Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 632 (ALL)

Shanti Devi v. State of U. P.

2013-02-22

DEVENDRA KUMAR UPADHYAYA

body2013
JUDGMENT Devendra Kumar Upadhyaya,J. With the consent of learned counsels appearing for the parties, both the aforesaid writ petitions are being decided finally by this common judgment and order as the subject matter of the petitions are intertwined. 2. Heard Sri Jagdish Prasad Maurya, learned counsel appearing for the petitioner-Smt. Shanti Devi and Smt. Kirti Srivastava, learned Standing Counsel appearing for the opposite parties. 3. The facts of the case which are not in dispute are that the petitioner's husband, namely, Ram Deo Srivastava while working as Assistant Teacher in Public Inter College, Gola Gokaran Nath, District Lakhimpur Kheri, an institution recognized under U.P. Intermediate Education Act, 1921 and funded under grant-in-aid scheme of the State Government, had died and on account of his death petitioner was given appointment on compassionate ground against a Class-IV post in the said institution in the year 1967-68. The petitioner continued to work on the said post till 30.06.2001 and thereafter she retired. 4. On account of non-payment of post retiral dues, petitioner filed the Writ Petition bearing No.1700 (S/S) of 2003 wherein an order was passed by the Hon'ble Single Judge of this Court on 26.03.2003, directing the competent authority to decide the representation made by the petitioner relating to her grievance. Accordingly, in compliance of the aforesaid order dated 26.03.2003, the District Inspector of Schools, Lakhimpur Kheri decided the representation of the petitioner by means of the order dated 17.08.2003 whereby the claim of the petitioner for grant of post retiral dues, as she desires, was rejected treating her to have retired on the basis of date of birth as 16.09.1940 and it was provided by the District Inspector of Schools in the said order dated 17.08.2003 that the petitioner shall be paid the post retiral dues treating her date of birth to be 16.09.1933. 5. Challenging the aforesaid order dated 17.08.2003 passed by the District Inspector of Schools on the representation made by the petitioner, Writ Petition No.507 (S/S) of 2004 has been preferred by the petitioner. 6. Learned counsel for the petitioner has vehemently submitted that during the entire service period, the alleged discrepancy in recording the date of birth of the petitioner was never communicated to her, nor was it ever noticed or noted by any authority either in the Institution or in the office of District Inspector of Schools. 6. Learned counsel for the petitioner has vehemently submitted that during the entire service period, the alleged discrepancy in recording the date of birth of the petitioner was never communicated to her, nor was it ever noticed or noted by any authority either in the Institution or in the office of District Inspector of Schools. He has further stated that she was duly and lawfully retired on 30.06.2001 treating her date of birth to be 16.09.1940. Further, that her date of birth was rightly recorded as 16.09.1940 and accordingly, on her attaining the age of superannuation of 60 years on 16.09.2000, she was retired on 30.06.2001 giving her the benefit of extension of service till the end of academic session, which ended in the instant case on 30.06.2001. He has also stated that while deciding the representation of the petitioner in regard to her claim for grant of post retiral benefits, if the District Inspector of Schools had found any discrepancy in recording of her date of birth in the service book, it was incumbent on his part to have given her an opportunity of hearing before finally determining that her date of birth is 16.09.1933. The order, thus, is bad for want of observance of the principles of nature justice. 7. Substantiating her claim, learned counsel for the petitioner has also drawn attention of the Court on the mark-sheet of Class-VIII, wherein date of birth of the petitioner is recorded as 16.09.1940. 8. It is noticeable that the said mark-sheet has been issued by the Secretary of District Level Junior High School Examination Committee. He has also stated that at the relevant point of time when the petitioner appeared in her Class-VIII-Junior High School Examination in the year 1968, the examination in all the junior high schools in the district used to be a centralized examination conducted by the district level state authorities of the education department, hence the date of birth recorded in the mark-sheet, which has been annexed as Annexure No. 4-A to the writ petition, issued by the Secretary of the District Level Junior High School Examination Committee cannot be doubted. He has further stated that at that time if the petitioner was given an opportunity, she could have explained as to why her date of birth is 16.09.1940 and not 16.09.1933. 9. He has further stated that at that time if the petitioner was given an opportunity, she could have explained as to why her date of birth is 16.09.1940 and not 16.09.1933. 