# Smt. Savita Gupta v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-12-23
- **Case number:** Writ-A No. 58456 of 2015
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-savita-gupta-v-state-of-u-p-ors-43417
- **Pages:** 10

## Headnote

Constitution of India, Art.-226-payment
of salary-officiating Principal entitled for
salary of principal-in view of full Bench
decision-order impugned contrary to thatnot
sustainable-quashed-consequential
direction issued.
Held: Para-21
In addition to above, the law in respect
of payment of salary to officiating
principal is no more res integra. This
Court in a long line of decisions has held
that the officiating/ad hoc principal is
entitled to salary of principal's grade
while officiating on the post of the
principal.
Case Law discussed:
1980 UPLBEC 286; 2014 (8) ADJ 617(FB);
1982 UPLBEC 171; 1985 UPLBEC 113; (2014)
14 SCC 388; (1996) 4 Supreme Court Cases
622

## Text

106
 INDIAN LAW REPORTS ALLAHABAD SERIES
for engagement as Shiksha Mitra was
terminated in terms of clause 9 of the
aforesaid
Government
Order
dated
26.5.1999. The said resolution was not
challenged by the respondent no.5 before any
Court. Consequently, it attained finality.
10.
Unless the aforesaid resolution
dated 19.5.2007 is set aside by a competent
court, it was not open for the District
Magistrate to pass the impugned order
directing for payment of honorarium to the
respondent no.5 and renewal of her contract
of Shiksha Mitra. Thus the impugned order
dated
24.6.2011
passed
by
District
Magistrate, Sant Kabir Nagar is arbitrary,
illegal
and
without
jurisdiction
and,
therefore, deserves to be set aside.
11. In result, the writ petition
succeeds and is hereby allowed. The
impugned order dated 24.6.2011 passed
by District Magistrate, Sant Kabir Nagar,
is set aside.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.12.2015
BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
Writ-A No. 58456 of 2015
Smt. Savita Gupta
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Pankaj Kr. Srivastava, Sasmita Srivastava
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-payment
of salary-officiating Principal entitled for
salary of principal-in view of full Bench
decision-order impugned contrary to thatnot
sustainable-quashed-consequential
direction issued.
Held: Para-21
In addition to above, the law in respect
of payment of salary to officiating
principal is no more res integra. This
Court in a long line of decisions has held
that the officiating/ad hoc principal is
entitled to salary of principal's grade
while officiating on the post of the
principal.
Case Law discussed:
1980 UPLBEC 286; 2014 (8) ADJ 617(FB);
1982 UPLBEC 171; 1985 UPLBEC 113; (2014)
14 SCC 388; (1996) 4 Supreme Court Cases
622
(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
1.
The petitioner is an officiating
Principal of an institution, namely, Arya
Shyama Balika Inter College, Bharthana,
District Etawah. The said institution is a
recognized and is under the grant-in-aid list of
the State Government. It is governed under the
provisions of the U.P. Intermediate Education
Act, 1921 and the U.P. High Schools and
Intermediate Colleges (Payment of Salaries to
Teachers and other Employees) Act, 1971.
2. In the institution a vacancy occurred
in the office of the Principal. The petitioner,
who was senior-most Lecturer in the
institution was appointed as officiating
Principal. The appointment of the petitioner
was approved by the District Inspector of
Schools vide order dated 30.11.2007. The
District Inspector of Schools approved the
said appointment till the regular selection of
the Principal is made by the U.P. Secondary
Service Selection Board. A copy of the order
dated 30.11.2007 is on the record as
Annexure-2
to
the
writ
petition.
1 All.
 Smt. Savita Gupta Vs. State of U.P. & Ors.
107
3. It is recorded in the order of the
District Inspector of Schools that the
signature of the petitioner has already
been attested on 06.07.2007. Since then
the petitioner is working as officiating
Principal in the institution. .
4.
The Director of Education on
02.04.2014 issued an order for recovery of
the salary of the petitioner on the ground
that she is not entitled for salary of the
Principal as the grade granted to her is not
applicable to ad hoc/officiating Principal.
5. The said order was challenged by
the petitioner by means of Writ Petition
No.43095 of 2014 (Smt. Savita Gupta v.
State of U.P. & others). This Court vide
order dated 20.08.2014 has passed the
following order:
"It is contended that the petitioner who
is working as officiating Principal is entitled
for the salary in view of the various
judgements of this Court, however the
Director
of
Secondary
Education
i.e.
respondent no. 2 by impugned order dated 02
April 2014 has issued direction to the District
Inspector of Schools, Etawah i.e. respondent
no. 4 to recover the difference of salary and
for the fresh pay fixation in the light of his
directions.
