, as may be specified for each post by the Officer Commanding-in-Chief, the Command, shall be appointed to any service under a Board:
Provided that the minimum qualification specified as aforesaid shall not operate to the disadvantage of an existing servant for continuance in the post to which he has been appointed or for appointment on promotion.
"Explanation- Authorized medical attendant for the purpose of this rule means the Medical Officer appointed by the Board to attend on the servant of the Board".
(4) Appointment to all posts under a Board shall be either by direct recruitment or by promotion or as provided under Rule 5-C.
(5) The Central Government or such other authority as may be authorised by it in this behalf shall classify all posts under a Board into direct recruitment posts or promotion posts and specify the post or posts from which appointment shall be made to each such promotion post.
(6) The Officer Commanding-in-Chief, the Command, shall subject of the such directions, if any, as may be issued by the Central Government, classify all promotion posts into selection and non-selection posts.
(7) the Executive Officer shall maintain annual confidential reports of all servants except lower grade servants in such form and in such manner as may be specified by the Central Government.
(8) Appointments to promotion posts shall be made (by the appointing authority) on the basis of seniority lists maintained for this purpose by the Board, subject to rejection of those considered unfit:
Provided that promotion to selection posts shall be made on the basis of seniority-cum-merit."
11. Annexure 'C' provides for the post to be filled in by promotion and feeder cadre etc. and relevant part thereof is reproduced as under :
Cantonment Board, Varanasi Name of Posts which are Name of he posts which For promotion posts, to be filled up by direct are to be filled up by Posts or posts from recruitment promotion which appointment shall be made to such promotion post Junior Clerk, (1) Accountant, (1) Junior Clerk, Compounder, Senior Clerk, Cashier Cashier, (2) Office Supdt. (2) Accountant, Peon, Chowkidar, Senior Clerk.
12. A perusal of Annexure 'C' shows that the post of Assistant Teacher, Boys High School and Assistant Lady Teacher as well as Assistant Teacher, Primary School are to be filled in by direct recruitment. The post of Head Master, Primary School, Assistant Teacher, Junior High School and Head Master, Junior High Schools are to be filed in by promotion. The feeder cadre for the post of Head Master, Primary School is Assistant Teacher, Primary School. Similarly, for Assistant Teacher, Junior High School it is the Head Master, Primary School and for Head Master, Junior High Schools it is Assistant teacher, Junior High School. There is no provision for relaxation of any of the above rules except that of an executive order dated 4.12.1976 as amended on 3.6.1978 which provide that where in a case of promotion, no suitable employee in the feeder cadre is available, the post temporarily may be filled in from the next lower cadre before resorting to direct recruitment. The relevant extract of the said decision may be reproduced as under :
"(f) In case of a promotion post where no suitable employees in the line of promotion in a particular Board is available the post may be filled temporarily from among suitable candidates holding posts one grade below the posts included in the field of considerations. Where this is also not feasible or no suitable candidates are available, the post may be filled temporarily by following the normal procedure applicable to direct recruitment. The question whether an employee in the lien of promotion in a Cantt. Board is fit for promotion or not would be decided by the G.O.C.-in-C, after scrutinising the relevant service records of the concerned employee before authorising direct recruitment."
13. Annexure 'C' has also been issued by the Government of India, Ministry of Defence in exercise of power under Rule 5-B (5) of 1937 Rules. It is not the case of any of the parties that the channel of promotion provided in Annexure 'C' has been changed at any point of time or the competent authority has granted any relaxation to provide substantive appointment/promotion otherwise. Though, some argument has been advanced by Sri Sahai with respect to the promotion to the post of Assistant Teacher, Junior High School and Head Master, Junior High School in the light of the Government Order dated 4.12.1976 as amended on 3.6.1978 , but in my view, that may not be relevant for the reason that neither any pleading nor any material has been placed on record that at any point of time, before the 8 promotion of the petitioner on the post of Assistant teacher, Junior High School, any exercise of promotion was undertaken by the respondents considering the persons working as Head Master, Primary School for being promoted to the post of Assistant Teacher, Junior High School and after finding them unsuitable for promotion to the post of Assistant Teacher, the petitioner was considered for such promotion and promotion was granted. Sri Sahai candidly stated that neither any such material is on record nor it appears to have been done by the respondents. He, however, submits that so far as the petitioner is concerned, she was considered for promotion on the basis of her merit and high educational qualification, therefore, she cannot be made to suffer if even fault exist on the part of the respondents. From the facts stated above, once it evident that the petitioner never came to be promoted as Head Master, Primary School, it is difficult to hold that her promotion directly to the post of Assistant Teacher, Junior High School was valid and in accordance with law. Feeder post for promotion to the post of Assistant Teacher, Junior High School is Head Master, Primary school. The petitioner having never been promoted to the post of Head Master, Primary School, she never fell in the zone of consideration and field of the eligibility for being considered for promotion to the post of Assistant Teacher, Junior High School. The hierarchy provided in Annexure 'C' read with rule 5-B (5) of 1937 Rules could not have been breached by the Cantonment Board, Varanasi. I have no manner of doubt that such promotion of the petitioner was clearly illegal and contrary to the rules.
