# Smt. Asha Rai, Officiating Principal, Rashtriya Inter College, Tahbarpur, Azamgarh v. State of U.P. & Ors

- **Citation:** (2020) 11 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-11
- **Case number:** Writ-A No. 60198 of 2015
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-asha-rai-officiating-principal-rashtriya-inter-college-tahbarpur-azamgarh-v-45378
- **Pages:** 9

## Headnote

A. Service Law -- Societies Registration
Act, 1860; U.P. Secondary Education
Services
Selection
Board
Act,
1982:
Section 18; U.P. Intermediate Education
Act, 1921: Regulation 2(3); Payment of
salary
-Government
Order
dated
18.01.1974: Para 5(2) - A teacher while
officiating on the post carrying higher
grade is entitled to officiating salary in the
higher grade and it further prescribes for
determining the salary of the officiating
teacher in the higher grade. (Para 9 to 14)

Petitioner's claim for payment of salary on the
post of Officiating Principal was rejected by the
District
Inspector
of
Schools,
Azamgarh/respondent No. 3 on the grounds
that the provisions of S. 18 of the U.P.
Secondary Education Services Selection Board
Act, 1982 as well as the provisions contained
under Regulation 2(3) of the U.P. Intermediate
Education Act, 1921 will not apply. (Para 4)

The stand of the respondent No. 3 that the
petitioner was not appointed as an ad hoc
Principal, therefore, she is not entitled for the
salary of Principal, is unacceptable. Court
observed that the District Inspector of Schools,
Azamgarh himself has attested the signatures of
the
petitioner
as
Officiating
Principal
on
11.12.2014. (Para 7)

B. Court followed the view taken by the
Full Bench that even after the omission of
a reference to the provisions of S.18 in
S.16 following U.P. Act 1 of 1993, since
158 INDIAN LAW REPORTS ALLAHABAD SERIES
S.16 was still subject to S.33, ad hoc
appointments could be made both under
the
First
and
Second
Removal
of
Difficulties Orders that had been issued
under Section 33. (Para 15)

The Director of Education (Secondary), U.P.,
Lucknow
has
issued
an
order
dated
25.08.2015 to all the District Inspector of
Schools of the State directing them to appoint
the senior-most Assistant Teacher/Lecturer as
officiating Principal of the institutions, where
the office of the Principal is vacant, and to
grant them the salary of the Principal. Thus,
the stand taken by the District Inspector of
Schools that the petitioner was not appointed
as an ad hoc Principal in terms of S. 18 of the
U.P. Secondary Education Services Selection
Board Act, 1982 and Regulation 2(3) of the
U.P. Intermediate Education Act, 1921 is
completely
misconceived
and
misleading.
(Para 16, 17)

Writ petition allowed. ( E-4)

Precedent followed:

## Text

11 All. Smt. Asha Rai, Officiating Principal, Rashtriya Inter College, Tahbarpur, Azamgarh Vs. State of
 U.P. & Ors.
157
petitioner retains the statutory right, if
available of seeking relief in review
jurisdiction of the High Court. If the SLP is
dismissed at the first stage by speaking a
reasoned order, there is still no merger but
rule of judicial discipline and declaration
of law under Article 141 of the Constitution
will apply. The order of Supreme Court
would mean that it has declared the law
and in that light the case was considered
not fit for grant of leave. Once leave is
granted but SLP converted into appeal is
dismissed with or without reasons, merger
results and law is declared. It is no longer
permissible to move the High Court by
review and no Court, Tribunal or Authority
can express any opinion contrary to the
view taken by Supreme Court. Order
appealed against can be reversed, modified
or affirmed by the Supreme Court in
exercise of appellate jurisdiction at the
second stage only and not at the
discretionary first stage of special leave
under Article 136 of the Constitution of
India."

55. Thus dismissal of SLP does not
mean that the judgement of High Court has
attained a binding nature with the seal of
approval of the Suprme Court.

56. Therefore, the judgment of
Mahesh Narayan being distinguishable on
facts and petitioners have failed to make
out a case of parity or on its own merits,
petitions are liable to be dismissed and are
dismissed.

57. Parties bear their own costs.
----------
(2020)11ILR A157
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE
THE HON'BLE PRAKASH PADIA, J.