9. Learned counsel for the petitioner has not, however, been able to controvert the observations made by the District Inspector of Schools that facility of commutation of pension and leave encashment is not available to the staff retired from non-government aided intermediate institutions. 10. Learned counsel for petitioner has, however, emphasized that the order passed by the District Inspector of Schools directing to recover from the petitioner the alleged excess amount paid towards salary during seven years is absolutely unlawful. The District Inspector of Schools by means of impugned order has directed the petitioner to return back an amount of Rs. 2,74,543.20/- which is the amount paid to the petitioner during the seven years period for which she is alleged to have overstayed after she allegedly attained the age of superannuation as an employee in the institution. 11. Learned counsel for the petitioner has placed heavy reliance on a judgement of the Apex Court in the case of Kailash Singh vs. State of Bihar and others; reported in [(2005)AIR SCW 3273], wherein it has been held that if the work from an employee was taken for any period and there is no dispute about the same, he/she would obviously be entitled to his/her salary. 12. Sri Maurya also placed reliance on yet another judgement rendered by Hon'ble Single Judge of this Court in the case of Sabhapati Singh vs. State of U.P. and others in Writ Petition No. 3482 (S/S) of 2006, which is based on the law laid down by Hon'ble Supreme Court in the case of Kailash Singh (supra). 13. On the other hand, learned Standing Counsel appearing for the State has tried to defend the impugned order dated 17.08.2003 passed by the District Inspector of Schools, stating that the order is based on the report sent by the Principal of the Institution wherein it has been stated that the service book of the petitioner was prepared during the term of the earlier Principal wherein the petitioner is shown to be Class VII passed and the date of birth as shown was 16.09.1933. The said report, according to the impugned order, also says that when the Principal demanded the Transfer Certificate of Class VII passed, the petitioner submitted the mark-sheet of Class VIII failed wherein her date of birth is recorded as 16.09.1940. 14. Learned Standing Counsel has vehemently argued that the aforesaid alteration in the date of birth renders the petitioner dis-entitled to be paid the salary of the excess period of seven years and further that she will not be entitled to the benefit of the period of seven years to be counted for the purposes of grant of post-retiral dues. Heavily relying on the judgement of the Apex Court in the case Chandi Prasad Uniyal and others vs. State of Uttarakhand and others; reported in [( 2012 8 SCC 417 ], learned counsel for the State has submitted that if excess money has been paid without any authority of law then such amount paid/received without authority of law can always be ordered to be recovered barring few exceptions of extreme hardship. 15. I have considered the arguments advanced by learned counsels appearing for the respective parties and have also perused the material available on record. 16. The issue which needs to be answered by this Court in the instant case is as to whether in the given facts and circumstances of the case, the order of recovery of an amount of Rs. Rs. 2,74,543.20/- could have been passed or not. 17. Admittedly, the aforesaid amount of Rs. 2,74,543.20/- was paid to the petitioner for the period for which she was allowed to discharge her duties. It is not the case of the respondents that during this period the petitioner did not discharge her duties; rather it has been admitted that she worked in the institution and accordingly discharged her duties. It is noticeable that the petitioner worked in an institution which was/is, admittedly, under the grant-in-aid scheme and salary etc. to the teachers and other employees including the petitioner was/is being paid under the statutory provisions contained in Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as the 'Payment of Salaries Act'). to the teachers and other employees including the petitioner was/is being paid under the statutory provisions contained in Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as the 'Payment of Salaries Act'). According to the scheme of aforesaid Payment of Salaries Act, 1971, the salary of the teachers and other employees of an institution is paid by transfer of amount from the State Government Accounts to the bank account to be opened for the purpose of disbursement of salary by the management of institution. The said procedure for payment of salary is completed under active and authoritative supervision of District Inspector of Schools of the employees in his office. It is strange to notice that the District Inspector of Schools or for that matter any other authority in his office or that of the institution did not notice the alleged discrepancy in recording the date of birth of the petitioner during the period she served in the institution and even during the period she was allegedly overstayed working in the institution. The alleged discrepancy, if existed, could have been very well noticed by the authorities during all these years; rather