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2014 DIGILAW 2222 (ALL)

SHEELA SHARMA v. STATE OF U. P.

2014-07-28

P.K.S.BAGHEL

body2014
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner has laid challenge to the order passed by the District Inspector of Schools, Budaun (for short, “the DIOS”) dated 02 January 2009, whereby the petitioner’s post retiral benefits and other benefits have been withheld on the ground that a Special Appeal is pending. The said order has been passed by the DIOS on the basis of the opinion obtained by him from the District Government Counsel (Civil) [for short, “the DGC”]. 2. The essential facts are that the Chiraunji Lal Dharmpal Kanya Uchchatar Madhyamik Vidyalaya, Dataganj, Budaun (for short, “the Institution”) is a recognized and aided Institution. It receives aid up to the High School level. The provisions of the U.P. Intermediate Education Act, 1921 (U.P. Act No. II of 1921), U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (U.P. Act No. 24 of 1971) and the U.P. Secondary Education (Services Selection Boards) Act, 1982 (U.P. Act No. 5 of 1982) are applicable to the Institution. 3. The petitioner was initially appointed in the Institution when the Institution was up to the level of Junior High School. She was appointed as Assistant Teacher in C.T. grade on 01 July 1974. After the upgradation of the Institution up to the level of High School she was absorbed as an Assistant Teacher in L.T. Grade in the Institution and from 10 December 1982 she was granted ad hoc promotion as Headmistress of the High School. 4. From the record it transpire that she was subjected to the disciplinary proceeding, the Committee of Management proposed dismissal of the petitioner. The said proposal was sent to the U.P. Secondary Education Services Selection Board (for short, “the Board”) in terms of Section 21 of the U.P. Act No. 5 of 1982. The Board after affording opportunity to the petitioner and the Committee of Management modified the proposed punishment of dismissal by withholding two increments of the petitioner vide order dated 13 April 2007. 5. Aggrieved by the said order the Committee of Management preferred a Writ Petition No. 23585 of 2007. The said writ petition was dismissed by this Court vide order dated 07 June 2007. 5. Aggrieved by the said order the Committee of Management preferred a Writ Petition No. 23585 of 2007. The said writ petition was dismissed by this Court vide order dated 07 June 2007. This Court has noticed the fact that the Commission was satisfied that there were minor lapses on the part of the petitioner and as such no illegality was found in awarding punishment of withholding of two increments on permanent basis, which is also one of the prescribed punishments under the U.P. Act No. II of 1921 and U.P. Act No. 5 of 1982. 6. Dissatisfied with the said order the Committee of Management preferred a Special Appeal No. 833 of 2007. It is stated that in the said Special Appeal no interim order was passed and it is still pending. In the meantime the petitioner reached her age of superannuation and she retired on 30 June 2009. 7. It is stated that the petitioner after her retirement is entitled for the revised pay scale applicable to the post of Headmistress of High School in terms of a Government Order dated 20 July 2001; further revision w.e.f. 01 July 2001; the arrears of salary from 14 October 2001 to July 2007 as during this period she was paid only subsistence allowance. 8. The petitioner had made several applications for the aforesaid relief as also in her representation dated 25 September 2008. 9. From the record it transpires that the DIOS on the application of the petitioner has sought legal opinion from the DGC vide his communication dated 10.11.2008. A copy of the said communication of the DIOS is on the record as annexure-6 to the writ petition. In response to the said communication the DGC has opined that since the Special Appeal is pending against the order of the learned Single Judge, therefore, all the dues of the petitioner should be paid after the disposal of the Special Appeal. The said communication has been made to the petitioner under the Right to Information Act on 2.1.2009. 10. Counter-affidavit has been filed on behalf of the State Government. The only stand taken in the counter-affidavit is that the Special Appeal is pending as such it would be appropriate to pay the petitioner after decision in the Special Appeal. 11. The said communication has been made to the petitioner under the Right to Information Act on 2.1.2009. 10. Counter-affidavit has been filed on behalf of the State Government. The only stand taken in the counter-affidavit is that the Special Appeal is pending as such it would be appropriate to pay the petitioner after decision in the Special Appeal. 11. Sri Ashok Khare, learned Senior Advocate assisted by Sri Sunil Kumar Srivastava, learned Counsel for the petitioner submits that in any view of the matter now the petitioner stood retired and under the provisions of the U.P. Act No. II of 1921 there is no provision to continue the disciplinary proceeding after the retirement, therefore, even if the Special Appeal is pending it would not make any difference for the aforesaid reason. He has placed reliance on the judgement of this Court in the case of Dr. R.B. Agnihotri v. State of U.P. and others, 2000(2) ESC 915 (All) and; Ravindra Singh Rathore v. District Inspector of Schools, Etawah and others, 2004 (1) AWC 310 . 12. Learned Standing Counsel has very fairly submitted that merely on the ground of pendency of the Special Appeal the petitioner’s dues cannot be withheld. 13. Sri Chandra Prakash Yadav, learned Advocate holding brief of Sri V.K. Singh, learned Counsel for the respondent No. 4 states that he has no instructions in the matter. 14. I have heard learned Counsel for the respective parties and considered their submissions. 15. Section 21 of the U.P. Act No. 5 of 1982 provides that any punishment proposed by the Committee of Management shall not take effect without approval of the Board. In the instant case the Board has considered the proposed punishment and has recorded the finding that the allegations were minor in nature and, therefore, the proposal of dismissal was disproportionate to the charges levelled against the petitioner. 16. In view of the said finding the Board has awarded the punishment of only withholding of two increments on permanent basis. The decision of the Board has been upheld by this Court in Committee of Management, Chiraunji Lal Dharampal Kanya Ucchhatar Madhyamik Vidyalaya, Badaun and another v. State of U.P. and another v. State of U.P. and others, 2007 (6) ADJ 490 . A copy of the said judgment is annexure-1 to the writ petition. The decision of the Board has been upheld by this Court in Committee of Management, Chiraunji Lal Dharampal Kanya Ucchhatar Madhyamik Vidyalaya, Badaun and another v. State of U.P. and another v. State of U.P. and others, 2007 (6) ADJ 490 . A copy of the said judgment is annexure-1 to the writ petition. The Special Appeal filed against the said judgment is pending but admittedly no interim order has been passed. 17. I find there is considerable merit in the contention urged by Sri Khare that in the U.P. Act No. II of 1921 and U.P. Act No. 5 of 1982 there is no provision for initiating or continuing disciplinary proceeding against a retired teacher, therefore, in absence of any provision in the U.P. Act No. II of 1921 and the U.P. Act No. 5 of 1982 to continue the disciplinary proceedings against the retired teacher, the pendency of the Special Appeal will have no effect after the retirement of the petitioner. 18. In view of the said facts the order of the DIOS dated 2.1.2009 is liable to be set aside. It is accordingly set aside. The petitioner is permitted to move a fresh application alongwith the certified copy of this order within two weeks giving details of her entitlement of the salary and retiral benefits and various dues, which have been mentioned in the writ petition, before the DIOS. The DIOS shall pass the appropriate order expeditiously but not later than three months from the date of communication of this order. 19. The DIOS shall have due regard to the fact that the petitioner is a retired teacher, therefore, all her dues may be paid expeditiously without any delay. 20. The writ petition is, accordingly, allowed. 21. No order as to costs. —————