Writ-A No. 60198 of 2015

Smt. Asha Rai, Officiating Principal,
Rashtriya
Inter
College,
Tahbarpur,
Azamgarh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhawesh Pratap Singh, Sri Irshad Ali

Counsel for the Respondents:
C.S.C., Sri Ankur Tandon

A. Service Law -- Societies Registration
Act, 1860; U.P. Secondary Education
Services
Selection
Board
Act,
1982:
Section 18; U.P. Intermediate Education
Act, 1921: Regulation 2(3); Payment of
salary
-Government
Order
dated
18.01.1974: Para 5(2) - A teacher while
officiating on the post carrying higher
grade is entitled to officiating salary in the
higher grade and it further prescribes for
determining the salary of the officiating
teacher in the higher grade. (Para 9 to 14)

Petitioner's claim for payment of salary on the
post of Officiating Principal was rejected by the
District
Inspector
of
Schools,
Azamgarh/respondent No. 3 on the grounds
that the provisions of S. 18 of the U.P.
Secondary Education Services Selection Board
Act, 1982 as well as the provisions contained
under Regulation 2(3) of the U.P. Intermediate
Education Act, 1921 will not apply. (Para 4)

The stand of the respondent No. 3 that the
petitioner was not appointed as an ad hoc
Principal, therefore, she is not entitled for the
salary of Principal, is unacceptable. Court
observed that the District Inspector of Schools,
Azamgarh himself has attested the signatures of
the
petitioner
as
Officiating
Principal
on
11.12.2014. (Para 7)

B. Court followed the view taken by the
Full Bench that even after the omission of
a reference to the provisions of S.18 in
S.16 following U.P. Act 1 of 1993, since
158 INDIAN LAW REPORTS ALLAHABAD SERIES
S.16 was still subject to S.33, ad hoc
appointments could be made both under
the
First
and
Second
Removal
of
Difficulties Orders that had been issued
under Section 33. (Para 15)

The Director of Education (Secondary), U.P.,
Lucknow
has
issued
an
order
dated
25.08.2015 to all the District Inspector of
Schools of the State directing them to appoint
the senior-most Assistant Teacher/Lecturer as
officiating Principal of the institutions, where
the office of the Principal is vacant, and to
grant them the salary of the Principal. Thus,
the stand taken by the District Inspector of
Schools that the petitioner was not appointed
as an ad hoc Principal in terms of S. 18 of the
U.P. Secondary Education Services Selection
Board Act, 1982 and Regulation 2(3) of the
U.P. Intermediate Education Act, 1921 is
completely
misconceived
and
misleading.
(Para 16, 17)

Writ petition allowed. ( E-4)

Precedent followed:

1. Dhaneshwar Singh Chauhan Vs The District
Inspector of Schools, Budaun & ors., 1980
UPLBEC 286 (Para 10)

2. Narbdeshwar Mishra Vs The District
Inspector of Schools, Deoria & ors., 1982
UPLBEC 171 (Para 11)

3. Soloman Morar Jha Vs District Inspector of
Schools, Deoria & ors., 1985 UPLBEC 113
(Para 11)

4. Dr. Jai Prakash Narayan Singh Vs St. of
U.P. & ors., 2014 (8) ADJ 617 (Para 13)

Present petition challenges order dated
01.08.2015, passed by District Inspector
of
Schools,
Azamgarh,
by
which
petitioner's
claim
for
salary
as
Officiating Principal has been rejected.

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Bhawesh Pratap Singh,
learned counsel for the petitioner and
learned
Standing
Counsel
for
the
respondents.

2. The petitioner has preferred the
present writ petition with the following
prayers:-

"A. to issue a writ, order or
direction in the nature of certiorari calling
for record of the case and to quash the
impugned order dated 01.08.2015 passed
by District Inspector of Schools, Azamgarh.

B. to issue a writ, order or
direction in the nature of mandamus
directing the respondent District Inspector
of Schools, Azamgarh to ensure payment of
salary to the petitioner for the post of
Officiating Principal in Rashtriya Inter
College, Tahbarpur, District Azamgarh
within the period specified by this Hon'ble
Court."