14. When the rules are clear, the same have to be given effect. Recruitment to a post has to be made strictly in terms of the rules operating in the field and not otherwise. Any view or action contrary to above is illegal. Though slight in different context, but to my mind, somewhat similar view that been expressed by the Apex Court in para 27 of its judgment in Rajasthan Public Service Commission Vs. Kaila Kumar Paliwal AIR 2007 SC 1746, which reads as under :
"27. In the instant case, not only the posts of Head Master is governed by a separate set of rules, as has been noticed hereinbefore, the posts of Teacher Grade-III provides for a promotional avenue to the posts of Teacher Grade-II which in turn provides for promotion to the other grades of teacher. It is, thus, in our opinion inconceivable that 9 experience gained by a person holding the post of Teacher Grade-III governed by the subordinate services rules would be entitled to be considered for promotion to the post of Head Master although experience of teaching in particular classes is relevant therefor."
15. Counsel for petitioner very strongly relied on para-f of the Government of India's order whereby a clarification has been given that in case of promotion, where no suitable employee for promotion is available, the post may be filled in among suitable candidates holding post one grade below the post included in the field of considerations. He submits that when the petitioner was promoted as Assistant Teacher, Junior High School from the post of Assistant Teacher, Primary School by order dated 13.9.2000, it must be presumed that no eligible and suitable candidate on the post of Head Master, Primary School was available and, therefore, in exercise of power under Para-f the authorities travelled below the feeder cadre and promoted the petitioner directly to the post of Assistant Teacher, Junior High School.
16. There are two reasons for not accepting the above submission. Firstly, the condition of going below one grade to the feeder cadre is preceded by a condition that an exercise must have undergone to consider the persons working in the feeder cadre and when it is found that no suitable employee is available, only then it would be permissible to go below the feeder cadre. In the case in hand, neither there is any pleading nor any material available to show that any such exercise was undertaken. On the contrary, it appears that after transfer of the petitioner from Boys Primary Schools to Girls Primary school on 26.3.1997, the above order dated 13.9.2000 was passed promoting the petitioner directly as Assistant Teacher in Junior High School from post of Assistant Teacher, Primary School. Secondly, whenever a relaxation is provided or an exception is given, it is well settled that the same has to be observed strictly in accordance with the procedure prescribed therein and not otherwise. Whenever a power of relaxation is provided, not only it has to be exercised in the manner it is so provided in the statute, but it must also show the application of mind on the part of the authority while exercising the said power.
17. In Annamalai University Vs. Secretary to Government JT 2009 (4) SC 43, the Court observed :
"The power of relaxation is a statutory power. It can be exercised 10 in a case of this nature. Grant of relaxation cannot be presumed by necessary implication only because UGC did not perform its duties. Regulation 2 of the 1985 Regulations being imperative in character, non compliance thereof would entail its consequences. The power of relaxation conferred on UGC being in regard the date of implementation or for admission to the first or second degree courses or to give exemption for a specified period in regard to other clauses in the regulation on the merit of each case do not lead to a conclusion that such relaxation can be granted automatically. The fact that exemption is required to be considered on the merit of each case is itself a pointer to show that grant of relaxation by necessary implication cannot be inferred. If mandatory provisions of the statute have not been complied with, the law will take its own course. The consequences will ensue. Relaxation, in our opinion, furthermore cannot be granted in regard to the basic things necessary for conferment of a degree. When a mandatory provision of a statute has not been complied with by an Administrative Authority, it would be void. Such a void order cannot be validated by inaction."
