Disposed

Smt. Prem Kumari Rai and Another v. State of U.P. and Others

Allahabad HC6 Aug 2018WRIA/41805/2008

Case brief

AI extract

What is this about?

Ameen death petion for salary from State exchequer was allowed by the court. The court held that the authorities had not considered earlier appointment facts or eligibility of private respondents and remanded the matter for fresh decision after hearing.

What did the court decide?

Mandamus issued to respondent no. 2 to execute directions for fresh hearing and reasoned order within four months; impugned order quashed.

Smt. Prem Kumari Rai and Another Vs State… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 28

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Case :- WRIT - A No. - 41805 of 2008 Petitioner :- Smt. Prem Kumari Rai & Another Respondent :- State Of U.P. & Others Counsel for Petitioner :- V.K.Upadhyay,G.Baghel,Ganga Prasad,S.K.Upadhyay Counsel for Respondent :- C.S.C.,K.S.Kushwaha,P.N.Ojha,R.B. Pradhan

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Hon'ble Ajay Bhanot,J.

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The petitioners claim to have been appointed as Assistant Teacher in Yashoda Shivkali Balika Vidyalaya, Rewatipur, District Ghazipur (hereinafter referred as institution) in the year 1993. The institution was brought under grant-in-aid in the year 2006.

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The names of the petitioners were not included in the managerial return sent by the Committee of Management for obtaining approval under the Payment of Salaries Act. Aggrieved the petitioners instituted a writ petition before this court. The writ petition was registered as Writ Petition No.19333 of 2008, Prem Kumari Rai and another Vs. State of U.P. and others. The writ petition was disposed of by judgment and order dated 15.4.2008 remitting the matter to the respondent authorities.

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In pursuance of the said order dated 15.4.2008 passed by this court, the respondent no.3 has passed the order dated 26.6.2008 rejecting the claim of the petitioners for grant of salary from the State exchequer. Petitioners are aggrieved by the order dated 26.6.2008 passed by the respondent no.3 and they have assailed the same in the instant writ petition.

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The petitioners' case for grant of salary from the public exchequer was rejected on the ground that the petitioners have not been working against sanctioned posts. The sanctioned posts in the institution are summarized in a tabulated form

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hereunder:-

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Name of Post	Vacancy
Head Mistress	1
Teachers	4
Clerk	1
Peon	1

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The stand of the Committee of Management before the respondent no.2 was that approval for sanction of additional posts have been sought but the same has not been forthcoming. The petitioners are not functioning against the sanctioned posts. Consequently the petitioners cannot be paid their salary.

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Sri S. K. Upadhyaya, learned counsel for the petitioners submits that the claim of the petitioners is that the private respondents were not functioning as a teachers at the time when the institution came under grant-in-aid. The private respondents are not eligible to be appointed on the posts on which they are functioning and drawing their salary. The continuity of service of petitioners w.e.f. 1993 and the approval accorded to their appointment by the order dated 19.6.1999 by the District Basic Education Officer, Ghazipur, has been overlooked.

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Sri P. N. Ojha, learned counsel for the respondent no.5 submits that the private respondents were teaching in the aforesaid institution since 1992. The manager had forwarded the true and authentic list of the teachers working against sanctioned posts in the institution, on the basis of seniority and in his managerial return after the institution was brought under

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grant-in-aid. The managerial list included the private respondents. The petitioners were not shown in the managerial list sent pursuant to the order bringing the institution within the purview of grant-in-aid. Consequently, the petitioners are not entitled to their salary from the State exchequer.

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Heard Sri S. K. Upadhyaya, learned counsel for the petitioners, Sri P. N. Ojha, learned counsel for the respondent no.5, learned Standing Counsel for the State. None appears for the respondents no.6 to 9.

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The names of the petitioners were not approved by the competent authority for grant of salary under the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred as Act).

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The petitioner being aggrieved by the denial of their salary had earlier approached this court by instituting a Writ Petition. The said writ petition was registered as Writ Petition No.19333 of 2008, Prem Kumari Rai and another Vs. State of U.P. and others. The aforesaid writ petition was disposed of by judgement and order dated 15.4.2008. The operative portion of the judgement is extracted hereunder:-

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“Heard learned counsel for the petitioner, learned Standing counsel appearing on behalf of respondent nos.1 and 3, Sri K. S. Kushwaha for respondent nos.2 and 4 and perused the record.