3. Facts in brief as contained in the
writ petition are that in Tahbarpur in
District Azamgarh, there is a registered
society under the Societies Registration Act
1860. The aforesaid society runs and
manage an educational institution namely
Rashtriya
Inter
College,
Tahbarpur,
Azamgarh. The aforesaid Committee of
Management
passed
resolution
on
25.05.2014 to suspend Sri Arvind Kumar
Rai who is working as Principal of the
College for charges of embezzlement,
insubordination and indiscipline and passed
suspension order on 31.05.2014. The
aforesaid suspension order was required
approval
from
District
Inspector
of
Schools, Azamgarh therefore, the aforesaid
suspension order was sent for approval but
the District Inspector of Schools vide order
dated
07.06.2014
disapproved
the
suspension order of Arvind Kumar Rai on
the ground that charges are not serious.
Against the aforesaid order, the Committee
11 All. Smt. Asha Rai, Officiating Principal, Rashtriya Inter College, Tahbarpur, Azamgarh Vs. State of
 U.P. & Ors.
159
of
Management
filed
Writ
Petition
No.36233 of 2014 and this Court vide
judgement and order dated 16.072014
allowed the writ petition and set aside the
order dated 07.06.2014 passed by the
District Inspector of Schools, Azamgarh (in
short "D.I.O.S."). In compliance of order of
this Court, the District Inspector of
Schools, Azamgarh again consider the case
and disapproved the proposal of the
committee of management to suspend
Arvind Kumar Rai vide order dated
04.10.2014. Against
the
order
dated
04.10.2014, Committee of Management
again approached this court by filing writ
petition No.60045 of 2014. The aforesaid
writ petition was disposed of vide order
dated 12.11.2014 by which Arvind Kumar
Rai was directed to work as Principal.
Against the aforesaid order, a Special
Appeal was filed by the Committee of
Management before this Court. The said
Special Appeal was allowed and the order
dated 12.11.2014 was set aside. In the
circumstances,
the
Committee
of
Management did not permit Arvind Kumar
Rai to join the college and appointed Sri
Chandra Shekhar Rai being senior most
teacher
as
Officiating
Principal.
Sri
Chandra Shekhar Rai was superannuated
on 30.06.2014. Thereafter the petitioner
being senior most teacher was appointed as
officiating principal. The Management sent
the papers for attestation and the D.I.O.S.
vide order dated 11.12.2014 attested the
signature of the petitioner as officiating
principal. The petitioner discharged her
duties
as
Officiating
Principal
from
05.08.2014.
On
09.11.2020,
a
supplementary affidavit has been filed by
the petitioner stating therein that the
petitioner is continuously discharging her
duties as officiating principal and the fact
that he is superannuated on 30.06.2014 is
wrong and incorrect due to mistake. It is
stated in paragraph 27 of the writ petition
that
the
D.I.O.S.
vide
order
dated
01.08.2015 rejected the claim of the
petitioner
for
salary
as
Officiating
Principal. Hence the present writ petition.

4. The claim set up for payment of
salary by the petitioner on the post of
Officiating Principal was rejected by the
District
Inspector
of
Schools,
Azamgarh/respondent No.3 on two grounds.
Firstly, the provisions of Section 18 of the
U.P. Secondary Education Services Selection
Board Act, 1982 will not apply and secondly,
the provisions contained under Regulation
2(3) of the U.P. Intermediate Education Act,
1921 will also not apply. It is stated in
paragraph 24 of the writ petition that the
petitioner is working on the post of
Officiating Principal and her signatures for
the aforesaid post was duly attested by
respondent No.3 vide order dated 11.12.2014.

5. A counter affidavit has been filed
by the learned Standing Counsel on behalf
of the respondents including District
Inspector of Schools, Azamgarh. There is
no denial in the entire counter affidavit
regarding working of the petitioner on the
post of Officiating Principal. In paragraph
16 of the counter affidavit, the contents of
paragraph 24 of the writ petition were dealt
with. It is stated in paragraph 16 of the
counter affidavit that since the suspension
of Arvind Kumar Rai continued, as such for
urgent work of the Institution, the petitioner
was appointed as Officiating Principal but
there is no order with regard to payment of
salary of the Principal to the petitioner.