18. In Kendriya Vidyalaya Sangathan & others Vs. Sajal Kumar Roy & others 2006 (8) SCC 671, the Court held :
"The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age limit."
19. In Kaila Kumar Paliwal (supra), even this aspect of the matter has been considered by the Apex Court and it has observed in para 22 as under:
"22. Even where there exists a provision for relaxation, for example relaxation in age, the same must be strictly complied with."
20. To the same effect is the law laid down by the Apex Court in State of H.P. & another Vs. Surindra Kumar (1996) (11) SCC 650.
21. Besides, neither this Court has been shown that the statutory Rules of 1937 providing for appointment and conditions of services anywhere empower an executive authority to relax the provisions pertaining to recruitment. The only power contained in Rule 5-B (2) (proviso) is with respect to relaxation in age and nothing beyond that. If that being so, it is also doubtful whether the executive order dated 4.12.1976 as amended on 36.1978 can validly be resorted to for making an inclusion in the scheme of the channel 11 of promotion provided in Annexure-C to 1937 Rules. It is well settled that a statutory rule cannot be modified or altered by reason of an executive instruction far less by way of a circular letter. (See : State of Uttaranchal Vs. Alok Sharma & others JT 2009 (6) SC 463; Punjab State Warehousing Corporation, Chandigarh Vs. Manmohan Singh & another 2007 (9) SCC 337). I have no hesitation in holding that appointment of the petitioner on the post of Assistant Teacher, Junior High School was not correct and was directly in the teeth of statutory provisions applicable in the case in hand.
22. Now coming to the second question, I am of the view that the appointment made on a post which is not in accordance with law would not confer any right upon the incumbent either to hold the post or to continue in service on such post in any manner. Mere length of service or lack of any fault on the part of the employee concerned is not relevant inasmuch it is the observance of statutory provisions and not the personal or individual act on the part of the parties concerned which would decide the rights of the persons to hold the post. If a person does not possess the requisite qualification or is otherwise appointed on a particular post in violation of the statute, he/she cannot claim to have a right to continue in service simply because it has worked for a long time for the reason that estoppel does not apply against statute and any appointment against the statute is void ab initio. Even, on the ground of sympathy, no such relief can be granted since a Court of law is primarily concerned with rule of law consistent with constitutional provision and mere sympathy, which is directly against the statute and constitutional provisions would be a case of misapplication of the understanding of principles of equity and justice. It would be difficult to hold that an action which would be contrary to statute has the effect of violating others' fundamental right of equal opportunity of employment, can be equitable and sympathetic though it is otherwise unconstitutional. A sympathy or equity which will result in upholding illegal and unconstitutional orders or acts can not be considered to be within the four corners of principles of administration of justice in equitable exercise of power under Article 226 of the Constitution. It would be a travesty of justice if we allow the concept of sympathy or equity to influence the mind of the Court even when the action is ex facie illegal and unconstitutional, violative of Article 16 (1) of the Constitution. Recently, the 12 Apex Court has declined to grant any relief to a person merely because it has worked for long time though did not possess requisite qualification at the time of appointment in accordance with rules and the appointment is not in accordance with the procedure prescribed. In Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309, the court said :
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. {See Food Corporation of India & Ors. v. Ashis Kumar Ganguly & Ors. [2009 (8) SCALE 218]}. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. {[See State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors. [(2008) 1 SCC 456]}"
23. In State of West Bengal & others Vs. Banibrata Ghosh & others (2009) 3 SCC 250, such a request was declined to be accepted by the Apex Court observing that it would be a misplaced sympathy.
24. In D.M. Premkumari Vs. The Divisional Commissioner, Mysore Division and others 2009 (2) SCALE 731, the Court observed :
"The law is merciless", is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassion should not exist in legal cases, especially not in judiciary. This, in our view, is a misunderstanding. Judiciary has a very strong sense of justice and it works to maintain social justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy."