The respondent no. 4 has passed the
consequential order on 26 April 2014 for
the recovery of the excess amount.
Matter needs consideration.
Learned Standing Counsel is granted
six weeks' time to file counter affidavit.
Rejoinder affidavit, if any, may be filed
within a week thereafter.
List
this
case
in
the
week
commending 27 October 2014. Till the
next date of listing no recovery for the
excess amount shall be made in pursuance
of the impugned order."
6. In spite of the said order, the
District Inspector of Schools in his order
dated 03.08.2015 after extracting the
order of this Court dated 20.08.2014 has
issued a direction to the Principal of the
institution that her salary as Principal
should not be paid and the salary bill has
been returned to correct it. A copy of the
order dated 03.08.2015 is on the record.
7. It appears that in response to the
said communication of the District
Inspector of Schools the Committee of
Management on 26.09.2015 again sent the
salary bill of the petitioner on the ground
that this Court has already granted the
interim order on 23.02.2012 in Writ
Petition No.9708 of 2012 (Dr. Manju
Verma v. State of U.P. & others) which is
also pending in this Court.
8. The grievance of the petitioner is
that the District Inspector of Schools in
spite of the interim order passed by this
Court is not paying the salary of the
petitioner although the interim order is
still continuing.
9. While entertaining this writ
petition this Court on 13.10.2015 has
recorded the following observation:
"I am prima facie satisfied that the
District Inspector of Schools has tried to
overreach the order of this Court dated
20.08.2014. The said order is in his full
knowledge. He has extracted the order
himself. The order does not assign any
reason for not paying the salary to the
petitioner
as
officiating
Principal.
Accordingly, the District Inspector of
108
 INDIAN LAW REPORTS ALLAHABAD SERIES
Schools is directed to file his personal
affidavit on or before 28th October, 2015."
10. In compliance of said order the
District Inspector of Schools has filed his
personal affidavit.
11. Learned Standing Counsel has
placed the various paragraphs of the
counter affidavit filed by the District
Inspector of Schools.
12. The District Inspector of Schools
in his counter affidavit has reiterated the
same stand which he has taken in his
order dated 03.08.2015. The District
Inspector of Schools has also taken the
stand that in the previous Writ Petition
No.43095 of 2014 (Smt. Savita Gupta v.
State of U.P. & others) a counter affidavit
has been filed, therefore, granting the
salary of the Principal to an ad hoc
Principal would not be legal. The relevant
part of the affidavit filed by the District
Inspector
of
Schools
is
extracted
hereunder below:
"6& ;g fd izfr'kiFki= nkf[ky djus ds
mijkUr izca/kd] vk;Z ';kek ckfydk b.Vj dkyst]
HkjFkuk] bVkok ds }kjk ,d i= fnukad 30-12-2014 bl
dk;kZy; dks izsf"kr djrs gq, rnFkZ iz/kkukpk;Z dk osru
iwoZ dh Hkkafr la'kksf/kr fd;s fcuk ikfjr djus dk vuqjks/k
fd;k x;k FkkA ftlds mRrj esa bl dk;kZy; ds i=
fnukad 19-01-2015 ds }kjk izca/kd dks ;g fy[krs gq,
voxr djk;k x;k fd mDr izdj.k esa ekuuh; mPp
U;k;ky; esa ;ksftr ;kfpdk la0 43095@2014 ds vkns'k
fnukad 20-08-2014 ds vuqikyu esa izfr'kiFki= nkf[ky
fd;k tk pqdk gSA vr% rnFkZ iz/kkukpk;kZ dks iwoZ dh
Hkkafr la'kks/ku fd;s fcuk osru Hkqxrku fd;k tkuk fof/k
laxr ugha gSA blds mijkUr ;kph us ,d vkosnu i=
fnukad 17-07-2015 dk;kZy; dks vius osru Hkqxrku ds
laca/k esa izsf"kr fd;kA ftlds mRrj esa bl dk;kZy; ds
i= fnukad 03-08-2015 ds }kjk ;kph dks iqu% fu;eksa ds
vkyksd esa voxr djk;k x;k fd mudh ekax dks
