1 Writ petition no. 50563 of 2009 Vachaspati Sharma V. UP Secondary Education Services Selection Board and others Hon'ble Sudhir Agarwal, J.
1. Heard Sri Prakash Padia, learned counsel for the petitioner
and learned Standing Counsel for respondents no. 2 and 3, Sri H.P.
Singh for respondent no.1 and Sri R.R. Singh for respondent no.7.
2. The grievance of the petitioner is that for selection to the post
of Principal in the institution Adarsh Uchchtar Madhyamik Vidyalaya,
Rishi Ashram Alhadpur, Aligarh (hereinafter referred to as “the
institution”) though he is officiating as Principal since 1.7.2006, he
was not called though under the statute two seniormost teachers of
the institution had to be called for direct recruitment for the post of
Principal.
3. However, from the counter affidavit filed on behalf of
respondent no.4 it is evident that the post of Principal was occupied
by one Shiv Charan Lal Saraswat who retired on 30.6.2006. Sri
Mahavir Prasad Sharma was the seniormost teacher in the
institution who refused to officiate as Principal and thereafter there
were two other teachers at seniority at serial no.2 and 3, i.e., Hari
Shankar Sharma and Mohan Chand Sharma but the petitioner who
was at serial no.4 was appointed as officiating Principal by the
management. Be that as it may, the fact remains that in the seniority
list of teachers the petitioner was at serial no.4 and not the
seniormost teacher.
4. Merely because he was allowed to officiate as Principal of the
college till regular selection is made by the Commission, it would not
confer any higher seniority upon the petitioner qua the teachers who
were senior to him but did not officiate as Principal inasmuch as, the
officiating appointment does not confer any right either to hold the
post or to claim higher seniority over the teachers who are
substantively appointed since for the purpose of seniority, it is the
substantive appointment on the post which is relevant and not the
2
officiating appointment.
5. Besides, even no letter of appointment of the petitioner as
officiating Principal has been placed on record. However, reliance
has been placed on Annexure 2 to the writ petition which shows that
it is only attestation of petitioner’s signature as officiating Principal of
the institution. The substantively appointed Principal having retired
on 30.6.2006, the signatures of the petitioner were attested on
3.7.2006. It is thus evident that even officiating appointment of the
petitioner was not made by the respondent institution in accordance
with the provisions of Section 18 of the U.P Secondary Education
Services Selection Board Act, 1982 (hereinafter referred to as “1982
Act”).
6. Discharge of duties of the post is distinct than the appointment
on the post. This aspect has been considered in detail by a Division
Bench of this Court (in which I was also a Member) in Smt. Vijay
Rani Vs. Regional Inspectress of Girls Schools Region- I,
Meerut & others 2007 (2)ESC 987 where this Court held as under:
“……………..The aforesaid documents cemented the
conclusion that the Petitioner-Appellant was only
required to look after and discharge the duties of the
officiating Principal but was never promoted/appointed
on the said post. In other words, it can be said that the
Petitioner-Appellant was given only current duty charge
in addition to her substantive post and this arrangement
did not result in promotion to the post of which, the
current duty charge was handed over. In State of
Haryana Vs. S.M. Sharma AIR 1993 SC 2273, the Chief
Administrator of the Board entrusted Sri S.M. Sharma,
with the current duty charge of the post of Executive
Engineer, which was subsequently withdrawn as a result
of his transfer to other post. He challenged the said
order stating that it amounts to reversion. The Apex
Court held that Sri Sharma was only having current duty
charge of the Executive Engineer and was never
promoted or appointed to the aforesaid post and
therefore, on transfer to some other post, it did not result
in reversion from the post of Executive Engineer.
A somewhat similar situation occurred in
Ramakant Shripad Sinai Advalpalkar Vs. Union of
3India and others, 1991 Supple (2) SCC 733 and the
Apex Court observed as under:-
“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.”
It was further held that such situations are
contemplated where exigencies of public service
necessitate such arrangements and even consideration
of seniority do not enter into it sometimes. However the
person continues to hold substantive lower post and only
discharges duties of the higher post essentially as a
spot-gap arrangement. A further contention was raised
that if such an arrangement continued for a very long
period it would give some kind of right to continue on the
post but negativing such contention, it was held that an
in-charge arrangement is neither recognition nor is
necessarily based on seniority and therefore, no rights,
equities and expectations can be built upon it.
In this view of the matter, the Petitioner-Appellant
has miserably failed to show that the management ever
appointed her as officiating Principal of the College and,
therefore, we hold that she was only allowed to
discharge duties of the office of officiating Principal, but
was never appointed/promoted by the management as
officiating Principal of the College.”7. In view of the law laid down as above in Smt. Vijay Rani
(supra), the petitioner’s claim for seniority over other senior
teachers of the Institution on the ground of his discharge of duties as
Officiating Principal, is not acceptable.8. Sri A.K. Yadav, appearing for the Selection Board further
points out that the selection in question was held for the year 1999-
2000 and in view of the law laid down in Balbir Kaur Vs. U.P.
Secondary Education Service Selection Board and others
(2008) 3 UPLBEC 2376, the persons who were eligible and had
applied for selection at the relevant time were only entitled for
interview and not those who were appointed subsequently. The
petitioner thus even otherwise has no locus standi to challenge the
4impugned selection which is with respect to 1999-2000. This fact
could not be disputed by Sri Padia. However, he submits that actual
interview took place in 2009 and the petitioner ought to have been
called for interview. I find no substance in this submission. Since the
petitioner was not eligible and was not within the zone of
consideration in respect of selection in question, there is no question
of his consideration in this selection.9. I find no merit in this petition.
10. Dismissed.
Dated. 25.1.2010
Akn.