# Tiwari v. Director of Education & - **Citation:** (2009) 2 ILRA 656 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2009-07-14 - **Case number:** Civil Misc. Writ Petition No. 62394 of 2008 - **Bench:** Amitava Lala, Shishir Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tiwari-v-director-of-education-41407 - **Pages:** 2 ## Headnote Constitution of India-Article-226-Post Retiral benefits-petitioner working as driver-became unfit due to accidentservice terminated on ground of unfitness on opinion of medical boardalternate jobs provided in pursuance-of interim order worked upto the age of superannuation- by supply affidavit relief for post retiral benefits-claimedtechnical objection-in absence of specific prayer by amendment-no such relief can be granted-held court empowered to grant such relief even if not claimedpetition disposed of with direction to consider payment of post retirement benefits within three months. ## Text 656 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 14.07.2009 BEFORE THE HON'BLE AMITAVA LALA, J THE HON'BLE SHISHIR KUMAR, J Civil Misc. Writ Petition No. 62394 of 2008 Om Saran Tripathi ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri Arvind Srivastava Sri Ashok Kr. Dubey Counsel for the Respondent: Sri R.B. Pradhan S.C. U.P. State Universities Act-1973-Section 2 (19)-words and pharases -'Teacher' - includes the principal also petitioner claiming Salary-the period on which worked as officiating principal -vacancy of principal not filled for the last 6 yearssenior most lecturer entitled to work as officiating principal-held entitled for salary. Held: Para 6 Thus, coming back to the original position, we are of the view that we cannot deviate ourselves from our earlier stand as we have taken in C.M.W.P. No. 49172 of 2008. Having so distinguishing feature between our decision relied upon in earlier judgments and the judgment of Daljeet Singh (supra) therefore, the writ petition is disposed of accordingly, however, without imposing any cost. The respondents are directed to pay salary and emoluments of the petitioner for the post of Principal when he was officiating as principal with in the period of three months from the date of communication of this order. Case law discussed: C.M.W.P. No. 49172 of 2008, 2007 (4) ESC 2261 (All) (DB), 1997(1) E.S.C. 164 (All), (Delivered by Hon'ble Amitava Lala, J.) 1. The petitioner has made this writ petition to direct the respondents to pay the salary and emoluments of the post of Principal to the petitioner when he has acted as Principal in the institution from the month of July, 2008 till date. He relied upon the judgments of this Bench dated 18th September, 2008 passed in C.M.W.P. No. 49172 of 2008 (Dr. V.K. Tiwari Vs. Director of Education & others) 2. Learned Standing Counsel has taken a different view in view of the judgment report in 2007 (4) ESC 2261 (All) (DB) [Daljeet Singh Vs. State of U.P. & others] to substantiate that there is distinction between a government servant who is promoted to higher post and who is discharging duties of the higher post on the exigencies. Mere discharge of such duties in the higher post cannot be treated as promotion, therefore, the person acted as ad hoc Principal in the institution cannot get salary and emoluments of the regular Principal. 3. Mr. Arvind Srivastava, learned counsel appearing for the petitioner, has relied upon another Division Bench judgment reported in 1997(1) E.S.C. 164 (All)[Km. Renu Tiwari and others Vs. The Director, Higher Education, Allahabad (U.P.) and others]. In that case in considering the respective Regularization Rules, 1979 the Court held that practice of adhocism has been deprecated by the Supreme Court in numerous cases. In a number of cases, the 2 All] Om Saran Tripathi V. State of U.P. and others 657 Supreme Court indicated equal pay for equal work and has directed the concerned authorities for making payment of same emoluments to the incumbents working in the organization. 4. In any event, upon going through the judgment, we have also gone through the counter affidavit. In sub-para (e) of para 3 of the same we find that stand factually taken by the State is that unless the vacancy is notified by the Committee of Management to the Commission for filling up the post of Principal on regular basis, the officiating Principal cannot claim salary of the regular Principal for the period he officiated as Principal of the college. 5. We have come to know that the vacancy of the Principal has not been filled for a long period i.e. for a period of 6 years, therefore, the senior most teacher was directed to discharge the duty of the Principal which is not a post of promotion. Section 2(19) of the U.P. State Universities Act, 1973 gives definition of the 'teacher' which includes a Principal. Principal will be selected by the Commission from amongst the senior most teacher. There is no scope of promotion as such, in totality, the senior most teacher, who is officiating for the post of Principal, is not being promoted to apply the ratio of the judgment laid down in Daljeet Singh (supra). 6. Thus, coming back to the original position, we are of the view that we cannot deviate ourselves from our earlier stand as we have taken in C.M.W.P. No. 49172 of 2008. Having so distinguishing feature between our decision relied upon in earlier judgments and the judgment of Daljeet Singh (supra) therefore, the writ petition is disposed of accordingly, however, without imposing any cost. The respondents are directed to pay salary and emoluments of the petitioner for the post of Principal when he was officiating as principal with in the period of three months from the date of communication of this order. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 20.07.2009 BEFORE THE HON'BLE RAKESH TIWARI, J. Civil Misc. Writ Petition No. 30252 of 2002 Om Prakash Kapoor ...Petitioner Versus Managing Director, UPSRTC and others ...Respondents Counsel for the Petitioner: Sri R.C. Pal Sri Dinesh Tiwari Counsel for the Respondents: Sri V.K. Singh Sri N.N. Sharma Sri P.N.Rai S.C. Constitution of India-Article-226-Post Retiral benefits-petitioner working as driver-became unfit due to accidentservice terminated on ground of unfitness on opinion of medical boardalternate jobs provided in pursuance-of interim order worked upto the age of superannuation- by supply affidavit relief for post retiral benefits-claimedtechnical objection-in absence of specific prayer by amendment-no such relief can be granted-held court empowered to grant such relief even if not claimedpetition disposed of with direction to consider payment of post retirement benefits within three months.