Lohdk;Z djrs gq, iwoZ dh Hkkafr osru fn;k tkuk fof/k
laxr ugha gSA vr% vki viuk osru la'kksf/kr djkrs gq,
osru fcy bl dk;kZy; dks 'kh?kz miyC/k djkdj ikfjr
djokuk lqfuf'pr djsa ekuuh; U;k;ky; ds voyksdukFkZ
vkosnu i= fnukad 17-07-2015 ,oa dk;kZy; ds i=
fnukad 03-08-2015 dh Nk;kizfr dze'k% layXud lh0,0
04 o 05 ds :i esa layXu dh tk jgh gSA blds
mijkUr dk;kZy; Lrj ij i= fnukad 21-09-2015 o 1910-2015 esa ;kph dks osru la'kksf/kr djkrs gq, osru
ns;d izLrqr djus ds funsZ'k iznku fd;s x;sA ekuuh;
U;k;ky; ds voyksdukFkZ dk;kZy; ds i= fnukad 21-092015 o 19-10-2015 dh Nk;kizfr dze'k% layXud
lh0,0&06 o 07 ds :i esa layXu dh tk jgh gSA fdUrq
;kph }kjk mDr vkns'k fnukad 03-08-2015 ds fo:) iqu%
,d ;kfpdk la0 58456@2015 ekuuh; mPp U;k;ky;
esa ;ksftr djrs gq, vkns'k fnukad 13-10-2015 izkIr fd;k
x;kA ;kph }kjk vius v/khu f'k{kdksa@ deZpkfj;ksa dk
fu;fer :i ls vius fo+|ky; dk osru fcy gLrk{kj
dj Lo;a izsf"kr fd;k tkrk jgk gS foHkkxh; vkns'kksa ds
mijkUr Hkh ;kph osru la'kksf/kr u djkus ds dkj.k Lo;a
viuh bPNk ls viuk osru la'kksf/kr djkdj izkIr ugha
dj jgh gSA"
13. As can be seen the District
Inspector of Schools has tried to justify
his order ignoring earlier interim order
passed by this Court.
14. The learned counsel for the
petitioner contended that this Court in a
long line of decisions has held that ad
hoc/officiating principal is entitled the
principal's grade.
15. Learned counsel for the petitioner
has also placed reliance on the judgment of
this Court in the case of Dhaneshwar Singh
Chauhan v. The District Inspector of
Schools, Budaun and others, 1980 UPLBEC
286, wherein the Court has taken a view that
the teacher officiating on the post of
Principal shall be entitled to receive salary in
Principal's grade. The said view has been
reiterated by a recent Full Bench of this
Court in Dr. Jai Prakash Narayan Singh v.
State of U.P. and others, 2014 (8) ADJ 617
(FB), and the Division Benches of this Court
in Narbdeshwar Misra v. District Inspector of
1 All.
 Smt. Savita Gupta Vs. State of U.P. & Ors.
109
Schools, Deoria, 1982 UPLBEC 171, and
Soloman Morar Jha v. District Inspector of
Schools, Deoria, 1985 UPLBEC 113.
16. I have heard learned counsel for
the petitioner and the learned Standing
Counsel.
17.
A perusal of the order of the
District
Inspector
of
Schools
dated
03.08.2015 indicate that despite the fact that
he has extracted the order of this Court, even
then has taken the stand that granting the
salary of the officiating Principal would not
be legal, clearly indicates the adamant
attitude of the District Inspector of Schools,
coupled with the fact that a stand has been
taken by him in paragraph-6 of the counter
affidavit that since a counter affidavit in
another writ petition has been filed, it would
not be proper to pay the salary to the
petitioner.
18. From the tenor of the counter
affidavit of the District Inspector of
Schools it is evident that he is bound by
the Government Orders and not by the
judgments of this Court. In the counter
affidavit he has not expressed any regret
for taking the stand mentioned in the
impugned order dated 03.08.2015.
19. The Supreme Court in the case of
State of Uttarakhand and others v. Kanhaya
Lal, (2014) 14 SCC 388, has considered the
somewhat similar facts where in spite of the
direction of the learned Single Judge the
Additional Director of Education, without
investigating the aspect properly, has
revisited the entire case and has virtually
overruled the order passed by the learned
Single Judge. The Supreme Court, in such a
situation, found that the action of the
Additional
Director
of
Education
is
contemptuous of the order of the High Court.