it was allegedly noticed only in the year 2003, i.e., almost two years after retirement of the petitioner from service, that too, only once this Court directed the District Inspector of Schools to decide her representation in regard to her grievance relating to non-payment of the post-retiral dues. Further, the Court finds that there is no reason why the date of birth recorded as 16.09.1940 in Class VIII mark-sheet issued by the Secretary of the District Level Junior High School Examination Committee pertaining to the District Junior High School Examination 1968, Lakhimpur Kheri be not taken to be correct. The said District Level Junior High School Examination used to be conducted by a body constituted for the said purposes comprising of the Government Officers of the education department and can be given credence and requisite authenticity as compared to the transfer certificate issued by some private institution. 18. It is also noticeable that before passing the impugned order holding that the date of birth of the petitioner is 16.09.1933 and not 16.09.1940, no opportunity of hearing was provided to her. 18. It is also noticeable that before passing the impugned order holding that the date of birth of the petitioner is 16.09.1933 and not 16.09.1940, no opportunity of hearing was provided to her. The mark-sheet issued by the Secretary, District Junior High Schools Examination Committee which has been annexed as annexure 4-A was very well available before the District Inspector of Schools which was enclosed by the Principal of the institution in his report submitted to him. The said fact clearly finds mentioned in the order dated 17.08.2003. The District Inspector of Schools has, however, not given any reason as to why the said mark-sheet and the date of birth recorded therein could be discarded by him. 19. In view of the aforesaid, the Court comes to the definite conclusion that the reasons indicated by the District Inspector of Schools in the impugned order to hold that the date of birth of the petitioner 16.09.1933 are not based on correct assessment of the material available before him and hence not tenable. As regards the direction contained in the impugned order dated 17.08.2003 regarding recovery of amount of Rs. 2,74,543.20/-, it would suffice to say that in view of the decision of the apex court in the case of Kailash Singh (supra), if an employee has worked on the post with bonafide intention and has discharged duties, the employer cannot be permitted to pass an order for recovery of the said amount. In the instant case, admittedly, the salary of the petitioner was paid on the basis of bills which were prepared by the college management duly signed and approved on monthly basis by a Senior Accounts Officer in the office of District Inspector of Schools. Thus, the alleged excess payment has not resulted on account of any malafide or misrepresentation by the petitioner. Since the petitioner has worked and discharged her duties and it is only in these circumstances that she has been paid the salary for the period in question, it cannot be said that payment was made without any authority. 20. Yet another significant aspect of the matter is worth noticing in this case. While passing or approving the bills they were all scrutinized by the Accounts Officer in the office of District Inspector of Schools and under his direct supervision. 20. Yet another significant aspect of the matter is worth noticing in this case. While passing or approving the bills they were all scrutinized by the Accounts Officer in the office of District Inspector of Schools and under his direct supervision. Moreover, there is enough material on record to conclude that the DIOS in the impugned order has wrongly concluded that petitioner's date of birth was 16.09.1933 instead of 16.09.1940. Thus, the payment made to the petitioner for the alleged excess amount cannot be said to be without any authority. In the peculiar facts and circumstances of the case, thus, the dictum of the Apex Court as promulgated in the case of Chandi Prasad Uniyal and others (supra) does not come to the rescue of the opposite parties so as to protect the impugned order dated 17.08.2003 passed by the District Inspector of School. 21. For the reasons disclosed and discussions made above, the writ petitions deserve to be allowed. Accordingly the petitions are allowed and the impugned order dated 17.08.2003, as contained in annexure no. 4 to the writ petition No. 507 (S/S) of 2008 is hereby quashed. 22. The petitioner shall be entitled for all consequential benefits of post retiral dues treating her date of birth as 16.09.1940. However, as agreed by learned counsel for the petitioner, the petitioner will not be entitled to the benefit of commutation of pension and leave encashment. The payment of post-retiral dues to the petitioner, in terms of the observations made hereinabove, shall be made within a period of three months from the date a certified copy of this order is produced before the authority concerned. 23. With the aforesaid observations and directions, the writ petitions are allowed to the above extent. 24. There will be no order as to cost.