6. I have heard the learned counsel for
the parties and perused the record.

7. The stand of the respondent No.3
that the petitioner was not appointed as an
160 INDIAN LAW REPORTS ALLAHABAD SERIES
ad hoc Principal, therefore, she is not
entitled for the salary of Principal, is
unacceptable. As noted above, the District
Inspector of Schools, Azamgarh himself
has attested the signatures of the petitioner
as Officiating Principal on 11.12.2014.
From the pleadings made in the writ
petition as well as in the counter affidavit,
it is established that the signatures of the
petitioner as Officiating/Ad hoc Principal
have been attested by respondent No.3 on
11.12.2014. It is also clear from perusal of
the record that the petitioner is still
discharging her duties on the post of
Officiating Principal.

8. Regulation 2(3) of Chapter II of Part II-A
of the Regulations framed under the Act, 1921
deals with the temporary vacancy in the post of
Head of the institution, which reads as under:-

"(3) Where the temporary vacancy in
the post of head of institution is, for a period not
exceeding thirty days, the senior-most teacher in
the highest grade may be allowed to work as
acting head of institution, but he shall not be
entitled to pay in a scale higher than the scale of
pay in which he is drawing salary as such
teacher."

Section 18 of the Act, 1982 reads as
under:

"18.
Ad
hoc
Principals
or
Headmasters.--(1) Where the management has
notified a vacancy to the Board in accordance
with sub-section (1) of Section 10 and the post of
the Principal or the Headmaster actually
remained vacant for more than two months, the
Management shall fill such vacancy on purely ad
hoc basis by promoting the senior most teacher,--

(a) in the lecturer's grade in respect of
a vacancy in the post of the Principal;

(b) in the trained graduate's grade in
respect of a vacancy in the post of the Headmaster.

(2) Where the Management fails to
promote the senior most teacher under subsection (1), the Inspector shall himself issue the
order of promotion of such teacher and the
teacher concerned shall be entitled to get his
salary as the Principal or the Headmaster, as the
case may be, from the date he joins such post in
pursuance of such order of promotion.

(3) Where the teacher to whom the
order of promotion is issued under sub-section (2)
is unable to join the post of Principal or the
Headmaster, as the case may be, due to any act or
omission on the part of the Management, such
teacher may submit his joining report to the
Inspector, and shall thereupon be entitled to get his
salary as the Principal or the Headmaster, as the
case may be, from the date he submits the said
report.

(4) Every appointment of an ad hoc
Principal or Headmaster under sub-section (1)
shall cease to have effect from the date when the
candidate recommended by the Board joins the
post."

9. The State Government has also
issued a Government Order dated 18th
January,
1974
accepting
the
recommendations
of
the
U.P.
Pay
Commission prescribing the scales of pay
for the teachers. Paragraph-5(2) of the
Government Order provides that a teacher
while officiating on the post carrying
higher grade is entitled to officiating salary
in the higher grade and it further prescribes
for determining the salary of the officiating
teacher in the higher grade.

10. The aforesaid Government order
came to be considered by a Division Bench
of this Court in the case of Dhaneshwar
Singh Chauhan v. The District Inspector of
Schools,
Budaun
and
others.
1980
UPLBEC 286. The Division Bench held as
under:

"2. The petitioner is a teacher in
aided and recognised institution and the
11 All. Smt. Asha Rai, Officiating Principal, Rashtriya Inter College, Tahbarpur, Azamgarh Vs. State of
 U.P. & Ors.
161
liability for the pre-joint his salary is on the
State Government under the U.P. High
School and Intermediate College (Payment of
Salary of Teacher and other Employees) Act,
1971. The salary of a teacher in aided and
recognized institution is regulated by the
regulation
framed
under
the
U.P.
Intermediate Education Act and the order
issued by the State Government from time to
time. Regulation 46 in Chapter III lays down
that employees of an aided and recognized
institution shall be given the pay scale
sanctioned by the State Government from
time to time. The State Government has
prescribed the scales of pay for teachers. The
State Government issued an order on 18th
January,
1974
accepting
the
recommendations
of
the
U.P.
Pay
Commission prescribing scales of pay for
teachers. Paragraph 5(2) of the Government
order lays down that a teacher while
officiating on the post carrying higher grade
is entitled to officiating salary in the higher
grade and it further prescribed procedure for
determining the salary of officiating teacher
in the higher grade. A copy of the
Government order was before us by the
petitioner. Respondents do not deny the
petitioner's
averment
that
the
State
Government
issued
orders
sanctioning
officiating pay to a teacher in the higher
grade. The petitioner's claim for salary in
Principal's grade was sanctioned by the
District Inspector of Schools in pursuance of
the aforesaid Government order. Respondents
have
failed
to
show any
subsequent
Government order or rule superceding the
direction contained in Government order
dated 24-1-74. The respondents have further
failed to place any material before the court
showing that the petitioner was not entitled to
the salary in the Principal's grade while
officiating on the post of Principal. The order
of the District Inspector of Schools dated 318-77 is therefore not sustainable in law.

