# Dr. Dwarika Nath Rai v. State of U.P. and others

- **Citation:** (2013) 1 ILRA 424
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-06-30
- **Bench:** Vineet Saran, Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-dwarika-nath-rai-v-state-of-u-p-and-others-42522
- **Pages:** 5

## Headnote

C.S.C., Sri Gautam Baghat
Sri Harshita Raghuvanshi
Sri K.K. Roy, Sri R.K. Rai
Sri Vivek Verma

V.B.Singh
Purvanchal
University-
First
statute-15.24-benefit of academic sessionpetitioner being substantive appointee on
post of Principal-retired on 04.07.02whether entitled for academic session
benefit?- held-'yes'-word teacher-includes
principal also-benefit of academic sessionmandatory-not depend upon discretion of
authorities-entitled to continue as reappointed principal till end of 30th June

## Text

424 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

30. No plausible reasons have been
given for not rectifying the alleged
mistake within reasonable period. The
reasonable period vary on facts of each
case, there is no straitjacket formula in
this regard. Having regard to facts of the
present case, four years time cannot be
said to be reasonable time.

31. After careful consideration of
facts, I am of the view that for the reasons
stated above, the impugned order dated
22.09.1998 and consequential orders
dated 24.09.1998 and 08.10.1998 needs to
be set aside. Accordingly, they are set
aside.

32.

In
peculiar
facts
and
circumstances of the case, it is directed
that no further deduction/recovery shall
be made against the petitioner and matter
shall be treated to be closed.

33. No order as to costs.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2013

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE MANOJ MISRA, J.

Civil Misc. Writ Petition No. 40031 Of 2012

Dr. Dwarika Nath Rai
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Neeraj Pandey

Counsel for the Respondents:
C.S.C., Sri Gautam Baghat
Sri Harshita Raghuvanshi
Sri K.K. Roy, Sri R.K. Rai
Sri Vivek Verma

V.B.Singh
Purvanchal
University-
First
statute-15.24-benefit of academic sessionpetitioner being substantive appointee on
post of Principal-retired on 04.07.02whether entitled for academic session
benefit?- held-'yes'-word teacher-includes
principal also-benefit of academic sessionmandatory-not depend upon discretion of
authorities-entitled to continue as reappointed principal till end of 30th June
2003.

Held: Para-10

As there is no dispute with regard to the
fact that the petitioner was regularly
appointed Principal on the date of his
superannuation
and
that
he
superannuated on 04.07.2012, he would
be treated as on re-employment, as per
the proviso to statute 15.24, up to 30 June
2013. Since the definition of teacher
includes a Principal, in the light of the
decisions of this Court in the cases of Udai
Narayan
Pandey
(supra)
and
Meerut
College Parivar Kalyan Samiti, Meerut
(supra), the petitioner would be deemed to
have been re-employed as a Principal of
the college and would continue, in such
capacity, till 30.06.2013.

Case Law discussed:
(1999)3UPLBEC 1887; (2001) 1 UPLBEC 201;
Civil Misc. Writ Petition No. 41457 of 2010;
(2001) 9 SCC 377;

(Delivered by Hon'ble Vineet Saran, J)

1. We have heard learned counsel
for the petitioner, Sri K.K. Roy appearing
for the newly impleaded respondent No.7
and the learned Standing Counsel for the
State-respondents.

2. The short question involved in
this petition is whether the petitioner, who
was regularly appointed Principal of
1 All Dr. Dwarika Nath Rai Vs. State of U.P. and others
425
Khardiha
Mahavidyala,
Ghazipur
(hereinafter referred to as the College), a
college affiliated to Veer Bahadur Singh
Purvanchal
University,
Jaunpur
(hereinafter referred to as the University)
was entitled to session's benefit, on
account of his superannuation in midsession i.e. 04.07.202, in accordance with
statute 15.24 of the first statutes of the
University.

