BRAHMA PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the petitioner Shri N.N. Jaiswal and learned standing counsel Shri Manjeev Shukla for the respondents. The short question for consideration in this writ petition is whether, the petitioner who was appointed as Assistant Teacher in a primary school, aided and governed by the Social Welfare Department, when asked and then continued to officiate as Head Master, would be entitled to the salary as admissible to the Head Master upon such officiation, specially when the applicable Rules do not provide for promotion of an Assistant Teacher to the post of Head Master? Brief facts are, that the petitioner was initially appointed vide order dated 09.08.1973 by the District Social Welfare Officer in an institution called Primary Pathshala, Shahibganj, District Kheri on the post of Assistant Teacher. The institution is said to be governed by the U.P. recognized Basic School (Recruitment and Condition of Service of Teachers and other Conditions) Rules, 1975. It is a recognized institution and the provisions of the U.P. Basic Education Act, 1972 are also applicable. It has been argued that the petitioner was initially appointed on a fixed salary of Rs. 100/- p.m. in the said institution and has continued as such till 30.06.1993 when vacancy arose on the post of Head Master due to retirement of regular Head Master Shri Mathura Prasad. The petitioner being the senior- most in the institution was asked to officiate on the said post. According to the counsel for the petitioner, the petitioner has been working/officiating as Head Master of the aforesaid Primary Pathshala since 1993. It is submitted that the authorities themselves have been treating the petitioner to be the Head Master of the institution. To establish this fact several communications by the authorities have been filed wherein the petitioner has been shown to be the Headmaster of the institution. According to the petitioner there is no dispute that he is officiating as Head Master of the institution and the authorities have also treated him to be the same, therefore, he is entitled for the salary applicable to the post of Head Master as he is performing the functions and duties of the Head Master. Upon question being posed to the learned counsel for the petitioner regarding the provisions for promotion of an Assistant Teacher in a Primary Institution to the post of Head Master, Shri Jaiswal very fairly conceded that there is no provisions for granting promotion of an Assistant Teacher to the post of Head Master although a prayer is made in writ petition to direct State Government to frame Rules in this behalf. My attention has been drawn to U.P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975. Rule 1 provides the name of the Rule and applicability thereof, Rule 2 provides definition. Rule 2(b) and 2(e) are reproduced hereinunder.- 2 (b) "Junior Basic School" means an institution other than High Schools or Intermediate Colleges imparting education upto the V class. 2 (e): "Recognised School" means any Junior Basic School, not being an institution belonging to or wholly maintained by the Board or any local body, recognised by the Board before the commencement of these rules for imparting education from class I to V. Rule 3 provides that these Rules will be applicable to every recognized schools, Rule 4 and 5 provide for financial resources which are quoted herein below: 4. Financial resources: In every recognised school, adequate financial resources shall be made available by the management of such schools for its efficient working and adequate facilities shall be provided in accordance with such standard as may be specified by the Board for teaching the subjects in respect of which such school is recognized. 5.Building and equipment.- In every recognized school, arrangements shall be made for such buildings, lavatories, playgrounds and equipments as are in accordance with the specifications specified by the Board and for the construction of well-ventilated and clean buildings in hygienic surroundings. Rule 9 provides for appointment of Teachers.- 9.Appointment of Teachers.- No person shall be appointed as teacher or other employee in any recognized school unless he possesses such qualifications as are specified in this behalf by the Board and for whose appointment the previous approval of the Basic Shiksha Adhikari has been obtained in writing. In case of vacancy, the applications for appointment shall be invited by the concerned management through advertisement in at least two newspapers (one of them will be a daily newspaper), giving at least thirty days' time for submitting application. The date of interview may be given in the advertisement or the candidates be informed of the date fixed for interview by registered post, giving them at least 15 days' time, from the date of issue of the letter. The management shall not select any untrained teacher and if the selected candidate is a trained one, he will be approved by the Basic Shiksha Adhikari. Rule 10 provides for salary of teachers. Rule 11, provides for dismissal and removal of teachers. Rule 12, provides for appeal against the order of the District Basic Education Officer passed under Rule 11. Rule 13, imposes condition of recognition and Rule 14 gives power to the Board to withdraw the recognition. In the aforesaid Rules the method of appointment or promotion to the post of Head Master in conspicuously absent. The only mode of employment in such institutions is through direct recruitment as provided in Rule 9. According to learned standing counsel the Head Master is included within the term of Teacher. The word Teacher or Head Master has not been defined in these Rules nor does Basic Education Act, 1972 defines them. However the Rules known as U.P. Basic Education (Teachers) Service Rules, 1981 which are applicable to the institution maintained by the Board, defines the word Teacher in Rule 2 (o) which is reproduced below.