Anjani Kumar, Sudhir Agarwal, JJ. - (1.) HEARD Sri S. P. Singh, learned counsel for the petitioner and learned standing counsel for the respondents.
(2.) THE writ petition is directed against the order dated 31.12.2006 passed by the Director of Education (Higher Education) U. P., Allahabad rejecting representation of the petitioner claiming salary on the post of officiating Principal of Mahatma Gandhi Post Graduate College, Fatehpur (hereinafter referred to as 'College'). The facts in brief as stated in the writ petition are that the College is a recognized and aided institution governed by the provisions of U. P. State Universities Act, 1973 (hereinafter referred to as '1973 Act') and is affiliated with Chhatrapati Sahuji Maharaj University, Kanpur (hereinafter referred to as 'the University'). Dr. Dipti Tripathi holding the office of the Principal of College expired on 17.11.2000 causing a substantive vacancy on the said post. The Management allowed the petitioner to discharge duties of the Principal pursuant whereto the petitioner took over charge on 20.11.2002 and his functioning as Principal of the College was approved by the Vice-Chancellor of the University vide order dated 2.12.2002. The petitioner, thereafter claimed salary on the post of Principal contending that he is discharging duties of the Post in officiating capacity as permitted under Statute 13.20 of the First Statute of the University and, therefore should be paid salary of the said post. His representation claiming salary on the post of Principal, however, has been rejected by the Director vide order impugned in the writ petition. Learned counsel for the petitioner vehemently contended that the term "Teacher" has been defined under Section 2 (19) of 1973 Act, which includes Principal. Statute 13.20 of the First Statute of University entitles the senior-most teacher to officiate as Principal as and when vacancy on the said post exists. Further, the responsibility of payment of salary in respect to an aided institution lies upon the State Government under Section 60-E of 1973 Act and since the petitioner is continuously discharging his duties as Principal, in view of the law laid down in Pushkar Singh Verma v. District Inspector of Schools, Meerut and another, 1999 (3) AWC 2622, he is entitled for payment of salary for the post of Principal. He also placed reliance on a judgment of this Court dated 12.3.2004 passed in Writ Petition No. 10022 of 2004, Dr. (Smt.) Vijay Srivastava v. State of U. P. and others.
(3.) WE have considered the aforesaid submission and have perused the record including the relevant statute and various authorities cited by the learned counsel for the petitioner. It is not disputed that initially the matter of appointment of "teacher" in the College was governed by 1973 Act and Statutes framed thereunder. Section 31 of 1973 Act deals with the procedure of making appointment of teachers including Principal of a College. However, U. P. Legislature enacted U. P. Higher Education Service Commission Act, 1980 (hereinafter referred to as '1980 Act') with an object to establish Service Commission for selection of teachers for appointment in the Colleges affiliated or recognized by the University. 1980 Act has been given overriding effect over the existing law to the extent it is inconsistent to 1980 Act. Section 12 of 1980 Act as substituted by U. P. Act No. 2 of 1992 with effect of 22.11.1992 provides for procedure of appointment of teachers and reads as under : "12. Procedure for appointment of teachers.-(1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void. (2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as may be prescribed. Explanation.-The expression "academic year" means the period of 12 months commencing on July 1. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed subject-wise consolidated list of vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulations : Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3) : Provided further that the candidates shall be required to indicate their order of preference for the various colleges vacancies wherein have been advertised.";