Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 796 (ALL)

Shiv Prasad Chauhan v. State of U. P.

2015-04-13

MUKHTAR AHMAD, RAKESH TIWARI

body2015
JUDGMENT This appeal is reported to be delayed by one year 205 days which has been explained by filing an affidavit. 2. Cause shown is sufficient. 3. Accordingly, the application for condonation of delay is allowed and delay in filing the appeal is condoned. 4. This appeal challenges the judgment and order dated 18.7.2013 passed by the Writ Court in Civil Misc. Writ Petition No. 38347 of 2013. The relief sought in this appeal is to set aside the judgment aforesaid and for issuing a writ pf mandamus commanding the respondents to pay salary to him to the post of Assistant Teacher in L.T. Grade of Adarsh Uchchattar Madhyamik Vidyalaya Hadiya, District Azamgarh regularly under the provisions as contained under U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act,1971 along with arrears of salary to the appellant with effect from 1.4.1991. 5. It appears from the impugned judgment that the claim of the appellant had attained finality in earlier writ petition. The order reads thus- " Petitioner has approached this Court to ensure salary admissible to the post of Assistant Teacher in L.T. Grade of Adarsh Uchchattar Madhyamic Vidyalaya Hadiya, District Azamgarh regularly under the provision as contained under U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employee) Act, 1971. Record in question reflects that earlier petitioner alongwith 4 other had filed Civil Misc. Writ Petition No. 12438 of 1995 before this Court and this Court has dismissed the aforesaid writ petition vide judgment and order dated 07.10.1998. Against the said order in question Special Appeal No. 953 of 1998 has been filed and the said Special Appeal in question had also been dismissed vide judgment and order dated 04.03.2004 and net effect of the same was that claim made by the petitioners for their absorption which was inclusive of petitioners also on the basis of strength of Assistant Teachers of the institution concerned have been negated. Said chapter in question has attained finality and now petitioner once again is before this Court and is contending that he should be paid salary as admissible to the post of Assistant Teacher in L.T. Grade of Adarsh Uchchattar Madhyamic Vidyalaya Hadiya, District Azamgarh regularly under the provision as contained under U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employee) Act, 1971. Claim of the petitioner has already been negated by the Single Judge in the past and same has been affirmed in Special Appeal, then closed chapter cannot be re-open as such no relief or reprieve can be accorded to the petitioner. Consequently, present writ petition is dismissed. " 6. Learned counsel for the appellant has realied upon the judgment rendered by this Court on 21.7.2011 in Civil Misc. Writ Petition No. 78850 of 2005,? Ram Murti Tiwari Vs. State of U.P. and others which reads thus- "Heard learned counsel for the parties and perused the record. This case has been filed as far as back in the year 2005. The facts of the case are that the petitioner claims absorption in service on the college having been upgraded. It appears that the District Inspector of Schools, Azamgarh by his order dated 28.8.1989 notifying the list of the teaching and non teaching staff including the name of the petitioner is shown as absorbed employee of the college Adarsh Uchchattar Madhyamic Vidyalaya Hadiya, Azamgarh which is a recognized institution under the U.P. Intermediate Education Act. It appears that the District Inspector of Schools by his order dated 15.7.1991 cancelled its earlier order dated 28.8.1989 and issued a separate list of the employee as absorbed employee. Aggrieved by the order dated 15.7.1991, the petitioner and 12 other employees have filed writ petition no. 22046 of 1991: Mohd. Mustafa & others Vs. DIOS & others. This petition was finally disposed of with the direction to the Joint Director of Education to decide the representation of the petitioner as well as of the respondent and also to determine as to whether the petitioners and other respondents were appointed prior to up-gradation of the institution. Pursuant thereto, the Joint Director of Education, Gorakhpur by his order dated 10.3.1995 approved the name of 6 persons to be appointed prior to up-gradation of the institution and holding them entitled for being teacher after up-gradation. The petitioner and 3 other employees, thereafter preferred writ petition no.12438 of 1995: Rajdhar Pandey & others Vs. Joint Director of Education & others. This petition was dismissed by order dated 31.8.1994 directing the Joint Director to determine the name of the teachers who have been appointed prior to up-gradation of the college. Special appeal no. The petitioner and 3 other employees, thereafter preferred writ petition no.12438 of 1995: Rajdhar Pandey & others Vs. Joint Director of Education & others. This petition was dismissed by order dated 31.8.1994 directing the Joint Director to determine the name of the teachers who have been appointed prior to up-gradation of the college. Special appeal no. 953 of 1998 was filed by the petitioner and three others which was dismissed by the Court vide order dated 4.3.2004. In the above backdrop, the petitioner moved representation to the District Inspector of Schools, Azamgarh, requesting for payment of salary to him on the ground that against the 8 sanctioned post of the assistant teacher only 6 teachers have been shown to be appointed prior to up-gradation of the institution and no decision has been taken in so far as against the remaining 2 other employees as yet. He claims that the college is within the purview of the U.P. High School and Inter mediate Colleges ( Payment of Salaries of Teachers and other Employees) Act 1971 and 8 assistant teachers are entitled for the salary in accordance with Payment of Salary Act, 1971. This representation of the petitioner has not been decided till date. The petitioner, therefore, has preferred this petition for a direction in the nature of mandamus commanding the respondent to pay salary to the petitioner admissible to the post of assistant teacher in L.T. grade of Adarsh Uchchattar Madhyamic Vidyalaya Hadiya, District-Azamgarh, regularly under the provision of U.P. High School and Intermediate (Payment of Salaries of Teachers and other Employees) Act, 1971 and also for payment of entire arrears of the salary to the petitioner w.e.f. 1.4.1991. No counter affidavit has been filed by the State since 2005. In the circumstances, since learned counsel for the petitioner has confined his prayer to decide the representation dated 9.9.2005, the respondent no. 2 is directed to decide the said representation by a reasoned order within the period of three months from today. Copy of the representation along with certified copy of this order shall be submitted before the respondent no. 2 by the petitioner within a period of 15 days. With the above observations, the writ petition is finally disposed of. " 7. Copy of the representation along with certified copy of this order shall be submitted before the respondent no. 2 by the petitioner within a period of 15 days. With the above observations, the writ petition is finally disposed of. " 7. Be that as it may, once the case of the appellant had attained finality he cannot reopen the proceedings on the basis of the subsequent case in which relief may have been given to the writ petitioner. 8. In the facts and circumstances of the case, we do not find any illegality or infirmity in the order impugned in this appeal. 9. This appeal fails and is accordingly, dismissed.