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2016 DIGILAW 3964 (ALL)

Amar Nath Gaurh v. State of U. P.

2016-12-08

P.K.S.BAGHEL

body2016
JUDGMENT Pradeep Kumar Singh Baghel,J. 1. The petitioner is a class-IV employee in a High School, which is a recognized and aided Institution. He has preferred this writ petition for a direction upon the second and third respondents to pay the arrears of salary to the petitioner from the date of approval till 25.01.2005. 2. The essential facts of the case are; Kisan Uchchatar Madhyamik Vidyalaya, Abhu Ram, Gorakhpur (for short, the "Institution") is a recognized institution. The education is imparted up to the level of class-Xth. It receives financial aid from the State fund. The Institution is managed by the fourth respondent and is governed under the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 and the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. 3. It is stated that the petitioner was appointed in August, 1980 in the Institution and his papers were sent for approval. The institution was not on the grant-in-aid list at that point of time and from 01.12.1985 it started receiving financial aid from the State Government thus the provisions of the Act, 1971 became applicable. 4. The District Inspector of Schools vide order dated 02.01.1987 accorded approval to the four employees, who were working as peon in the Institution. The petitioner's name is at Sl. No. 2 in the said order. A copy of the approval order is on the record as annexure-1 to the writ petition. 5. In spite of the said approval, it is stated that the Management did not send the name of the petitioner in the salary bill and it included the name of another Amar Nath Tripathi who had similar name of the petitioner. The said person was the real brother of the then Manager of the Institution. 6. When the salary was not paid to the petitioner he made a representation to the DIOS who has passed a detailed order vide order dated 04.07.1988 whereunder he issued a direction to the Committee of Management of the Institution to include the name of the petitioner in the salary bill. It has also been recorded that Amar Nath whose name has been sent by the Management is the real brother of the Manager Triloki Nath Tripathi. 7. Aggrieved by the said order, Amar Nath Tripathi preferred Writ Petition No. 15463 of 1988. It has also been recorded that Amar Nath whose name has been sent by the Management is the real brother of the Manager Triloki Nath Tripathi. 7. Aggrieved by the said order, Amar Nath Tripathi preferred Writ Petition No. 15463 of 1988. The said writ petition was dismissed by this Court on 25.11.2004. Dissatisfied with the order of the writ petition, Amar Nath Tripathi preferred Special Appeal No. 15 of 2005 which was dismissed by this Court on 03.01.2006. It is stated that the petitioner is receiving his regular salary from 25.01.2005 vide order of the DIOS which is on the record. 8. The grievance of the petitioner is that his salary from 02.01.1987 to 2005 has not been paid without any justifiable reason although the petitioner was continuously working in the Institution. 9. A counter affidavit has been filed. Stand taken in the counter affidavit is that the Committee of Management of the Institution did not submit any bill in regard to the salary of the petitioner for the period 02.01.1987 to 25.01.2005. It has also been pointed out that in the writ petition of Amar Nath Tripathi this Court had passed an interim order dated 12.08.1988 staying operation of the order of the DIOS dated 04.07.1988. Consequently, the salary was paid to Amar Nath Tripathi up to 25.01.2005. Thereafter, the payment of salary of Amar Nathi Tripathi was stopped. It is further stated that since the salary was paid to Amar Nath Tripathi hence the petitioner is not entitled for salary for the said period. 10. Learned counsel for the petitioner submits that the petitioner was appointed after following the procedure and the DIOS has approved the appointment of the petitioner in the year 1987. It is further submitted that his salary was not paid. The DIOS on 04.07.1988 has passed a detailed order for the payment of the petitioner and has also found that the appointment of Amar Nath Tripathi was illegal. He has also pointed out that earlier the DIOS had granted approval for four class-IV employees including the petitioner and the petitioner's bank account was also opened for the payment of his salary, however, by playing fraud and taking advantage of similarity in the name of the petitioner and Manager's close relative Amar Nath, the petitioner's salary was diverted to the account of Amar Nath Tripathi who was never appointed in the Institution. 11. 