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Allahabad High Court · body

2017 DIGILAW 2043 (ALL)

UMA PRAKASH SINGH v. STATE OF U. P.

2017-08-31

SANGEETA CHANDRA

body2017
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—This writ petition has been filed by the petitioner praying for a writ in the nature of Certiorari for quashing the order dated 21.11.2013 passed by the Regional Higher Education Officer, Varanasi and for a writ in the nature of Mandamus directing the Respondent No. 3 to pass an appropriate order for payment of salary to the petitioner for working on the post of Typist/Clerk with arrears of salary. 2. On the last occasion, the learned Standing Counsel was granted time to go through judgment and order dated 15th of January, 1991 passed by the Civil Court in OS No. 484 of 1989 wherein the Civil Judge, Azamgarh decreeing the suit ex parte against the defendants and directing for payment of Rs. 28,450/- as arrears of salary to the petitioner/plaintiff therein for having worked as Typist/Clerk in the Institution in question since August, 1975 up to July, 1983. 3. The learned Standing Counsel, Shri Anil Kumar Tripathi, has pointed out from the judgment of the Civil Court that the Managing Committee of the Institution, namely, Shri Krishna Geeta Rashtriya Degree College Lalganj, Azamgarh through its Manager was defendant No. 1 and District Inspector of Schools, Azamgarh was defendant No. 2 in the said suit. The District Inspector of Schools is concerned only with the payment of salary of Secondary Education Institutions. 4. It is the case of the State-Respondents that the District Inspector of Schools was not entitled to release the salary of the petitioner, as the petitioner was working in a Degree College and only the Director or the Regional Higher Education Officer was entitled to make payment of salary. Since the Director of Education and the Regional Higher Education Officer, Azamgarh Region, Azamgarh were not made a party to the said Civil Suit No. 484 of 1989, the said decree of the Civil Court could not be made binding upon the Regional Higher Education Officer and Director of Higher Education. 5. Since the Director of Education and the Regional Higher Education Officer, Azamgarh Region, Azamgarh were not made a party to the said Civil Suit No. 484 of 1989, the said decree of the Civil Court could not be made binding upon the Regional Higher Education Officer and Director of Higher Education. 5. Shri Anil Kant Tripathi has pointed out from various paragraphs of the counter-affidavit that the State Government is liable to make payment of salary from the State Exchequer only of those teachers and employees working in the Degree Colleges with respect to whom under Section 60-A (3) of the U.P. State Universities Act, 1973 maintenance grant was being paid by the State Government during the Financial Year, 1974-75, and also of those who were appointed on a post with the permission of the Director of Higher Education. 6. If the case of the petitioner as mentioned in the decree of the Civil Court is accepted, then, the petitioner was appointed in August, 1975. The Institution in question came under the grant-in-aid list only in July, 1983. Therefore, no maintenance grant could have been paid for the post in question in the Financial Year 1974-1975. 7. Also, it is evident from the documentary evidence which was considered by the learned Civil Judge, that he had placed reliance upon the Service Book of the petitioner, only a photostat copy of which was submitted before the Civil Court. 8. In the Service Book of the petitioner, a copy of which has also been filed as Annexure to the writ petition at page No. 46-A of the Paper Book at serial No. 11, it is stated that the petitioner was appointed on 6.8.1975 and approval was granted on 22.8.1975. 9. The mention of the date 22.8.1975 is in English numerals, whereas the date of letter of appointment as well as the Committee of Management’s Resolution mentioned in the Service Book are in Devanagari script. All other entries made in the Service Book including the name of the petitioner, his father’s name, his address, his caste, religion, citizenship, residential address, mark of identification and his educational qualifications are mentioned in the Service Book in Hindi i.e. Devanagari script and in the same handwriting, which is apparent from a bare perusal of the copy of Service Book. 10. 10. The learned Standing Counsel has further stated that since the suit was decreed ex parte against the District Inspector of Schools, payment was made by the then District Inspector of Schools in compliance of the orders passed by the Civil Court. The decree was only for recovery of arrears of salary and it was not for a declaration that the petitioner/plaintiff was a duly appointed Clerk in the Institution in question. The decree was complied with out of compulsion as it had attained finality having not been challenged by the Educational Authority at any point of time. 11. However, the fact remains that the College in question came under the grant-in-aid list only in July, 1983. After July, 1983 it is the admitted case of the petitioner as mentioned in his various applications that the Management had not included the name of petitioner in the manger’s return at any point of time. He was never paid any salary as an approved employee of the Institution in question at any point of time. 12. The petitioner filed one writ petition No. 11227 of 1999 which was finally disposed of on 13.5.2009 with a direction to the District Inspector of Schools, Azamgarh to seek a report from the College concerned and pass an appropriate order expeditiously if the employee was still continuing in the School in question. 