3. The undisputed facts of the case
are that the petitioner was appointed
Principal of the aforesaid College on
recommendation of the U.P. Higher
Education
Service
Commission.
He
attained the age of superannuation on
04.07.2012 i. e. on completion of 62 years
in age. According to the proviso to statute
15.24 of the first statutes of the
University, if the date of superannuation
of a teacher does not fall on June 30, the
teacher shall continue in service till the
end of the academic session i.e. June 30
following and he will be treated as on reemployment from the date immediately
following the date of his superannuation
till June 30 following. As the petitioner
attained the age of superannuation on
04.07.2012, he applied for the session's
benefit in accordance with the first
statutes. The authorized controller, who
was appointed for managing the affairs of
the College, vide letter dated 28.07.2012
informed the petitioner that his matter was
referred to the Government and the
Government vide order dated 26.07.2012
decided not to provide session's benefit to
the petitioner.

4. A perusal of the Govt. Order dated
26.7.2012 reveals that the session's benefit
was denied to the petitioner on the ground
that prior to his retirement, on account of an
inquiry pending against the petitioner, vide
order dated 5.6.2012, the Authorized
Controller had withdrawn all the powers
attached to the office of Principal from the
petitioner and assigned it to the senior most
teacher of the College whereas the matter
with regards to suspension of the petitioner
was also pending at the level of the Vice
Chancellor. Besides that there were two
criminal
cases
pending
against
the
petitioner. Further, it was observed that
under Government Order No. 1587/70-22001-16(129)/2001 dated 02.06.2001 read
with Government Order No. 2493/70-22001-16(129)/2001
dated
05.07.2001
session's benefit was to be provided to an
officiating Principal in the capacity of a
teacher only.

5. Challenging the Government
Order dated 26.07.2012 as also the
communication letter dated 28.07.2012,
the learned counsel for the petitioner
submitted that refusal of session's benefit
to the petitioner was not legally justified
inasmuch as the said Government Orders
dated 02.06.2001 and 05.07.2001 related
to the case of an Officiating Principal and,
as such, were not applicable to the case of
the petitioner who being a regularly
appointed Principal was entitled to the
session's benefit, as of right, by virtue of
Statute 15.24 of the first statutes of the
University. It was also submitted that the
refusal to provide session's benefit to the
petitioner on the ground that two criminal
cases were pending and that the matter of
his suspension was pending consideration
with the Vice-Chancellor was not legally
justified inasmuch as under the Statute
15.24 of the first statutes of the University
as also under the proviso to sub-rule (3) of
Rule 3 of the U.P. State Universities First
Statutes (Age of Superannuation, Scales
of Pay and Qualification of Teachers),
1975, the petitioner, who was a regularly
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
appointed Principal and, as such, a teacher
within the meaning of Section 2(19) of
the U.P. State Universities Act, 1973, was
entitled to the session's benefit, as of
right, and the authorities had no discretion
to deny the session's benefit to the
petitioner on ground of any charges. It
was further submitted that, in any case,
the Vice-Chancellor of the University, by
his
order
dated
18.06.2011,
had
suspended the operation of the suspension
order. In support of his submissions, the
learned counsel for the petitioner has
placed reliance on two division bench
decisions of this Court in the case of Udai
Narayan
Pandey
v.
Director
of
Education
(Higher
Education),
Allahabad (1999) 3 UPLBEC 1887 and
Meerut College Parivar Kalyan Samiti,
Meerut v. State of U.P. and others
(2001) 1 UPLBEC 201, wherein it has
been held that as teacher includes
Principal, by virtue of the definition
clause i.e. Section 2(18) {now Section
2(19)}, a Principal of an affiliated college
would also be entitled to session's benefit
as a Principal. Paragraph No.15 of the
judgment in Udai Narayan Pandey
(supra) is being reproduced below:-

"15.
In
the
present
facts
the
Respondent
No.5
admittedly
was
appointed on substantive post of Principal
of the institution concerned and while
holding
the
said
post,
date
of
superannuation came. Admittedly, apart
from the said appointment as Principal,
the Respondent No.5 never held any post
of
teacher
in
the
said
institution.
Therefore, applying the law as aforesaid,
after the date of superannuation the
Respondent No.5 was to continue in
service on re-employment as Principal."