3. In the result we allow the
petition and quash the order of the District
Inspector of Schools and direct the
respondents to pay salary to the petitioner
in the Principal's grade for the period
during which he has been officiating as
Principal in accordance with the orders
contained in the letter of the District
Inspector of Schools dated 14-4-79. The
petitioner is entitled to his cost."

11. In Narbdeshwar Mishra v. The
District Inspector of Schools, Deoria and
others, 1982 UPLBEC 171, another
Division Bench of this Court again
reiterated the same principle and held that
the officiating Principal will be entitled to
receive salary admissible to Principal.
Another Division Bench of this Court in the
case of Soloman Morar Jha v. District
Inspector of Schools, Deoria and others,
1985 UPLBEC 113, while considering the
aforesaid issue held as under:

"3. There is no dispute that a
permanent vacancy arose in the post of
principal in the institution. There is,
further, no dispute that the petitioner, being
a senior most teacher, was appointed to
officiate
on
the
post
of
Principal.
Admittedly,
the
petitioner
has
been
functioning as the acting Principal since 17-1981 and in that capacity, he has been
discharging the functions of the Principal.
Since the petitioner has been performing
the duties and functions of the Principal, he
is entitled to salary in the Principal's
grade, for the period during which he
continues to work as the Principal. In
Dhaneshwar Singh Chauhan v. D.I.O.S.
Budaun 1980 UPLBEC 286 as well as in
Narvadeshwar Misra v. D.I.O.S. Deoria,
1982 UPLBEC 171, two Division Benches
of this Court held that a lecturer officiating
in the post of Principal is entitled to salary
162 INDIAN LAW REPORTS ALLAHABAD SERIES
in the Principal's grade. The D.I.O.S. is
under a legal obligation to pay the salary
to a person for the period during which he
acts as a Principal. The law is very well
settled in this respect. The D.I.O.S. has
refused to pay the salary to the petitioner in
an unjustified manner."

12. The aforesaid decisions have
consistently been followed and this Court in a
long line of decisions considering the
provisions of Section 18 of the Act, 1982 also
has followed the aforementioned law.

13. Learned counsel for the petitioner also
placed reliance upon Full Bench judgement of
this court in the Case of Dr. Jai Prakash
Narayan Singh Vs. State of U.P. and others
2014 (8) ADJ 617. The aforesaid case is in
respect of the provisions contained in U.P. State
Universities Act, 1973 and the First Statutes of
various universities. The matter was referred
before the Full Bench due to conflict between
the ration of the decision in the case of Daljeet
Singh v. State of U.P., 2007 (7) ADJ 117 (DB)
and Om Saran Tripathi Vs. State of U.P., 2009
(8) ADJ 322 (DB). The Division Bench has
referred
the
following
questions
for
consideration by the Full Bench:

1. Whether there is a conflict
between the ratio of the decisions in the cases of
Daljeet Singh Vs State of U P, 2007 (7) ADJ 117
and Om Saran Tripathi Vs State of U P , 2009
(8) ADJ 322 and if so, which of the views lays
down the law correctly; and

2. Whether an officiating Principal
appointed under Statute 10.20 of Purvanchal
University, is entitled to claim payment of
salary in the regular grade of the Principal or
not.