13. When this order was not complied with by the District Inspector of Schools, the petitioner again filed a writ petition being Writ - A No. 1529 of 2013 which was decided on 21.11.2013 with the direction to the Regional Higher Education Officer, Varanasi to look into the matter as according to the District Inspector of Schools it was the Regional Higher Education Officer, Varanasi who had to take a decision with regard to the payment of salary of the petitioner. The Regional Higher Education Officer called for a report from the Management of the Institution which was submitted by the Principal of the College concerned. The Regional Higher Education Officer looked into the various representations made by the petitioner and came to the conclusion that the Management in its list of employees submitted on 29.7.2009 had not kept the name of the petitioner under the heading of “Employees who were on the Salary Account of the Institution”. 14. The Regional Higher Education Officer looked into the various representations made by the petitioner and came to the conclusion that the Management in its list of employees submitted on 29.7.2009 had not kept the name of the petitioner under the heading of “Employees who were on the Salary Account of the Institution”. 14. It was admitted by the Principal of the College concerned that no other Clerk was working in the Institution since the very beginning and although no papers/documents were received from the erstwhile Management of the college, yet on the basis of the documents in existence in the School office, it had come out that the petitioner was working since 1975 up to the date of submission of the said report in 2009 as Typist/Clerk in the Institution in question. There were 1250 students in the Institution and the College was entitled for at least one post of clerical cadre and recommendation was, therefore, made by the Principal of the Institution that since the petitioner has been working since 1975, approval to his appointment may be given and salary be released. Moreover, in the College concerned one post of Office Superintendent Grade-II and one post of Routine Grade Clerk had already been sanctioned and the post of Routine Grade Clerk had remained vacant. 15. The Regional Higher Education Officer, Varanasi in his order impugned in this writ petition has looked into the representation of the petitioner and the report submitted by the Principal of the College concerned alongwith the documents made available and has come to the conclusion that although in compliance of the order passed by the Civil Court Rs. 28,796.50 was paid as arrears of salary w.e.f. 1.7.1983 to 31.8.1987, the College concerned had never submitted the case of the petitioner for approval before the Director of Higher Education nor any document regarding alleged approval dated 2.11.1975 was produced before him. He has come to the conclusion that the entries in the Service Book have been verified w.e.f. 1.7.1984 till date by the then Principal and Manager of the College. 16. But there was absence of any evidence of compliance with the conditions mentioned in Section 60-A of the State Universities Act with regard to the entitlement of salary of the employee concerned and no evidence had been produced either by the College or by the petitioner. 17. 16. But there was absence of any evidence of compliance with the conditions mentioned in Section 60-A of the State Universities Act with regard to the entitlement of salary of the employee concerned and no evidence had been produced either by the College or by the petitioner. 17. The learned Standing Counsel has submitted that the Regional Higher Education Officer has rejected the case of the petitioner since the employee in question was working in the Institution and was permitted to work in the Institution by the Committee of Management without approval of the Education Authorities at any point of time, the liability for payment of salary also lies upon the Management of the Institution. 18. The Committee of Management had been issued notice and this Court has found from the office report submitted regarding the service of notice, that the Committee of Management did not respond to the said notice and this Court has also found the service on the Committee of Management to be sufficient. 19. I have perused the order of the Civil Court as well as the order impugned in this writ petition and I have heard the learned counsel for the parties. The learned counsel for the petitioner has stated that at the point of time when the suit was filed in 1989 the District Inspector of Schools was the competent authority to give approval for the employees engaged by the Institution in question even though a Degree College, and therefore, the petitioner/plaintiff had found it appropriate to array the District Inspector of Schools, Azamgarh as a defendant in the said suit. There was no need for arraying either the Regional Higher Education Officer or the Director of Higher Education as party to the said suit. 20. However, the learned counsel for the petitioner has not been able to produce any evidence in support of his contention. As is apparent from a bare perusal of the documents filed with the Paper Book, the College in question may have been running from 1975 or even before, but was taken under the grant-in-aid list only in July, 1983. At the time of taking of a Degree College under the grant-in-aid list, the Director of Higher Education becomes the competent authority to release salary of an employee if such employee fulfils the conditions mentioned in Section 60-A of Chapter XI-A of the U.P. State Universities Act, 1973. At the time of taking of a Degree College under the grant-in-aid list, the Director of Higher Education becomes the competent authority to release salary of an employee if such employee fulfils the conditions mentioned in Section 60-A of Chapter XI-A of the U.P. State Universities Act, 1973. The liability for payment of salary under Section 60-E of the U.P. State Universities Act,1973 read with Section 60-A of the Act would, therefore, not be upon the State Exchequer. 21. The writ petition for the reasons mentioned as aforesaid has been found to be devoid of merit and is hence dismissed. No order as to costs. 22. It would be open for the petitioner to move appropriate Court for recovery of salary from the Committee of Management.