6. Per contra, learned counsel for the
respondents
submitted
that
as
the
petitioner had been suspended and had
also been facing criminal prosecution, the
session's benefit ought not to be provided
to the petitioner and in any case the
petitioner ought not to be permitted to
function as Principal of the College
during the extended period of service.
Reliance has been placed on a Division
Bench decision of this Court in the case of
Om Saran Tripathi v. State of U.P. and
others (Civil Misc. Writ Petition No.
41457 of 2010 decided on 19.07.2010),
wherein relying on an apex court's
decision in the case of S.K. Rathi V.
Prem Hari Sharma (2001) 9 SCC 377 it
was held that the session's benefit allowed
to a teacher, who had been officiating as
Principal, would not enable him to
officiate as Principal as it is a case of reappointment and not extension of the
period of officiating charge of the
Principal.

7.

Having
considered
the
submissions of the learned counsel for the
parties as also on perusal of the record,
we find that there is no dispute with
regard to the fact that the petitioner was
regularly appointed Principal of the
College and that he retired mid-session on
04.07.2012. According to the definition of
"teacher"
under
the
U.P.
State
Universities Act, 1973, a teacher includes
a Principal also. Statute 15.24 of the
University provides as under:-

"15-24 bl ifjfu;ekoyh ds izkjEHk ds fnukad
ds i'pkr fdlh v/;kid dh lsok esa vf/kof"kZrk dh
vk;q ds mijkUr dksbZ o`f) ugha dh tk;sxhA

ijUrq ;fn fdlh v/;kid dh vf/kof"kZrk dk
fnukad 30 twu dks u gks rks og v/;kid f'k{kk l=
ds vUr rd vFkkZr vuqorhZ 30 twu rd lsok esa cuk
jgsxk vkSj og viuh vf/kof"kZrk ds fnukad ds Bhd
1 All Dr. Dwarika Nath Rai Vs. State of U.P. and others
427
vuqorhZ fnukad ls vkxkeh 30 twu rd fQj ls
fu;ksftr le>k tk;sxkA

ijUrq ;g vkSj fd 'kkjhfjd vkSj ekufld :i
ls LoLFk ,sls v/;kidksa dks ftUgs 1942 ds Lora=rk
laxzke esa Hkkx ysus ds dkj.k dkjkokl dk n.M fn;k
x;k gks vkSj Lora=rk laxzke lsukuh isa'ku fey jgh
gks] mudh vf/kof"kZrk ds fnukad ls vkxkeh 30 twu
ds i'pkr nks o"kZ dh vxzrj vof/k ds fy;s
iqufuZ;qDr fd;k tk;sxkA""""

8. The proviso to Statute 15.24 is
pari materia to the proviso to sub-rule (3)
of Rule 3 of U.P. State Universities First
Statutes (Age of Superannuation, Scales
of Pay and Qualification of Teachers),
1975, which reads as follows:-

"Provided that if the date of
superannuation of a teacher does not fall
on June 30, the teacher shall continue in
service till the end of the academic
session i.e. June 30 following and he will
be treated as on re-employment from the
date immediately following the date of his
superannuation till June 30 following."

9. A careful reading of the proviso
to the statute 15.24 reveals that there is
mandate that if the date of superannuation
of a teacher does not fall on June 30, the
teacher shall be treated as on reemployment from the date immediately
following the date of his superannuation
till June 30 following.

10. As there is no dispute with
regard to the fact that the petitioner was
regularly appointed Principal on the date
of his superannuation and that he
superannuated on 04.07.2012, he would
be treated as on re-employment, as per the
proviso to statute 15.24, up to 30 June
2013. Since the definition of teacher
includes a Principal, in the light of the
decisions of this Court in the cases of
Udai Narayan Pandey (supra) and
Meerut College Parivar Kalyan Samiti,
Meerut (supra), the petitioner would be
deemed to have been re-employed as a
Principal of the college and would
continue, in such capacity, till 30.06.2013.