14. After considering all the relevant case
laws with regard to the provisions of U.P.
Intermediate Education Act, 1921, State
Universities Act and U.P. Secondary Education
Services Selection Board Act, the Full Bench
has referred the following decisions in
paragraph 4 of its judgement which reads as
under:-

"4. For the completeness of the
record, we note that Division Benches of this
Court in the following decisions directed the
payment of salary drawn by a principal to an
officiating principal of a secondary school:

(1) Dhaneshwar Singh Chauhan v.
District Inspector of Schools, Budaun, 1980
UPLBEC 286;

(2) Narbdeshwar Misra v. District
Inspector of Schools, Deoria, 1982 UPLBEC
171; and

(3) Soloman Morar Jha v. District
Inspector of Schools, Deoria, 1985 UPLBEC
113."

15. The Full Bench has also considered
the provisions of the U.P. Secondary Education
Services Selection Board Act in the following
terms:

"29. A somewhat similar situation
had arisen under the provisions of the U.P.
Secondary Education Service Selection
Board Act, 1982. That Act was enacted to
establish a Secondary Education Service
Commission for the selection of teachers in
institutions
recognized
under
the
Intermediate Education Act, 1921. The
expression 'teacher' was defined to include
a principal. Section 16 provided that
subject to the provisions of Sections 18 and
33 and certain other sections, every
appointment of a teacher upon the
commencement of the Act would be made
by
the
management
only
on
the
recommendation of the Commission and an
appointment made in contravention of the
provisions would be void. Section 18 dealt
with ad hoc appointments of teachers.
11 All. Smt. Asha Rai, Officiating Principal, Rashtriya Inter College, Tahbarpur, Azamgarh Vs. State of
 U.P. & Ors.
163
Since the provisions of Section 16 were
made subject to Section 18, ad hoc
appointments could be validly made under
Section 18. However, after the enactment of
U.P. Act 1 of 1993, Section 16 was
substituted and Section 18 of the Principal
Act was sought to be deleted. Section 33
empowered the State Government to issue
and notify Orders for removing any
difficulty, during such period as may be
specified in the Order, whereupon the
provisions of the Act would have effect
subject to adaptations whether by way of
modification, addition or omission. Two
notified Orders were issued under Section
33 (1). Neither of the two Orders provided
for any time limit during which the orders
would remain effective.

30. These provisions came up for
consideration before a Full Bench of this
Court in Radha Raizada v. Committee of
Management, Vidyawati Darbari Girls
Inter College, 1994 (2) ESC 345 (All)(FB).
Dealing with the situation, the Full Bench
held as follows:

"...After enforcement of U.P. Act
No.1 of 1993 except Section 13 thereof the
situation that emerges is that by new
Section 11 of Amendment Act which has
substituted Section 16 of the Principal Act,
has come into force whereas the omission
of Section 18 from the principal Act by
Section 13 of this amending Act has not
been enforced which means Section 18 still
continues in the Principal Act. In view of
this legislative development a peculiar
situation has arisen that new Section 16
which has come into force is no longer
subject to Section 18 of the Act which
means that no appointment on ad hoc basis
can be made under Section 18 of the Act.
New Section 16 begins with a non-obstante
clause which means in spite of other
provision, no appointment shall be made
except on the recommendation of the
Board. Where a section begins with a nonobstante clause, it indicates that the
provision should prevail despite anything to
the contrary in the provisions in the Act.
Thus after omission of Section 18 from
Section 16 no ad hoc appointment is
permissible under Section 18 and if made,
would be void under sub-section (2) of
Section 16 of the Act. It has not been
brought to my notice that First Removal of
Difficulties Order 1981 issued by the State
Government has either been revoked or
rescinded. On the contrary, it was asserted
that the said Removal of Difficulties Order
is continuing.

49.
Now
the
question
for
consideration is that if no ad hoc
appointment of teacher or Principal can be
made under Section 18 of the Act, whether
it is permissible to appoint a teacher or
Principal on ad hoc basis under the First
Removal of Difficulties Order? A perusal of
Section 16 would show that Section 16 is
still subject to Section 33 of the Act which
empowers the State Government to issue
Removal of
Difficulties
Order.
Since
Removal of Difficulties Orders have been
issued under Section 33 of the Act, an ad
hoc
appointment
either
by
direct
recruitment or by promotion under the
Removal of Difficulties Order would be a
valid appointment."