- 2 (o).- "Teacher" means a person employed for imparting instructions in Nursery Schools, Basic Schools, Junior Basic Schools, or Senior Basic Schools. So far as the payment of salary etc. is concerned to the Teachers of the Junior High School either established or governed by the Board or aided by the Government, is regulated by the Rules known as U.P. Junior High School (Payment of Salaries of Teachers and other employees) Act, 1978. Rule 2(h) of these Rules defines Teacher, to mean Head Master also. Since there is no definition of Teacher or Head Master in the concerned Rules of 1975 or the Act, aid can be taken from the aforesaid 1978 Rules to say that the Teacher includes the Head Master of a Primary School governed under the Provisions of 1975 Rules. Learned standing counsel empathetically argued that there is no provision for promotion from the post of Assistant Teacher to the post of Head Master in the institution and the appointment of Head Master is only through direct recruitment as such the petitioner being asked to officiate on the post of Head Master will not entitle him for salary of Head Master in absence of such a provision. According to him in the natural course of events the petitioner could never be legally promoted as the Head Master and, therefore, could not have received the salary of Head Master in law and in such a situation what he cannot get legally, cannot be given to him in any other manner and providing the same would be violative of the Rules. On the other hand Shri Jaiswal has forcefully urged that when the work of Head Master is taken from the petitioner, and by annexing various documents he has also tried to show that the authorities themselves have treated the petitioner to be the Head Master of the institution, and there is also no dispute that the petitioner has functioned as Head Master, he is entitled for the salary of the Head Master. Shri Jaiswal has placed reliance on various decisions of this Court as well as of Hon'ble Supreme Court in furtherance of his contention that if a person has been asked to officiate on a particular post he is entitled for salary of that post. Reliance has been placed in the case of Secretary-cum-Chief Engineer Vs. Hari Om Sharma and others reported in 1998 (5) SCC 87, wherein the dispute was regarding regular promotion of Junior Engineer-I from the post of Junior Engineer. The respondent in that case was though promoted to the post of Junior Engineer-I but not on regular basis nor was he paid salary. The matter was settled by the Supreme Court that respondent was entitled to promotion and, therefore, entitled to salary also even though the appointment was in a stop-gap arrangement. In a case of Dr. Govind Singh Niranjan versus District Inspector of Schools, Jalaun and others reported in 1997 ALJ 172, it was held that the statute 12.20 of the University provided that in a degree college till regular selection is made of a Principal, the senior most teacher shall officiate as Principal. The Rules also provided for appointment of Principal by promotion/selection of a senior most teacher in the institution. Shri Jaiswal further relied upon the judgment in the case of Mukesh Chandra versus State of U.P. and others reported in 2000 (1) AWC 221. This case does not appear to have any application in the dispute at hand as the matter was regarding regularization of an appointment made on a fixed salary for a fixed term. Now in view of the latest decision in the case of Secretary, State of Karnataka vs. Uma Devi 2006 Vol. IV SCC 1, no help can be drawn from the aforesaid citations. The petitioner has also relied upon the case of Smt. P. Grover Versus State of Haryana and another reported in 1984 UPLBEC (SC) 134. In this case on account of winning a State award for teachers two years' extension of service was provided to the petitioner who was holding the post of Principal of a Government school. The respondent for the period of extension, promoted the petitioner to the post of District Education Officer with the condition that he shall not be paid salary of that post. The Supreme Court directed that such a condition cannot be imposed if the person has been promoted to a post, he shall be entitled to the salary of that post. In the case of Kumari Madhu Chauhan versus District Inspector of Schools and others 1988 UPLBEC 397, a devision Bench of this Court held that the petitioner who was appointed by the Committee of Management on ad hoc basis prior to the expiry of three months' from the date a notification of the vacancy to the Commission, would still be entitled to the salary of the post if he has worked on that post. Shri Jaiswal has laid special emphasis upon a judgment in the case of Selvaraj versus Lt. Governor of Island, Port Blair and others reported in (1998) 4 SCC 291, wherein it was directed that the petitioner in that case when he was asked to look after the work of Secretary (Scouts) and it was further provided that the salary to be paid to the petitioner was also to be drawn against the post of Secretary (Scouts) the petitioner will only be entitled to the salary as was being paid to him in his status and capacity as that of a primary school teacher, the post that he was earlier holding. The Supreme Court held that when the petitioner was asked to officiate as Secretary (Scouts) and the salary was also to be drawn against the post of Secretary (Scouts) then there can be no justification of not paying him the salary that