11. The decisions in the case of Om
Saran Tripathi (supra) and S.K. Rathi
(supra) are of no help to the respondents
inasmuch as they related to an officiating
principal and not a regularly appointed
principal, as is the petitioner.

12. We further find that in refusing
session's benefit to the petitioner,wrongly
reliance was placed on Government Order
dated
02.06.2001
inasmuch
as
by
Government Order dated 05.07.2001,
issued by way of corrigendum, it was
made clear that the Government Order
dated 02.06.2001 would be applicable to
an Officiating Principal. As the petitioner,
admittedly, was a regularly appointed
principal,
reliance
placed
on
the
Government Order dated 02.06.2001 read
with
Government
Order
dated
05.07.2001,
was
misconceived.
Furthermore, we do not find any material
on record to infer that providing a
session's benefit to a teacher is at the
discretion of the authorities. As the
proviso to statute 15.24 uses the words
"will be treated as on re-employment from
the date immediately following the date of
his superannuation", discretion with the
authorities to grant or not to grant such
benefit is excluded, inasmuch as the
benefit would be available by operation of
law. Even otherwise, we find that the
Vice-Chancellor of the University, by his
order dated 18.06.2011, had suspended
the operation of the suspension order.
Thus, we are of the considered view that
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
refusal to grant session's benefit to the
petitioner cannot be legally sustained.
Accordingly,
the
order
26.07.2012
(Annexure No.10) and the consequential
communication /order dated 28.07.2012
(Annexure No.9) are hereby quashed. The
petitioner will be entitled to the session's
benefit and would be entitled to continue
as Principal of the said college till the date
of his retirement i.e. 30.06.2013, with all
the consequential benefits. However, this
will not preclude the respondents to take
action
against
the
petitioner,
in
accordance with law.

13. The writ petition is allowed as
above.
---------
 ORIGINAL JURISDICTION
CIVIL. SIDE
DATED: ALLAHABAD 14.02.2013

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J
THE HON'BLE ZAKI ULLAH KHAN, J.

Civil Misc. Writ Petition No. 43383 OF 2001

Dr. Ashok Kumar Misra and others

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri A.N. Pandey

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art-226-
Regularisation
of
Guest
Lecturerpetitioner working as guest lecturer in
Homeopathic
Medical
College-stand
merged
with
Lal
Bahadur
Shashtri
Medical
College
Allahabad-calim
of
petitioner
either
continuation
or
regularisation-can not be accepted in
view of Division Bench judgment of Dr.
V.P. Singh and Dr. K.K. Singh. cases.

Held: Para-18

18. We are in respectful agreement with
the above decisions. The petitioners in
the present Writ Petition were merely
appointed as Guest Lecturers in the Year
1998
in
the
erstwhile
Tilakdhari
Homeopathic Medical College, Jaunpur.
After merger of the said college with Shri
Lal Bahadur Shastri Medical College,
Allahabad, the college did not find
necessity of having Guest Lecturers for
teaching
the
subjects
which
the
petitioners
had
been
teaching,
and
therefore,
the
petitioners
were
not
continued
as
Guest
Lecturers.
The
petitioners
have
no
right
to
claim
continuation as Guest Lecturers or seek
regular employment in Shri Lal Bahadur
Shastri Medical College, Allahabad.

Case Law discussed:
Civil Misc. Writ Petition No. 21496 of 2001;
Civil Misc Writ Peition No. 273 of 2001

(Delivered by Hon'ble , Zaki Ullah Khan, J)

1. The present Writ Petition has
been filed by the petitioners under Article
226 of the Constitution of India, inter-alia,
praying for quashing the Order dated
13.9.2001 passed by the respondent no.4
(Annexure 13 to the Writ Petition).

2. It appears that the petitioners were
appointed as Guest Lecturers in various
departments in Tilak-dhari Homeopathic
Medical College, Jaunpur.

3. It further appears that by the
Government Order dated 1st May, 2000,
the scheme of appointment as Guest
Lecturers was suspended by the State
Government whereupon the petitioners
filed a Writ Petition before this Court