31. Hence, the Full Bench took
the view that even after the omission of a
reference to the provisions of Section 18 in
Section 16 following U.P. Act 1 of 1993,
since Section 16 was still subject to Section
33, ad hoc appointments could be made
both under the First and Second Removal
of Difficulties Orders that had been issued
under Section 33."

The answer of the Full Bench to
the reference is in the following terms:

"57. We, accordingly, dispose of
the reference in the following terms:
164 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) The decision in Daljeet Singh
(supra) does not lay down the correct
position in law; and

(ii)
An
officiating
principal
appointed under the Statutes of the
University, which are pari materia to the
provisions of Statute 10-B of the First
Statutes would be entitled to claim the
payment of salary in the regular grade of
principal for the period during which he or
she has worked until a regularly selected
candidate has been appointed and has
assumed charge of the office.

58. The reference before the Full
Bench is accordingly disposed of. The
proceedings shall now be placed before the
regular Bench in accordance with the
roster of work for disposal in the light of
this judgment."

16. The Director of Education
(Secondary), U.P., Lucknow has issued an
order dated 25th August, 2015 to all the
District Inspector of Schools of the State
directing them to appoint the senior-most
Assistant Teacher/ Lecturer as officiating
Principal of the institutions, where the
office of the Principal is vacant, and to
grant them the salary of the Principal. The
order dated 25th August, 2015 reads as
under:

"lwPp gS fd tuizfrfuf/k;ksa ,oa
ek/;fed fo|ky;ksa ds lsok la?kksa ds izfrfuf/k;ksa
}kjk ;g laKku esa yk;k x;k gS fd v'kkldh;
lgk;rk izkIr ek/;fed fo|ky;ksa esa ekSfyd :i
ls fjDr iz/kkuk/;kid@iz/kkukpk;Z ds in ij
laLFkk ds T;s"Bre l-v-@T;s"Bre izoDrk ds
LFkku ij dfu"B l-v-@dfu"B izoDrk ds
gLrk{kj izekf.kr fd;s tkrs gSaA

2- vki voxr gh gaS fd mRrj izns'k
ek/;fed f'k{kk lsok p;u cksMZ vf/kfu;e] 1982
Â1⁄4;Fkkla'kksf/krÂ1⁄2 dh /kkjk&18 esa izko/kku fd;k
x;k gS fd /kkjk 10 dh mi/kkjk&1 esa fd;s x;s
izko/kkuqlkj cksMZ dks fjfDr dh lwpuk fn;s tkus
,oa iz/kkuk/;kid@iz/kkukpk;Z dk in okLro esa 02
ekg ls vf/kd fjDr gksus dh fLFkfr esa laLFkk ds
iz/kkuk/;kid@iz/kkukpk;Z ds in ij laLFkk ds
T;s"Bre l-v- @T;s"Bre izoDrk dh rnFkZ
inksUufr laLFkk izcU/kra= }kjk dh tk;sxhA
mijksDr /kkjk esa ;g Hkh izko/kku fd;k x;k gS fd
tgk izcU/kra+= T;s"Bre l-v-@T;s"Bre izoDrk
dks rnFkZ :i ls inksUufr djus esa foQy jgs ogka
fujh{kd ,sls v-v-@izoDrk dh inksUufr vkns'k
Lo;a tkjh djsxk ,oa lEcfU/kr l-v-@izoDrk tc
inksUufr ds ,sls vkns'k ds vuqlj.k esa in dk
dk;ZHkkj xzg.k djsa] iz/kkuk/;kid@iz/kkukpk;Z ds
:i esa vius osru dk gdnkj gksxkA

3- mijksDr izko/kkuksa ds vkyksd esa
f'k{k.k laLFkk e sa iz/kkuk/;kid@iz/kkukpk;Z dk in
ekSfyd :i ls fjDr gksus dh fLFkfr esa laLFkk ds
dfu"B l-v-@dfu"B izoDrk ds gLrk{kj
dk;Zokgd iz/kkuk/;kid@ dk;Zokgd ds :i esa
izekf.kr fd;k tkuk lUnfHkZr vf/kfu;e ds loZFkk
foijhr gSA