Paragraph-3 of the judgment, as is material
for the present case, is quoted below:
"3. On a perusal of the SLP paper book,
we are disturbed to note that pursuant to the
orders of the learned Single Judge, the
Additional Director of Education, Garhwal
Division, Pohri, instead of investigating the
aspect whether or not any other obstacles
existed, has revisited the entire case and has
virtually overruled the order passed by the
learned Single Judge. Having perused the
report/order of the Additional Director of
Education, Pohri dated 23-5-2008, it would
be
possible
to
view
his
action
as
contemptuous of the orders of the High
Court. The learned Single Judge had directed
for appointment to the post of Assistant
Teacher (Language) LT Grade "unless there
was some other impediment in selection". As
we have already opined, the Additional
Director of Education has not disclosed "any
other impediment" and instead has merely
reiterated the already articulated case of the
State, which had not found favour with the
High Court. It is palpably clear that the
Additional Director of Education, Garhwal
Division, Pauri, has contumaciously adorned
itself with appellate powers over the decision
of the learned Single Judge of the High
Court. We shall desist from making any
further directions, however, leaving it open
to the respondent to initiate proceedings, if so
advised."
20.
In the same judgment, the
Supreme Court has also deprecated the
practice of the State to engage a teacher in
fighting futile litigation. The relevant part of
the judgment being paragraph-5 reads as
under:
"5. ...In this case, the writ petitioner
is a Teacher and it is unfair to him to be
repeatedly drawn into fighting futile, if
110
 INDIAN LAW REPORTS ALLAHABAD SERIES
not frivolous litigation by the State. It has
become the practice of the State to carry
on filing appeals even where the case
does not deserve it, knowing fully well
that private respondents will be physically
fatigued and economically emasculated in
pursuing protracted litigation."
21.
In addition to above, the law in
respect of payment of salary to officiating
principal is no more res integra. This Court
in a long line of decisions has held that the
officiating/ad hoc principal is entitled to
salary of principal's grade while officiating
on the post of the principal. The Division
Bench of this Court in the case of
Dhaneshwar Singh Chauhan v. The District
Inspector of Schools, Budaun and others,
1980 UPLBEC 286 held as under:
"2. The petitioner is a teacher in
aided and recognised institution and the
liability for the prejoint 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 31-8-77 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."
22. The same view was taken by
another Division Bench of this Court in
the cases of Narbdeshwar Mishra v. The
District Inspector of Schools, Deoria and
others, 1982 UPLBEC 171 and Soloman
Morar Jha v. District Inspector of
Schools,
Deoria
and
others,
1985
UPLBEC 113.
1 All.
 Smt. Savita Gupta Vs. State of U.P. & Ors.
111
23. The same issue was referred to a
Full Bench in the case of Dr. Jai Prakash
Narayan Singh v. State of U.P. and others,
2014 (8) ADJ 617 (FB). The relevant
material in the present controversy reads
as under:
"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. 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 nonobstante 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 non-obstante
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
112
 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
24. Regard being had to the fact that
recently
the
Director
of
Education
(Secondary), U.P., Lucknow on 25th
August, 2015 issued an order to all the
District Inspector of Schools that an
officiating principal shall be paid in the
grade of the principal. A copy of the order
of the Director dated 25th August, 2015 is
quoted here-under below:
"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 1⁄4;Fkkla'kksf/kr1⁄2 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 tgka 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 esa iz/kkuk/;kid@iz/kkukpk;Z dk in ekSfyd
:i ls fjDr gksus dh fLFkfr esa laLFkk ds dfu"B lv-@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 gksaxs ,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"
(emphasis supplied)
25. In view of the above, it is
evident that the District Inspector of
Schools has tried to overreach the interim
order of this Court dated 20.08.2014
passed in companion writ petition, Writ-A
No.43095 (Smt. Savita Gupta v. State of
U.P. & others).
26. The Supreme Court in the case
of Delhi Development Authority v.
Skipper Construction Co. (P) Ltd. and
another (1996) 4 Supreme Court Cases
622, has approved the decisions of the
Madras and the Calcutta High Courts.
Relevant part of the order reads as under:
"19. To the same effect are the
decisions of the Madras and and Calcutta
High Courts in Century Flour Mills Ltd. v. S.
Suppiah, AIR 1975 Mad 270 : (1975) 2 MLJ
54 and Sujit Pal v. Prabir Kumar Sun AIR
1986 Cal 220 : (1986) 90 CWN 342. In
Century Flour Mills Ltd. AIR 1975 Mad 270
: (1975) 2 MLJ 54 it was held by a Full
Bench of the Madras High Court that where
an act is done in violation of an order of stay
or injunction, it is the duty of the court, as a
policy, to set the wrong right and not allow
the perpetuation of the wrongdoing. The
inherent power of the court, it was held, is
not only available in such a case, but it is
bound to exercise it to undo the wrong in the
1 All.
 Smt. Savita Gupta Vs. State of U.P. & Ors.
