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2010 DIGILAW 2501 (ALL)

SUDHA VIJAY v. STATE OF U. P.

2010-08-17

ARUN TANDON

body2010
JUDGMENT Hon’ble Arun Tandon, J.—Despite notice being issued to respondent No. 5, neither any counter affidavit has been filed nor anybody is present on behalf of the said respondent. 2. The petition is of the year 1989. 3. Facts in short leading to the filing of the present petition are as follows : Petitioner before this Court was appointed as L.T. Grade teacher in Uchchatar Madhyamik Balika Vidyalaya, Kayamganj, District Farrukhabad in the year 1974, initially against a leave vacancy which stood converted into substantive vacancy in the year 1975. It is stated that the services of the petitioner were regularized under the orders of the Regional Inspectress of Girls Schools dated 7.7.1977. 4. The Committee of Management filed a Civil Suit being Civil Suit No. 163 of 1978 challenging the order of regularization dated 7.7.1997. The suit was dismissed by the Trial Court vide order dated 13.4.1981. 5. Not being satisfied the Committee of Management filed Civil Appeal No. 98 of 1981 which was allowed on 19.8.1993 and was held that the order of Regional Inspectress of Girls Schools was invalid. The petitioner filed Second Appeal before the Hon’ble High Court being Second Appeal No. 3226 of 1983. The Appeal has been allowed by this Court on 9.3.1988. In terms of the order of the Hon’ble High Court, the petitioner is stated to have been restored back as Assistant Teacher on 20.5.1988 and is continuously working as such. 6. The petitioner made an application for payment of monetary benefits as detailed in paragraph 5 of the rejoinder affidavit which is being reproduced herein below : “5. (i) No payment has been made to the petitioner for a period of 20 days in the month of September, 1977. (ii) The payment of salary for the period May, 1981 to July, 1983 was paid only at the rate of half of the monthly salary. Accordingly, remaining half monthly salary of the period for the period May, 1981 to July, 1983 continues to be withheld. (iii) No payment of salary has been made to the petitioner for the period August, 1983 to May, 1988. (iv) No payment of salary has been made to the petitioner for the period 16.5.1988 to 10.11.1989. (v) No payment of salary has been made to the petitioner for the period 11.11.1989 to May, 1992 on the post of Principal of the institution. (iv) No payment of salary has been made to the petitioner for the period 16.5.1988 to 10.11.1989. (v) No payment of salary has been made to the petitioner for the period 11.11.1989 to May, 1992 on the post of Principal of the institution. (vi) The Additional Dearness Allowance payable during the period December 1978 to May, 1979 has not been disbursed to the petitioner.” It is in respect of these monetary benefits that the present writ petition has been filed which is hanging consideration for last 21 years. 7. The period represented above under Item No. (i) the period when the petitioner claims to have actually worked but the payment has not been made. 8. The payment claimed in respect of Item No. (ii) is for the period when an interim order was granted by the First Appellate Court during the pendency of the first appeal. 9. So far as the payment claimed qua Item No. (iii) is concerned, it is stated that during this period the petitioner was kept out of employment because of the judgment of the first appellate Court which was made in favour of the management. Since the second appeal has been allowed, the judgment of the first appellate Court has merged in the order of the second appellate Court and, therefore, the petitioner is entitled for monetary benefits for the period he was kept out of employment. 10. So far as the payment claimed qua Item No. (iv) is concerned, it is stated that the petitioner even after the judgment and decree passed, was not permitted to join and, therefore, he is entitled to full salary for the said period also. 11. So far as the payment claimed qua Item No. (v) is concerned, this Court is not required to examine the issue inasmuch as it is outside the scope of the relief prayed in the writ petition. Item No. (vi) pertains to payment of dearness allowance for the period covered during which the petitioner had been paid his salary from the State exchequer. Item No. (vii) pertains to revision of salary effected from time to time for the same period. 12. I have heard learned counsel for the parties and have gone through the records of the present writ petition. 13. Item No. (vii) pertains to revision of salary effected from time to time for the same period. 12. I have heard learned counsel for the parties and have gone through the records of the present writ petition. 13. So far as Item No. 2 is concerned, this Court may record that since the petitioner was paid only half of the salary from the State exchequer and further that the order of the First Appellate Court which has merged in the High Court’s order passed in Second Appeal, the petitioner automatically becomes entitled for full salary. Consequently, let the State ensure payment of full salary to the petitioner for the period May, 1981 to July, 1983 with all consequential benefits within two months from the date a certified copy of this order is filed before the District Inspector of Schools concerned. 14. So far as the Item Nos. 1, 3 and 4 are concerned, this Court may record that the petitioner has not actually worked in the institution because of action/inaction on the part of the management of the institution. Liability of the State to make payment to the teacher under U.P. Act No. 24 of 1971 arises only if the teacher has actually discharged his/her duties in the institution and if the management of the institution had restrained a teacher from working (for whatever reasons it may be), the liability would fall upon the management alone inasmuch as the State cannot be asked to bear the consequences of an illegal action of the management of not permitting the teacher concerned to work. The person creating such a situation must also face the music after the illegal action is set aside by the Court of law. In such circumstances, let the respondent No. 1 determine the amount payable to the petitioner for the aforesaid period after affording opportunity of hearing to the Committee of Management and to recover the said amount from the management itself and to make payment to the petitioner. The aforesaid exercise may be completed within two months from the date a certified copy of this order is filed before the respondent No. 1. 15. So far as the Item Nos. The aforesaid exercise may be completed within two months from the date a certified copy of this order is filed before the respondent No. 1. 15. So far as the Item Nos. 6 and 7 are concerned, the petitioner may represent her grievance before the District Inspector of Schools who shall take appropriate action strictly in accordance with law preferably within two months from the date a certified copy of this order is filed before him. 16. Writ petition is disposed of. —————