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The grievance of the petitioners who are two in numbers is that they were appointed as assistant teacher in Yashoda Shivkali Balika Vidyalaya, Rewatipur, Ghazipur. According to the petitioners the institution has been brought in grant in aid list and the manager and the committee of management while sending the managerial return did not include the name of the petitioners as assistant teacher in the institution and hence the petitioners have been deprived of their salary although they were appointed in the institution in the year 1993 and their appointments were approved by the Basic Shiksha Adhikari on 19.6.1999. According to the petitioners, they were entitled for the names being included in the managerial return and hence they have filed this writ petition for the relief mentioned therein. Learned counsel for the petitioners has

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placed reliance on the order dated 18.10.2006 passed in writ petition no.57868 of 2006 Tilak Singh Vs. State of U.P. and others to state that the Additional Director of Education (Basic) Varanasi Region, Varanasi would be competent to consider the grievance of the petitioners since it relates to ascertainment of various factual aspects which have been ignored while sending the names and excluding the names of the petitioners.

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Learned counsel for the respondents states that the claim of the petitioners is mainly against the committee of management wherein the committee of management has not sent the names of the petitioners in the managerial list. Therefore, it would be appropriate that Additional Director of Education (Basic) Varanasi Region, Varanasi who would be competent to resolve the grievance of the petitioners should consider the same.

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In view of the aforesaid submissions it is provided that in case the petitioners file a true copy of this writ petition, its annexures alongwith a certified copy of this order within 15 days from today before respondent no.3 to this writ petition, respondent no.3 should proceed to consider the grievance of the petitioners after affording opportunity to the petitioners as also committee of management preferably within a period of two months from such date.

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It is made clear that this court has not expressed its opinion on the merit of the claim made by the petitioner in this writ petition.

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The writ petition is finally disposed of. No order is passed as to costs.”

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The mandate of the order dated 15.4.2008 passed by this court has not been carried out in its true spirit in the impugned order. A perusal of the impugned order dated 26.6.2008 discloses that the respondent no.2 has accepted the stand taken by the management in its entirety. However, the claim raised by the petitioners regarding the appointment of the private respondents, in the year 1992 and the approval by the competent authority in the year 1999 has not been considered.

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The case of the petitioners that the respondent no.9, Sarita Rai is not eligible to be appointed as Principal being niece of the Manager of the aforesaid institution has also been completely overlooked.

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In such view of the matter the interest of justice would be sub-served by remanding the matter to the respondent

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authorities and permitting the petitioner to raise all the issues before the authorities by submitting a fresh representation. The petitioners shall submit a fresh representation containing all their grievances before the respondent no.2 along-with supporting documents and testimonial. The respondent no.2 shall put the Committee of Management of the said institution as well as private respondents and all other necessary parties to notice. The parties shall exchange the pleadings in support of their respective stands.

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The mandamus is issued to the respondent no.2 to execute the following directions :-

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(I) The respondent no.3 shall decide the controversy afresh in accordance with law after giving an opportunity of hearing to the petitioners as well as respondent no.5 and the private respondents and any other necessary parties.

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(II) The respondent no.3 shall pass a reasoned and speaking order within a period of four months from the date of submission of certified copy of this order along-with fresh copy of the representation.

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(III) The order dated 26.6.2008 shall abide by the final decision taken by the respondent no.3 in pursuance of this order.

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The Court has not gone into the veracity of the assertions in the writ petition nor has the claim of the petitioner been judged on merits. It is for the competent authority to do so after independent application of mind.

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With the aforesaid directions, the writ petition stands disposed of.

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Order Date :- 6.8.2018

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Pramod

Smt. Prem Kumari Rai and Another v. State of U.P. and Others

Case brief

What is this about?

What did the court decide?

Smt. Prem Kumari Rai and Another v. State of U.P. and Others

Case brief

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What the court decided

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