113
interest of justice. That was a case where a
meeting was held contrary to an order of
injunction. The Court refused to recognise
that the holding of the meeting is a legal one.
It put back the parties in the same position as
they stood immediately prior to the service of
the interim order.
20. In Sujit Pal AIR 1986 Cal 220 :
(1986) 90 CWN 342 a Division Bench of the
Calcutta High Court has taken the same
view.
There,
the
defendant
forcibly
dispossessed the plaintiff in violation of the
order of injunction and took possession of
the property. The Court directed the
restoration of possession to the plaintiff with
the aid of police. The Court observed that no
technicality can prevent the court from doing
justice in exercise of its inherent powers. It
held that the object of Rule 2-A of Order 39
will be fulfilled only where such mandatory
direction is given for restoration of
possession to the aggrieved party. This was
necessary, it observed, to prevent the abuse
of process of law.
27. The adamant attitude adopted by
the District Inspector of Schools in his
counter affidavit clearly indicates that his
order is suffered from malice in law.
28. In Writ-A No.58665 of 2015
(Ram Raseeley Pandey v. State of U.P. &
others), there was similar fact. The
District Inspector of Schools in the said
case has refused to follow the law laid
down by this Court.
29. The Court in the said case found
that the action of the District Inspector of
Schools suffered from malice in law. The
Court held as under:
"In Kalabharati Advertising (supra) the
Supreme Court has followed its earlier
decision in Punjab State Electricity Board
Ltd. v. Zora Singh and others (2005) 6 SCC
776, where the malice in the legal sense has
been explained by the Court. Relevant parts
of the judgment in Punjab State Electricity
Board Ltd. (supra), being paragraphs- 40, 41
& 42, are extracted below:
"40. Furthermore, there cannot be
any doubt whatsoever that even if an
order is found to be not vitiated by reason
of malice on fact but still can be held to
be invalid if the same has been passed for
unauthorised purposes, as it would
amount to malice in law.
41. In S.R. Venkataraman v. Union
of India (1979) 2 SCC 491:1979 SCC
(L&S) 216:AIR 1979 SC 49 this Court
observed: (SCC p. 494, para 5)
"It is not therefore the case of the
appellant that there was actual malicious
intention on the part of the Government in
making the alleged wrongful order of her
premature retirement so as to amount to
malice in fact. Malice in law is, however,
quite
different.
Viscount
Haldane
described it as follows in Shearer v.
Shields 1914 AC 808: 111 LT 297 (HL):
'A person who inflicts an injury upon
another person in contravention of the law is
not allowed to say that he did so with an
innocent mind; he is taken to know the law,
and he must act within the law. He may,
therefore, be guilty of malice in law,
although, so far the state of his mind is
concerned, he acts ignorantly, and in that
sense innocently.'
Thus malice in its legal sense means
malice such as may be assumed from the
doing of a wrongful act intentionally but
without just cause or excuse, or for want
of reasonable or probable cause."
114
 INDIAN LAW REPORTS ALLAHABAD SERIES
42. In State of A.P. v. Goverdhanlal
Pitti (2003) 4SCC 739 this Court
observed: (SCC p. 744, paras 12-13)
"12. The legal meaning of malice is
'ill-will or spite towards a party and any
indirect or improper motive in taking an
action'. This is sometimes described as
'malice in fact'. 'Legal malice' or 'malice
in law' means 'something done without
lawful excuse'. In other words, 'it is an act
done wrongfully and wilfully without
reasonable or probable cause, and not
necessarily an act done from ill feeling
and spite. It is a deliberate act in disregard
of the rights of others'. (See Words and
Phrases
Legally
defined,
3rd
Edn.,
London Butterworths, 1989.)
13. Where malice is attributed to the
State, it can never be a case of personal
ill-will or spite on the part of the State. If
at all it is malice in legal sense, it can be
described as an act which is taken with an
oblique or indirect object. Prof. Wade in
his authoritative work on Administrative
Law (8th Edn., at p. 414) based on
English decisions and in the context of
alleged illegal acquisition proceedings,
explains that an action by the State can be
described mala fide if it seeks to 'acquire
land' 'for a purpose not authorised by the
Act'."
(See also Chairman & MD, BPL Ltd.
v. S.P. Gururaja (2003) 8 SCC 567 and P.