11. It is lastly urged that the order of the DIOS was challenged by Amar Nath Tripathi in the writ petition which was dismissed and Special Appeal was also dismissed. Thereafter, the salary of the petitioner is being paid, thus the petitioner is entitled for his arrears of salary. 12. Learned Standing Counsel has admitted the fact that the appointment of the petitioner was approved by the DIOS. He states that the fraud has been played by the Committee of Management, thus the Committee of Management is liable to make payment of arrears of salary of the petitioner. 13. I have considered the rival submissions and perused the record. 14. The Institution was brought on the grant-in-aid list in the year 1985. As per the norms, the Management has sent its Managerial Return to the DIOS, wherein the details of the approved posts, the persons who are working on teaching and non-teaching staff, their educational qualifications etc. are provided. The DIOS is under the statutory obligation to verify all the facts submitted in the M.R. forms and approve the names of the teaching and non-teaching staff who are duly appointed against the sanctioned posts for their appointment and for payment from the salary payment account. The DIOS vide his order dated 02.01.1987 has approved the salary of the 18 teaching and non-teaching staff including 04 peons, namely, Jay Ram, Amar Nath, Kothari and Bhandi Prasad. The order of the DIOS was not challenged by the Management or Amar Nath Tripathi. Later, upon the representation of the petitioner a detailed reasoned order has been passed by the DIOS wherein he has found that the petitioner is validly appointed class-IV employee and the then DIOS had accorded approval. The DIOS has also recorded a finding that with the permission of the Principal of the Institution the petitioner has opened a Bank Account No. 9624 for the payment of his salary in the State Bank, Pipiganj. He has also recorded a finding that the petitioner is continuously attending his duties in the institution and his signatures have been found in the attendance register. He has also recorded a finding that the petitioner is continuously attending his duties in the institution and his signatures have been found in the attendance register. Relevant part of the findings of the DIOS is extracted hereinbelow: %hnd1%"--- osru Hkqxrku ds fy, fo|ky; ds iz/kkukpk;Z Jh jke feyu }kjk prqFkZ oxhZ; deZpkjh ds : i esa izekf.kr izi= ds vk/kkj ij LVsV cSad ihihxat esa Jh vej ukFk xkSM+ us viuk [kkrk 9624 [kksyk A Jh vej ukFk xkSj iq= Jh lqnkek izfrfnu fo|ky; tkrk jgk mifLFkr iaftdk ij gLrk{kj djrk jgk A tc osru Hkqxrku dk iz'u vk;k rks mlds LFkku ij Jh vej ukFk f=ikBh iq= Jh Bkdqj izlkn f=ikBh [kkrk la[;k 9998 ds osru Hkqxrku gksus yxk A vDVwcj 1987 esas vej ukFk xkSM+ iq= Jh lqnkek ds [kkrk la[;k 9624 esa : i;k 1420&80 iSlk V~kUlQj ds ek/;e ls tek gqvk---"%hnd2% 15. It is further recorded that the management has illegally opened a fresh account 9998 in the name of Amar Nath Tripathi and the salary bill of Amar Nath Tripathi was sent hence the salary amount has been deposited in the account of Amar Nath Tripathi illegally. The order of the DIOS was challenged by Amar Nath Tripathi by Writ Petition No. 15643 of 1988. This Court dismissed the said writ petition on 25.11.2004 and has recorded a finding in favour of the petitioner in following terms: "The District Inspector of Schools has considered the entire documents and has found that Sri J.P. Agarwal, the then District Inspector of Schools had verified the attendance register on 29.5.1982 and had found that Sri Amar Nath Gaur was working as Class IV employee. Sri Ramagya Rai, the then District Inspector of Schools had also investigated the matter and taking into account the number of sanctioned posts and the letters by which such posts were created, he had made physical verification and approved the payment of salaries to four Class IV employees including Amar Nath Gaur on 2.1.1987. A transfer memo was prepared in June/ July for the transfer of salaries. The Management was aware of the account of Sri Amar Nath Gaur, respondent No. 4 before in making the corrections. He had also found that Sri Amar Nath Tripathi is the real brother of the Manager of the institution." 16. A transfer memo was prepared in June/ July for the transfer of salaries. The Management was aware of the account of Sri Amar Nath Gaur, respondent No. 4 before in making the corrections. He had also found that Sri Amar Nath Tripathi is the real brother of the Manager of the institution." 16. The said order was challenged by Amar Nath Tripathi by way of Special Appeal No. 15 of 2005 which has also been dismissed on 03.01.2006. 