4- vr% vkidks funsf'kr fd;k tkrk gS
fd vf/kfu;e O;oLFkkuqlkj dk;Zokgh fd;k tkuk
lqfuf'pr djsaA vf/kfu;e ds izko/kkuksa ds foijhr
dk;Zokgh gsrq vki Lo;a mRrjnk;h gksxas ,oa
vkidk mDr vkpj.k mRrj izns'k jktdh;
deZpkjh fu;ekoyh] 1956 ds vkpj.k fu;e&3 ds
foijhr gksus ds vk/kkj ij vkids fo:)
vuq'kklfud dk;Zokgh lafLFkr fd;s tkus gsrq
'kklu ls vuqjks/k djus dh iz'kkldh; ck/;rk
gksxhA vk'kk gS fd vki ,slh v:fpdj fLFkfr
mRiUu ugha gksus nsaxsA "

17. Thus, the stand taken by the
District Inspector of Schools that the
petitioner was not appointed as an ad hoc
Principal in terms of Section 18 of the U.P.
Secondary Education Services Selection
Board Act, 1982 and Regulation 2(3) of the
U.P. Intermediate Education Act, 1921 is
completely misconceived and misleading.

18. On the basis of analysis of the
above principle, the stand taken by the
respondent No.3 in the order is absolutely
illegal. It further appears from perusal of
11 All. Om Prakash Rai & Ors. Vs. Board of Revenue, Allahabad & Ors.
165
the record that taking into consideration the
provisions of the Act, 1982, Government
Order dated 25th August, 2015 has already
been issued by the Director of Education
(Secondary), U.P., Lucknow to all the
District Inspector of Schools of the State
directing them to appoint the senior-most
Assistant Teacher/ Lecturer as officiating
Principal of the institutions, where the
office of the Principal is vacant, and to
grant them the salary of the Principal.

19. It is unfortunate that in spite of the fact
that clear provisions which are contained in the
Act and Government Order in this regard has
already been issued by the Director of
Education (Secondary), U.P., Lucknow on 25th
August, 2015, the stand taken by the respondent
No.3 in the present case refusing payment of
salary to the petitioner on the same ground
which were earlier dealt with by different
Division Benches as well as Full Bench of this
Court could not be justified.

20. After careful consideration of the
matter, I am of the view that the ends of justice
would be subserved by setting aside impugned
order 01.08.2015 passed by District Inspector of
Schools, Azamgarh/respondent No.3 and by
issuing a direction upon the Regional Joint
Director of Education, Azamgarh/respondent
No.2 to consider the grievance of the petitioner
about her salary of the officiating Principal in
the principal's grade. The petitioner is at liberty
to file a fresh representation before the Joint
Director of Education, Azamgarh Region,
Azamgarh who shall pass the order in the light
of the observations made herein-above within
two months from the date of communication of
this order.

21. With the aforesaid observations,
the writ petition is allowed. No order as to
costs.
----------
(2020)11ILR A165
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2020

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Writ-B No. 853 of 2020

Om Prakash Rai & Ors. ...Petitioners
Versus
Board of Revenue, Allahabad & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Virendra Singh, Sri Shyam Singh

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Tripathi, Sri
Bhupendra Kumar Tripathi, Sri Himansu
Pandey, Sri Pradeep Kumar Dwivedi, Sri
K.K. Pandey

A. Civil Law - Code of Civil Procedure:
Order XXIII, Rule 3, 3-A - Practice &
Procedure - The Court relied upon the
decision of the Supreme Court wherein it
was held in case on the basis of
compromise any order was passed, the
same could only be examined by the same
court and not by the other court under the
provisions to Rule 3 and 3-A of Order
XXIII of the CPC. The Court should never be
a party to imposition of a compromise upon an
unwilling party. It is always open for an
unwilling party to question on the same by
moving an appropriate application under proviso
of Rule 3 of Order XXIII before the same court.
(Para 11) (E-10)

List of Cases cited:-

1. Banwari Lal Vs Chando Devi (1993) 1 SCC
581

2. Pushpa Devi Bhagat (Dead) through LR
Sadhna Rai (Smt) Vs Rajinder Singh & ors.
(2005) 5 SCC 566