Anjaneyulu v. Chief Manager, A.P.
Circle, Bharat Sanchar Nigam Ltd. (2001)
3 An LD 313 (DB)"
On the analysis of the above
principle I am of the opinion that the
stand taken by the second respondent in
his counter affidavit is suffered by malice
in law.
It is astonishing that the District
Inspector of Schools, being a senior
official in education department, is totally
unaware about the well settled law laid
down by this Court and the order issued
by the Director of Education. It is a
common experience of the Court that the
Government officers in general and
officials of education department in
particular disregard the well-settled law of
this Court and try to justify their orders
even after their order is set aside by the
Court, on the pretext of some Government
Order or circular of the department. The
Supreme Court has noticed this tendency
of the officials in the case of E.T. Sunup
v. C.A.N.S.S. Employees Association and
another (2004) 8 SCC 683. The relevant
paragraph of the judgment is as under:
"16. It has become a tendency with the
government officers to somehow or the other
circumvent the orders of court and try to take
recourse to one justification or other. This
shows complete lack of grace in accepting
the orders of the Court. This tendency of
undermining the Court's order cannot be
countenanced. This Court time and again has
emphasised that in a democracy the role of
the
court
cannot
be
subservient
to
administrative fiat. The executive and
legislature have to work within the
constitutional framework and the judiciary
has been given the role of watchdog to keep
the legislature and executive within check...."
The said judgment has been followed
by the Supreme Court in the case of
Maninderjit Singh Bitta v. Union of India
and others (2012) 1 SCC 273.
If such an official/officer is allowed
to continue, his ignorance of law will be
oppressive for the teaching and nonteaching staff of the institutions and will
also burden this Court by unnecessary
litigations. Public time will be wasted in
such litigations."
30. In view of the above I am of the
view that the District Inspector of Schools
has taken a wholly unjustified stand for
1 All. Smt. Vimla Srivastava Vs. State of U.P. & Anr.
115
denying the principal's grade to the
petitioner in spite of the well settled law
on this issue. He has also ignored the
order of the Director dated 25th August,
2015 extracted herein above wherein a
clear direction has been issued for
payment of principal's grade to the
officiating principal.
31. In the counter affidavit it has not
been denied by the District Inspector of
Schools that the approval granted by him
dated 30th November, 2007 has not been
recalled or cancelled. Thus, in my view the
petitioner is entitled for principal's grade
from the date of assuming the charge of the
office of officiating principal.
32. Pertinently, now the Director of
Education (Secondary) on 25th August,
2015 has issued a direction for the
purpose of principal's grade to ad
hoc/officiating principal. The Director has
also warned the concerned authorities that
if direction is not complied it shall be
treated as misconduct and they will be
subjected to disciplinary proceedings.
33. In view of the recent order of the
Director, there is no need to send the
matter again to the District Inspector of
Schools, who appears to adamant to reject
the claim of the petitioner.
34. Accordingly, the writ petition is
allowed. The District Inspector of Schools
is directed to pay petitioner's salary in
principal's grade within two months from
the date of communication of this order.
35. The petitioner shall file an
affidavit that payment received by her
shall abide the result of writ petition,
Writ-A No.43095 of 2014 (Smt. Savita
Gupta v. State of U.P. & others).
36. No order as to costs.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Writ-C No. 60881 of 2015.
 with
Writ-C No. 14853 of 2015 and Writ-C No.
20204 of 2015
Smt. Vimla Srivastava
 ...Petitioner
Versus
State of U.P. & Anr.
...Respondents
Counsel for the Petitioner:
Santosh Kumar Srivastava, Nitin Kumar
Rai, Pavan Kumar Singh
Counsel for the Respondents:
C.S.C.
Uttar Pradesh Recruitment of Dependents
of Government Servant Dying-in-Harness
Rules-1974-Rule
2(c)(iii)-definition
of
"Family"-ward unmarried daughter-being
indiscriminately violate by Art.-14 and 15 of
Constitution-even married daughter is the
daughter
of
deceased
employee-hence
word 'married' struck down-consequential
follow up directions given.
Held: Para-27 & 28
27. In conclusion, we hold that the
exclusion of married daughters from the
ambit of the expression "family" in Rule
2 (c) of the Dying-in-Harness Rules is
illegal
and
unconstitutional,
being
violative of Articles 14 and 15 of the
Constitution.
28. We, accordingly, strike down the
word 'unmarried' in Rule 2 (c) (iii) of the
Dying-in-Harness Rules.
Case Law discussed: