Disposed

Km. Aruna Sinha v. State of U.P. and 3 Others

Allahabad HC3 Dec 2018WRIA/25405/2018

Case brief

AI extract

What is this about?

The court examined a writ petition challenging a Finance Officer's order referring a salary dispute to a controller. The Single Judge held that the Officer exceeded his authority under the relevant Act and directed the education department to facilitate salary payment and verify records within a specified timeframe.

What did the court decide?

The impugned order by the Finance and Accounts Officer stood stayed. Petitioner permitted to move Assistant Director (Basic Education), Allahabad. District Basic Education Officer directed to forward

Km. Aruna Sinha Vs State of U.P. and 3… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 4

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Case :- WRIT - A No. - 25405 of 2018

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Petitioner :- Km. Aruna Sinha Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ved Prakash Shukla Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav

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Hon'ble Ajit Kumar,J.

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Heard learned counsel for the parties.

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The petitioner by means of this writ petition has questioned the correctness of the order dated 14.11.2018 passed by the Finance and Accounts Officer, Basic Shiksha, Prayagraj on twin grounds: Firstly, that the Finance and Accounts Officer can not use such power to refer a matter for appointment of teacher to the Basic Shiksha Adhikari, and, secondly on the ground that the petitioner had already written a letter to the Finance and Accounts Officer, Basic Education Officer, Allahabad/Prayagraj dated 05.02.2018 whereby she had apprised the Authority concerned that she was not in possession of the service books of the teachers concerned namely Ms. Archana Mehrotra, Ms. Shashibala Singh.

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Briefly stated the facts are that earlier the petitioner filed writ petition before this Court that the salary of the petitioner was not being paid. All the teachers filed an application including the petitioner since May, 2016 and this Court had passed the order dated 10.01.2018 disposing of the writ petition with the following direction which reproduced herein under:-

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"...... Once such is the factual situation that petitioner is ready to comply with the order impugned dated 01.12.2017, then there is no occasion or reason to keep the matter pending and the same is accordingly disposed of with the direction that in case, the petitioner complies with the order dated 01.12.2017 within two months from today, then the salary of the petitioner as well as other teaching and non teaching staff would be released forthwith."

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It is in compliance of this above order that the petitioner had made an application to the Finance and Accounts Officer on 05.02.2018. It appears that the controversy remained unresolved and by impugned order the Finance and Accounts Officer referred the matter to the Basic Education Officer, Prayagraj for appointing authorized Controller in the institution.

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Per contra, the argument advanced by Sri A.K. Yadav, learned counsel appearing for the third and fourth respondents

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states that the question of appointment and salary would arise only in case petitioner fully complies with the earlier order of this Court passed in Writ Petition No.1066 of 2018, dated 10.01.2018.

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Having heard the rival contentions advanced before this Court by the learned counsel for the parties, this Court reaches only to one conclusion that the petitioner claims to have forwarded the service books whatever he had been in possession and the teachers concerned whose service books was not in her possession, could not have been forwarded whereas on the issue of the payment of salary the Finance and Accounts Officer is still taking that stand that in the absence of relevant records nothing can be done. It is very interesting to note that on account of two teachers in respect of whom the controversy with regard to the service books is initiated the payment of salary of other teachers have been withheld whereas there is no such order passed by the District Basis Education Officer to withhold salary of the petitioner as Head Master and other teachers. It appears that the Finance and Accounts Officer has proceeded in the matter without examining the relevant provisions of Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) Act, 1978 which provides for the payment of salary and strict obligation has been cast upon the District Basic Education Officer to take decision in the matter. Reference for appointment of authorized Controller by the Finance and Accounts Officer is not conceived of under the Act.Provisions run as under:-

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" 3. Payment of salary within time and without unauthorised deductions . — (1) Notwithstanding any contract to the contrary, the salary of a teacher or other employee of an institution in respect of any period after the appointed day, shall be paid to him before the expiry of the twentieth day, or such earlier day as the State Government may by general of special order in that behalf, appoint of the month next following the month in respect of which or any part of which it is payable.

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(2) The salary shall, subject to the provisions of sub-section (3), be paid without deductions of any kind except those authorised by the rules made under this Act or by any other law for the time being in force.

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(3) Where the salary of a teacher or other employee of an institution is not paid in accordance with sub-section (1) due to any default on the part of the management, the Inspector may, without prejudice to any other provisions of this Act, pay or cause to be paid within ten days from the date mentioned in that sub-section such salary from the moneys credited to the account mentioned in sub-section (1) of section 5 at the rate of salary last drawn by such teacher or employee, as the case may be, and in case of fresh appointment at the rate of minimum of the pay scale in which he has been appointed, and any adjustment in respect of such payment shall, thereafter, be made as soon as possible.

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4. Power to inspect .— (1) The Education Officer, may at any time, for the purpose of this Act, inspect or cause to be inspected any institution or call for such information and records (including registers, books of accounts and vouchers) from its management with regard to the payment of salaries to its teachers or employees or give its management any direction for the observance of such canons of financial propriety (including any i direction for retrenchment of any teacher or employee for prohibition of any wasteful expenditure) as he thinks fit.

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(2) Where a direction under sub-section (1), is given for retrenchment of any teacher or employee, it shall be complied with as far as possible in accordance with the provisions of the Uttar Pradesh Basic Education Act, 1972 and the rules made thereunder, or as the case may be, the conditions of service of such teacher or employee.

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5. Procedure for payment of salary in the case of certain institutions .— (1) The management of every institution shall for the purposes of disbursement of salaries to its teachers and employees open in a Scheduled bank or a co-operative bank, a separate account to be operated jointly by a representative of the management and by the Education Officer or such other officer as may be authorised by the Education Officer in that behalf :

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Provided that after the account is opened, the Education Officer may, if he is, subject to any rule made under this Act, satisfied that it is expedient in public interest so to d6, instruct the Bank that the account shall be operated by the representative of the management alone, and may at any time revoke such instruction :

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Provided further that in the case referred to in the proviso to sub-section (2), or where a difficulty arises in the disbursement of salaries due to any default of the management, the Education Officer may instruct the Bank that the account shall be operated only by himself or by such other officer as may be authorised by him in that behalf and may at any time revoke such instruction.

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(2) The management shall deposit in this said account by such date as may be specified by general or special orders by the Education Officer, eighty-five per cent, or where the State Government or an officer authorised by the State Government having regard to the money required to be disbursed, directs a higher percentage, then such higher percentage as it or he may direct, of the amount received from the students as fees which in accordance with the general or special orders of the State Government in that behalf and for so long as such orders are not made in accordance with the directions of the Inspector, form part of the maintenance fund :

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Provided that where the said percentage of fees is not deposited as aforesaid, the Education Officer may, by order, prohibit the management from making any realisation of fees from the students and thereupon, the Education Officer may recover the fees (either through the teachers of the institution or in such other manner as he thinks fit), directly from the students and shall deposit the fees so recovered in the said account.

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(3) The entire amount of the maintenance grant and the amount of eightyfive per cent, or such higher percentage, as the State Government or an

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officer authorised by the State Government may, by general or special order in that behalf determine of the grants for reimbursement of freeship and other similar concessions shall also be paid by the State Government into the said account.

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(4) No moneys credited to the said account shall be applied too any purpose except the following namely—

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(a) payment of the salaries falling due for any period after the appointed day;

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(b) credit of institution's contribution, if any, to the provident fund accounts of the teachers and employees, and such portion of the balance in the account at the end of the month of July each year as exceeds the aggregate of one month's salary of the teachers and employees of the institution after meeting the liability for payment of their salaries for the period for which fees have been realized from the students shall be made over to the management for expenditure on the institution;

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(c) such other expenditure for the purposes of the institution as may be directed by the State Government or by an officer authorised by the State Government in that behalf.

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(5) The salary of a teacher or employee shall be paid by transfer of the amount from the said account to his account, if any, in the same Bank, or if he has no account in that bank then by cheque.