25. Giving reasons for not extending the indulgence in favour of the persons, who have worked for sometimes though not validly appointed, in State of Bihar Vs. Upendra Narayan Singh & others JT 2009 (4) SC 577, 13 the Court observed :
"...the Courts gradually realized that unwarranted sympathy shown to the progenies of spoil system has eaten into the vitals of service structure of the State and public bodies and this is the reason why relief of reinstatement and/or regularization of service has been denied to illegal appointees/backdoor entrants in large number of cases..."
26. In Om Prakash & others Vs. Radhacharan & others 2009 (6) SC 329, the Court observed :
"It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous."
27. In Subha B. Nair & others Vs. State of Kerala & others 2008 (7) SCC 210, the Court said :
"This Court furthermore cannot issue a direction only on sentiment/sympathy."
28. In Jagdish Singh Vs. Punjab Engineering College & others JT 2009 (8) SC 501, the Court referred to the observations made earlier in Kerala Solvent Extractions Ltd. Vs. A. Unnikrishnan and another 1994 (1) SCALE 63 with approval as under :
"The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability."
29. Therefore, the second issue is also decided accordingly against the petitioner.
30. Now coming to the third question, it is no doubt true that before passing the impugned resolution and giving effect thereto, no opportunity has been afforded to the petitioner by issuing a show cause notice, but the petitioner 14 has been given extensive hearing before this Court to show whether her appointment on the post of Assistant Teacher, Junior High School was valid and the arguments at length have been heard. In view of the discussion made above, the only conclusion possible in the case in hand is that the appointment of the petitioner on the post of Assistant Teacher, Junior High School was in the teeth of the statutory rules and can not be sustained. It is well known exception to the principles of natural justice, where no other view is possible than what has been taken by the authorities, this Court would not interfere only on the ground of denial of opportunity and violation of principles of natural justice. Whatever the petitioner could have stated in reply to the show cause notice, had the same been given to the petitioner, has been argued before this Court at length and, therefore, I do not find it a fit case to allow the parties to have another inning only on the ground that show cause notice was not issued particularly when the petitioner having been given a complete hearing before this Court on every aspect of the matter, does not show to have been prejudiced in any manner otherwise. When the facts are admitted, statutory provisions are clear, merely because a show cause notice was not issued, in my view, would not be proper for this Court to interference on this ground.
31. Now coming to the last aspect of the matter as to whether the petitioner is entitled for salary to the post of Head Master, Junior High School in view of the fact that he was handed over charge and required to officiate as Principal since 1.8.2002 after the retirement of the then Head Master Sri Uma Shankar Ram, of Junior High School on 31.7.2002, from a perusal of the order handing over additional charge to the petitioner, it is evident that the petitioner was not appointed on the post of Head Master, but in addition to her substantive post, she was given additional charge of the office of Head Master. No provisions has been shown to the Court providing for any extra remuneration if a person is handed over additional charge of a post or to officiate on a post of higher responsibility. The said order cannot be construed as if appointing the petitioner on the post of Head Master even on officiating or ad hoc basis. The difference between "appointment on higher post" and "discharge of duties on the higher post on officiating basis without making appointment on the said post" has been considered by a Division Bench of this Court in case of Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region- I, Meerut & others 2007 (2) ESC 987, wherein this Court has held as under :
"Taking charge of a higher office and discharge its function; and to discharge function of a higher office after promotion pursuant to an order of promotion, whether on regular or ad-hoc or officiating basis, are two different things. In the former, the incumbent continue to possess the status and position of the office in which he/she is appointed substantively but look after the duties of the higher office of which charge has been handed over in addition to her substantive duties, but it does not result in a vacancy of any kind to the post/office, the incumbent is substantively holding, but, in the later case, the incumbent vacates his substantive office and discharge function of higher office by occupying the higher post. If the promotion is officiating or ad hoc such occupancy may be temporary, but the fact remain that it result in a vacancy in the lower post, may be short term and temporary. ........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 16 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.
32. In view of above exposition of law and considering the fact that the petitioner was never appointed on the post of Head Master, Junior High School and was simply discharging duties on the said post on officiating basis in absence of any appointment to the post, in my view, she cannot claim salary of the higher post.
33. In view of the above discussion, I find no merit in both these writ petitions. Dismissed.
34. No order as to costs.
Dt. 7.1.2010 PS