17. The DIOS has recorded a finding, which is extracted hereinabove, that the petitioner has continuously worked in the Institution and his signatures have been found in the attendance register thus there is no doubt that the petitioner has actually worked during the said period as found by the DIOS. 18. The aforesaid facts clearly indicate that the petitioner is entitled for his arrears of salary. In the counter affidavit it has been mentioned that the State is not liable for the payment of salary as it has also released the salary in favour of Amar Nath Tripathi in compliance of the order of this Court. 19. This Court has issued notice to the Committee of Management. As per the office report dated 05.07.2006 neither the acknowledgment nor unserved notice has been received. The matter is pending for more than 10 years, the committee of management has preferred not to contest the writ petition as no counter affidavit has been filed. 20. It is significant to mention that when Amar Nath Tripathi challenged the order of the DIOS, this Court on 12.08.1988 has simply stayed the operation of the order of the DIOS. There was no direction for the payment of salary. It is a well settled law that once the writ petition is dismissed, it is a duty of the Court to restore the position of matter as was at the time of filing of the writ petition. Reference may be made to the judgements of the Supreme Court in the case of South Eastern Coalfields Ltd. v. State of M.P. and others, (2003) 8 SCC 648 . The Supreme Court has observed as under: "26. In our opinion, the principle of restitution takes care of this submission. Reference may be made to the judgements of the Supreme Court in the case of South Eastern Coalfields Ltd. v. State of M.P. and others, (2003) 8 SCC 648 . The Supreme Court has observed as under: "26. In our opinion, the principle of restitution takes care of this submission. The word "restitution" in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution or decree or order or the court or in direct consequence of a decree or order (See : Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505 : AIR 1985 SC 39 . In law, the term "restitution" is used in three senses; (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, Seventh Edition, p.1315). The Law of Contracts by John D. Calamari & Joseph M. Perillo has been quoted by Black to say that "restitution" is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done. "Often, the result in either meaning of the term would be the same. ...Unjust impoverishment as well as unjust enrichment is a ground for restitution. If the defendant is guilty of a non-tortuous misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed." The principle of restitution has been statutorily recognized in Section 144 of the Code of Civil Procedure, 1908. Section 144 of the C.P.C. speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. The interim order passed by the court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the court, the successful party at the end would be justified with ail expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the court at the stage of final decision, the court earlier would not or ought not to have passed. There is nothing, wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed." 21. From the findings of the DIOS, which have been found to be correct by this Court, it is evident that the Committee of Management by playing fraud has diverted the salary of the petitioner to the illegally opened account of Amar Nath Tripathi. No action has been taken by the DIOS and the State authorities against the Management despite the said finding has been affirmed up to special appeal. Hence the plea taken in the counter affidavit that the State is not liable to make payment for the petitioner, has no force. 22. No action has been taken by the DIOS and the State authorities against the Management despite the said finding has been affirmed up to special appeal. Hence the plea taken in the counter affidavit that the State is not liable to make payment for the petitioner, has no force. 22. After careful consideration of the matter, I am of the view that the petitioner who was duly appointed and has continuously worked in the Institution is entitled for his arrears of salary from 02.01.1987 to 25.01.2005. The said salary shall be paid by the State. It is open to the State to recover the said amount from the Committee of Management taking recourse to the remedy which is available under the law. 23. The said arrears of salary of the petitioner for the said period shall be paid within three months from the date of communication of this order. 24. The writ petition is, accordingly, disposed of. 25. No order as to costs.