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(6) In respect of a place where there is no scheduled Bank or a Cooperative Bank, the provision of this section shall apply with such modification as the State Government may by notification specify and the references in this section to Bank shall in that case be construed as references to a Post Office Savings Bank.

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(7) The management shall submit to the Director a return in respect of each financial year by the 30th June next following in the pro forma as may be specified by general or special order by the Director.

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6. Enforcement of provision and directions .—(1) Where on the basis of an inspection of an institution or its records or otherwise the Education Officer is satisfied that the management has committed default in complying with any direction given under Section 4 or with the provisions of Section 3 or Section 5, he may through the Inspector, recommend to the Regional Deputy Director, Education, that action be taken against the institution under sub-section (2).

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(2) On receipt of a recommendation under sub-section (1), the Regional Deputy Director, Education, may call upon the management to comply with the laid direction or provision or to show cause within a week why the management should not be superseded.

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(3) Where the management fails to comply as aforesaid or to show cause or the Regional Deputy Director, Education, considers the cause shown to be insufficient he may by order supersede the management, for such period not exceeding one year as may be specified in the order, and authorise any person (hereinafter referred to as the Authorised Controller), to take over the management of the institution for the said

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period.

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Provided that the Regional Deputy Director, Education, may where he considers it necessary or expedient so to do—

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(i) extend the said period from time to time, so however that the period so extended does not exceed five years in the aggregate; or

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(ii) revoke the order at any time :

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Provided further that nothing in clause (ii) of the preceding proviso shall bar the passing of a fresh order under this section.

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(4) On an order being made under sub-section (3), the Authorised Controller shall, to the exclusion of the management and subject only to directions if any of the Regional Deputy Director, Education, the Director of the State Government, exercise all the powers and perform all the functions of the management, including management of the property belonging to or vested in the institution and in particular operate singly the Bank Account referred to in Section 5 :

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Provided that nothing in the section shall be considered to confer on the Authorised Controller the power to transfer any such property (except by way of letting from month to month in the ordinary course of management) or to create any charge thereon (except as a condition of receipt of any grant-in-aid of the institution from the State Government).

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(5) Any order made or direction given under this section shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or instrument relating to the management and control of the institution or relating to the property belonging to or vested in the institution."

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A bare reading of the provisions quoted above indicates that what is conceived of, is that in case of default of the payment of salary it is Basic Education Officer who shall call the Management to consider its explanation and thereafter will take coercive measures and then refer the matter, if any, for appointment of authorised Controller. In the absence of any Committee of Management institution in the case in hand, I find it was incumbent duty cast upon the Basic Education Officer to take decision in the matter.

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Nobody can be deprived of the salary if he is discharging his duty continuously. The District Basis Education Officer should have directed for payment of salary of teachers in respect of whom there was no controversy and, therefore, there is some malicious exercise in terms of inaction on the part of the District Basic Education Officer in the matter is reflected which has emboldened the Finance and Accounts Officer to write such letter beyond the authority vested in law.

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In view of the above let the matter be examined by the

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Assistant Director (Basic Education), Allahabad. The petitioner is permitted to move to the Assistant Director of Education (Basic), Allahabad by moving an appropriate application within four weeks from today. The District Basic Education Officer shall forward the entire documents pertaining to whatever he is in his possession, service books etc. to the Director of Education Basic, Allahabad within a period of three weeks from today.

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Sri A.K. Singh, learned counsel representing District Basic Education Officer shall communicate alongwith this order to the third respondent for compliance by forwarding the papers to the Assistant Director (Basic Education) and the Assistant Director (Basic Education), Allahabad shall afford reasonable opportunity to the petitioner and the teachers concerned and shall take decision within a period of four weeks that is by 28.01.2019.

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Until then no action shall be taken on the reference made in the order dated 14.11.2018 issued by the Finance and Accounts Officer, Basic Shiksha Adhikari, Prayagraj impugned here in this writ petition.

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Accordingly, this writ petition is disposed of with the above observations and directions.

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Order Date :- 3.12.2018 Shahroz

Km. Aruna Sinha v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Km. Aruna Sinha v. State of U.P. and 3 Others

Case brief

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