Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 672 (ALL)

KEDAR NATH MAURYA v. STATE OF U. P.

2013-02-28

B.AMIT STHALEKAR

body2013
JUDGMENT Hon’ble B. Amit Sthalekar, J.—In this writ petition, the petitioner is challenging the order dated 26.8.2002, passed by the D.I.O.S. fixing the pay scale of the petitioner as Assistant Teacher L.T. Grade w.e.f. 13.1.1999 instead of 9.7.1973. 2. The case of the petitioner is that he was appointed as Assistant Teacher in the Junior High School on 9.7.1973. The Institution was upgraded as Higher Secondary School and it was brought on the grant-in-aid list as High School on 1.4.1991. On 19.5.1979 the services of the petitioner were terminated against which he preferred an appeal which was allowed by the order dated 3.11.1982 filed as Annexure-6 to the writ petition. However, he was reinstated in service on 8.7.1999 filed as Annexure-9 to the writ petition. 3. I have heard Sri Anil Pandey, learned counsel for the petitioner and the learned Standing Counsel representing respondents 1, 2 and 3. List has been revised. None appears for respondent No. 4, even though an affidavit of service has been filed by the learned counsel for the petitioner in respect of respondent No. 4. 4. It appears from the records that the petitioner was appointed as Assistant Teacher in the Junior High School on 9.7.1973. The Institution was upgraded as a Higher Secondary School and was brought on grant-in-aid list as High School 1.4.1991. The services of the petitioners were terminated on 19.5.1979 against which he preferred an appeal which was allowed by order dated 3.11.1982 filed as Annexure-6 to the writ petition. However, the petitioner was reinstated in service by the order dated 8.7.1999 Annexure-9 to the writ petition. Based on these facts the pay fixation of the petitioner has been made w.e.f. 13.1.1999 as Assistant Teacher L.T. Grade. 5. From a perusal of the counter-affidavit it will be seen that while the facts stated in the writ petition have not been disputed, the learned Standing Counsel submits that when the Institution was brought on grant-in-aid list the name of the petitioner was not shown in the Management Roll and therefore, the liability for payment of salary of the petitioner for the period for which he was out of service till his reinstatement cannot be fastened upon the State Government. There is no dispute between the parties that the Institution was brought on grant-in-aid list as High School on 1.4.1991 but the learned counsel for the petitioner submits that although the petitioner’s appeal was allowed w.e.f. 3.11.1982 by the Secretary U.P. Shiksha Parishad, Allahabad he was at least entitled for fixation of his pay scale from May, 1979, when the Institution was brought on the grant-in-aid list as Junior High School. He further submitted that he ought to have been reinstated immediately w.e.f. 3.11.1982 and also paid salary for the period he was kept out of service from 3.11.1982 to 13.1.1999. 6. The learned Standing Counsel further pointed out that against the order dated 3.11.1982 allowing the appeal of the petitioner the Committee of Management had filed a writ petition which was dismissed for non-prosecution by order dated 29.1.1999 and thus the appellate Authority order dated 3.11.1982 had become final. 7. So far as the objection of the learned Standing Counsel is concerned, there is substance in the same that if the appeal of the petitioner had been allowed by the Secretary Basic Shiksha Parishad, Allahabad by order dated 3.11.1982 and the petitioner was reinstated in service w.e.f. 13.1.1999 then the liability for payment of salary for the period for which the petitioner has been kept out of service will fall upon the Committee of Management on account of whose lapse the petitioner was kept out of service and not upon the State Government. This is not disputed by the learned counsel for the petitioner either. In the circumstances the writ petition is allowed. 8. The impugned order dated 26.8.2002 is quashed and a direction is issued to the D.I.O.S., Sant Kabir Nagar, respondent No. 3 to re-fix the salary of the petitioner w.e.f. May 1979 as Assistant Teacher in the Junior High School and as L.T. Grade Assistant Teacher in the High School w.e.f. 1.4.1991. However, the period for which the petitioner has been kept out of service from 3.11.1982 upto 13.1.1999, he will be entitled to arrears of salary which shall be paid by the State respondents within a period of two months from the date a certified copy of this order is served on the respondent No. 3. 9. However, the period for which the petitioner has been kept out of service from 3.11.1982 upto 13.1.1999, he will be entitled to arrears of salary which shall be paid by the State respondents within a period of two months from the date a certified copy of this order is served on the respondent No. 3. 9. However, under Section 10 of the U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 (hereinafter referred to as the Act, 1978) although the liability for payment of salary of teachers and employees has been laid at the door of the State Government Section 10(2) provides that if any liability has been incurred by the State Government under sub-section (1) in respect of any amount, the said amount shall be recovered by the State Government by attachment of the income from the property belonging to or vested in the Institution in the same manner as recovery of arrears of land revenue due from the Institution. Section 10(2) of the Act, 1978 reads as under: “10. Liability in respect of salary.—(1) .................. (2) The State Government may recover any amount in respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were in arrear of land revenue due from the institution.” Likewise the Section 10 of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971 (hereinafter referred to as the Act, 1971) also fastens the responsibility for payment of salary of teachers and employees of every institution due in respect of any period after 31.3.1971 upon the State Government. Sub-section (2) of Section 10 which is pari materia with Section 10 (2) of the Act, 1971. Section 10 of the Act, 1971 reads as under: “10. Liability in respect of salary.—(1) The State Government shall be liable for payment of salaries of teachers and employees of every institution due in respect of any period after March 31, 1971. (2) The State Government may recover any amount in respect of which any liability is incurred by its under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution. (2) The State Government may recover any amount in respect of which any liability is incurred by its under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution. (3) Nothing in this Section shall be deemed to derogate from the liability of the institution for any such dues to the teacher or employee.” In the circumstances, the State Government shall therefore, in exercise of powers under Section 10 (2) of the Act, 1971 recover any amount paid by way of arrear of salary etc. to the petitioner from the respondent No. 4 for the period from 3.11.1982 to 13.1.1999 within a period of 6 months from the date of passing of this order. ——————