of the Secretary (Scouts). The aforesaid decisions was followed by a Division Bench of this Court in the case of Zafar Ali Khan Hatmi (Dr.) versus State of U.P. and others reported in (2009) 1 UPLBEC 426. In my view in all the aforesaid cited cases, facts and the ratio laid down does not squarely apply to the dispute in the present case. In all the aforesaid cases there was provision of promotion to a higher post and on being asked to officiate on the higher post it was held that the petitioner would be entitled for the salary of the higher post. The dispute in the present case is however slightly different. In the present case as has been indicated above there is no provision for promotion of an Assistant Teacher to the post of Head Master of a Junior High School which is said to be governed by U.P. recognized Basic School (Recruitment and Condition of Service of Teachers and other Conditions) Rules, 1975. Since there is no provision for promotion, therefore, an Assistant Teacher could never become Head Master of the institution then it is difficult to apprehend that how he would be entitled for the salary that of the Head Master. Learned standing counsel Shri Manjeev Shukla contends that there being no avenue of promotion to the post of Head Master and if a person asked to officiate on such a post, then the holder of the post would be entitled for officiating charge and not the salary admissible to that post. According to Shri Shukla a person will be entitled to the salary only if he is eligible for appointment on that post. According to Shri Shukla, whenever the intention of the Act is to provide salary to a person officiating on a higher post, it has been specifically provided for, as has been done in the U.P. Secondary Education Selection Board Act, 1982 and the Intermediate Education Act, 1921. In the present Act or Rules, on the contrary there is no provision, therefore, in absence of any such provision and where an Assistant Teacher cannot be promoted to the post of Head Master, the analogy of functioning on officiating basis for the purpose of claiming salary of the higher post will not be applicable. For the aforesaid contention Shri Shukla has relied upon the decision of the Hon'ble Supreme Court in the case of State of Haryana versus R.K. Aggarwal reported in (1997) 6 Supreme Court Cases 509 and Babulal Jain versus State of M.P. and others (2007) 2 Supreme Court Cases (L and S) 422, and the judgment in the case of Ramakant Shripad Sinai Advalpalkar versus Union of India and others AIR 1991 Supreme Court 1145. In the case of Ramakant Shripad (supra) the Supreme Court has held....... The arrangements contemplated by this order plainly does not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only that in service parlance is called a "charge allowance". Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement. Then again the Supreme Court in the case of Babulal Jain (supra) has held that a person transferred on deputation to a higher post carrying higher responsibilities would not be entitled to higher scale of pay in absence of any channel of promotion to that post but would be entitled to some allowance only. Similarly in the present case there being no channel of promotion to the higher post of Head Master the petitioner who was merely asked to officiate, at the most, would be entitled only for officiating charge but not the salary of that post. Same view has been taken in the case of State of Haryana Versus R.K. Aggarwal (supra) it was held that during the duty charge of a higher post, claim for salary for that post may not be admissible if there is valid reason for not granting promotion. As in the case present case also there being no channel of promotion and, therefore, the petitioner not being granted the same, can be said to be a valid reason for doing so when the law does not contemplate promotion. Before parting it is indicated that an argument was raised, though fleetingly, that the State Government be directed to frame Rules in this behalf. This prayer of the petitioner also cannot be sustained as this Court as well as Hon'ble Supreme Court have laid down in no uncertain terms that the High Court should not direct framing of Rules by the Government as has been held in the case of State of U.P. and another Versus Rajendra Prasad and others reported in (2004) 1 UPLBEC 60, para 17 and 19 whereof are quoted hereinunder. 17.We are also of the opinion that the learned Single Judge was not justified in directing the State Government to make Rules. It may be mentioned that making Rules under Article 309 of the Constitution is basically a Legislative function (though exercised by the Governor). Similarly, issuing of Government Orders is an Executive function under Article 166 of the Constitution. It is not for this Court to direct that a law which it thinks proper should be made by the concerned authority or that a Government Order should be issued. At most the Courts can make recommendations to these effect, but it cannot act as a Legislature of Executive. 19. We are of the view that the learned Single Judge gravely erred in law by directing the State Government to frame Rules as directed by him. The Governor frames rules under Article 309 of the Constitution and this Court cannot direct the Governor to frame such Rules. In Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294 (vide Para 19, it was held that the Court cannot direct amendment of the Act or Rules, as that is a legislative function. Upon the facts and in the circumstances discussed above, the claim raised by the petitioner cannot be granted, therefore, the writ petition fails and deserves to be dismissed and it is accordingly dismissed. No orders as to costs.