Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1363 (ALL)

State of U. P. v. Kedar Nath Maurya

2016-04-12

UMESH CHANDRA SRIVASTAVA, V.K.SHUKLA

body2016
JUDGMENT Ref: Delay Condonation Application Delay of two years 345 days is condoned for the reasons stated in affidavit filed in support of Delay Condonation Application. Accordingly, Delay Condonation Application is allowed. The Special Appeal is treated to have been filed well within time. Ref: Special Appeal 2. State of U.P. through Director of Education (Intermediate), Government of U.P. Lucknow is before this Court, assailing the validity of the order dated 28th February, 2013 passed by learned Single Judge in Writ Petition No.45253 of 2006 (Kedar Nath Maurya vs. State of U.P. and others) asking the State Government to ensure payment for the period starting w.e.f. 03.11.1982 to 13.01.1999 within a period of six months and thereafter to recover such amount paid by way of arrears of salary etc. to the petitioner from the Institution concerned in exercise of powers conferred under Section 10(2) of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971. 3. The factual situation that is so emerging, in the present case, is that petitioner-opposite party was appointed as Assistant Teacher in the Junior High School on 9.7.1973. The Institution in question at the point of time when it was upto the status of Junior High School has been in the grant-in-aid list of State Government and the provisions of the provisions of U.P. Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 (U.P. Act No.6 of 1979) were fully applicable to the said Institution in question. On 19.5.1979, the services of the petitioner-opposite party were terminated and against the same, he preferred an appeal and the said appeal in question stood allowed vide order dated 03.11.1982 but in spite of the fact that appeal in question has been allowed, the incumbent in question was not reinstated back in service and during this interregnum period, the Institution in question was upgraded as Higher Secondary School and it was also brought in the grant-in-aid list as High School w.e.f. 1.4.1991 and the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other employees) Act, 1971 (U.P. Act No.24 of 1971) were made applicable to the Institution in question. Petitioner-opposite party was reinstated back in service on 08.07.1999 and the pay fixation of the petitioner-opposite party has been made w.e.f. 13.01.1999 as Assistant Teacher L.T. Grade vide order dated 26.08.2002. Petitioner-opposite party was reinstated back in service on 08.07.1999 and the pay fixation of the petitioner-opposite party has been made w.e.f. 13.01.1999 as Assistant Teacher L.T. Grade vide order dated 26.08.2002. This much is also reflected that petitioner-opposite party has been continuously representing the matter and ultimately he has proceeded to file Writ Petition No.45253 of 2006 before this Court and this Court eventually has proceeded to dispose of the writ petition in question by means of the directions that are subject matter of challenge before this Court. 4. Shri Vivek Shandilya, counsel for the State Government has submitted before us that, in the present case, unnecessary liability has been fastened upon the State Government and it would be difficult for the State Government to recover the amount from the Institution concerned and that too from its income as such, in order to save the State from such a burden, relief be accorded. 5. Shri Inder Raj Singh, Advocate, on the other hand, contended that rightful orders have been passed in consonance with the statutory provisions that holds the field as such, no interference is required to be made. 6. After respective arguments have been advanced, the factual position is that petitioner-opposite party has been performing and discharging duties as Assistant Teacher in Junior High School w.e.f. 9.7.1973 and this much is also accepted position that when the Institution in question was running as Junior High School, the services of petitioner-opposite party has been disengaged on 19.05.1979 and against the same, appeal has been preferred by the petitioner-opposite party and the same has been allowed on 03.11.1982. The net effect of the said order was that petitioner-opposite party was entitled to function and receive remuneration, which was admissible to him in accordance with the statutory provisions. The net effect of the said order was that petitioner-opposite party was entitled to function and receive remuneration, which was admissible to him in accordance with the statutory provisions. This much is accepted position that Institution in question was upgraded to Higher Secondary School and was brought within the scope and ambit of 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 record in question reflects that petitioner-opposite party has been reinstated in service on 08.07.1999 and thereafter Writ Petition No.45253 of 2006 has been filed before this Court in the year 2006 on the premises that pay fixation of petitioner has wrongly been made w.e.f. 13.01.1999 as Assistant Teacher L.T. Grade, whereas it ought to have been made from anterior date. The learned Single Judge, in his turn, has proceeded to consider the matter and has clearly arrived at a conclusion that the order that has been passed on the earlier occasion i.e. 26th August 2002 is unsustainable for the simple reason that once the petitioner-opposite party had been kept out of service from 03.11.1982 upto 13.01.1999, and has been reinstated in service w.e.f. 08.07.1999, then the liability for payment of salary for the period for which the petitioner-opposite party has been kept out of service will fall upon the State Government and as such, directives have been issued to the D.I.O.S., Sant Kabir Nagar, 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. 01.04.1991. In reference of period i.e. 03.11.1982 upto 13.01.1999, mention has been made that petitioner-opposite party is entitled to arrears of salary which shall be paid by the State Government as per the Statutory provisions under Section 10(1) of U.P. Act No.24 of 1971 and thereafter the State Government as per Section 10(2) of U.P. Act No.24 of 1971 shall exercise its powers to recover the said expenditure from the Institution in question. 7. 7. Once the liability for payment of arrears of salary to the petitioner-opposite party is not disputed and Management in question has not at all choosen to appear before the learned Single Judge and the order in question has been passed in consonance with the statutory provisions i.e. in consonance with the provisions of Section 10(1) and 10(2) of U.P. Act No.24 of 1971, then no interference is required to be made by us merely on account of the fact that it would be difficult for the State to recover the said amount after making payment from the Institution in question, as statutory provisions itself have been framed/designed by the State Government that State would make the payment and then ensure its recovery from the income of the Institution concerned, then merely because said provisions in question would lead to hardship in realizing the said amount in question paid, cannot be a ground to defeat legislative intent. Special Appeal is dismissed accordingly.