Allowed

Sunil Kumar Singh and Others v. State of U.P. and Others

Allahabad HC20 Mar 2018WRIA/53716/2007

Case brief

AI extract

What is this about?

Court set aside an appellate order that perpetuated an interim salary order without adjudicating the merits due to pendency of earlier petitions. It directed clubbing of all Writ Petitions spanning 2000 and 2007. Petitions were allowed based on Special Appeal judgments, granting salary arrears and reinstatement to petitioners appointed on sanctioned posts.

What did the court decide?

Writ petitions allowed. Government orders quashed. Petitioners entitled to reinstatement within six weeks, arrears of salary, and current salary payment.

Sunil Kumar Singh and Others Vs State of… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 28

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Case :- WRIT - A No. - 53716 of 2007

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Petitioner :- Sunil Kumar Singh And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- A.K. Pandey,Prem Chand Srivastava,Sanjay Kumar Singh,Shashi Nandan Counsel for Respondent :- C.S.C.

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with

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Case :- WRIT - A No. - 51427 of 2000

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Petitioner :- Jagdish Singh & Others Respondent :- Distt.Inspector Of Schools Kushinagar & Others Counsel for Petitioner :- R.C.Dwivedi Counsel for Respondent :- C.S.C.

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with

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Case :- WRIT - A No. - 50971 of 2000

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Petitioner :- Sunil Kumar Singh & Others Respondent :- D.I.O.S. & Others Counsel for Petitioner :- R.C. Dwivedi,O.P. Singh Sikarwar Counsel for Respondent :- C.S.C.

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Hon'ble Siddharth,J.

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Heard Sri R. C. Dwivedi, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

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By means of Writ-A No.53716 of 2007 , the petitioners have prayed for quashing of the impugned order dated 10.10.2007, passed by the respondent no.1 (Annexure No.19 to the writ petition), by which the salary of the petitioners had been stopped.

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The facts giving rise to the present writ petition are that the petitioner nos. 1 to 5 were appointed on 02.7.1998 and the petitioner nos. 6 to 8 were appointed on 02.7.1996 as Assistant Teachers in attached Primary Section of Jitendra Smarak Inter College Narainpur Kothi Shankar Pathkhauli, District Kushi Nagar (hereinafter referred as institution). The petitioner no.3 was subsequently promoted in L.T. Grade, which has been approved by the Regional Committee on 22.8.2007. The appointment of the petitioners have been duly approved by the District Inspector of Schools, Kushi Nagar on different dates and on the basis of such approval, the payment of salary was being regularly made to each one of the petitioners. However, subsequently an order was

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passed by the then District Inspector of Schools on 9.11.2000 for stopping the salary of the petitioner nos. 1 to 5. The petitioners no.1 to 5 filed a Writ Petition No.50971 of 2000 in which an interim order was passed on 24.11.2000 in their favour. In pursuance of the said interim order the petitioner nos. 1 to 5 were paid their salary and they are still receiving their salary month to month. It has been averred in the writ petition that the said writ petition is still pending. As regard to the petitioner nos. 6, 7 and 8, similar order was passed by the District Inspector of Schools on 9.11.2000, which was also challenged by them in a separate Writ Petition no.51427 of 2000 and on 28.11.2000 the interim order was also passed in their favour. In pursuance to the order, they are working and are being paid their regular salary. The District Inspector of Schools had also passed a separate order in respect of petitioner no.9. The respondent no.9 filed Writ Petition No.250 of 2001 in which the interim order was passed and he is also receiving his salary month to month. By the impugned order dated 10.10.2007 the petitioners' salary has been stopped.

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By the order dated 12.5.2015 the Writ Petition No.53716 of 2017 was allowed by this Court. A Special Appeal No.267 of 2016 was preferred by the State-respondents against the judgement dated 12.05.2015 of the Writ Court and the following order was passed on 24.08.2017 :-

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" This intra Court appeal is directed against the judgment order of the learned Single Judge dated 12.5.2015 passed in writ petition No. 53716 of 2007. On a simple reading of the facts as mentioned in the judgment and order of the learned Single Judge, we find that so far as the petitioner Nos. 1 to 5 are concerned they were working under an interim order passed by the High Court dated 24.11.2000 in Writ No. 50971 of 2000, they were being paid salary in terms thereof. Petitioner Nos. 6 to 8 had filed writ petition No. 51427 of 2000 wherein an interim order was granted dated 28.11.2000 with reference to which they were being paid salary. Similarly petitioner No. 9 had filed writ petition No. 250 of 2001 wherein an interim order was granted therein and he was being paid salary in terms thereof.

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Under an order dated 27.7.2007, the payment of salary to teachers was stopped because of illegal appointments having been made in the District Kushinagar pending enquiry.

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A fresh writ petition was filed by the 9 petitioners being writ No. 53716 of 2007 questioning the stoppage of their salary.

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The learned Single Judge has been pleased to allow the writ petition even after noticing the pendency of the earlier writ petitions, which are apparently pending before this Court for last 17 years as on date.

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The right of the petitioners to continue and to get their salary from state exchequer is squarely dependant on the outcome of the aforesaid three writ petitions of the year 2000. Therefore, the minimum required from the writ Court was to have clubbed all the writ petitions and to have decided the same together. Adjudication of the main controversy in the writ petition of the year 2000, would

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have settled the right of continuance and payment of salary of the writ petitioners finally.

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In our opinion, the order in appeal before us has the effect of perpetuating the continuance of an interim order for decades together and has the effect of merits of the right claim by the petitioner being not examined by this Court despite pending of writ petition in that regard for 17 years.

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We are of the considered opinion, that the learned Single Judge should have clubbed the writ petition No. 53716 of 2007 only with writ petitions of the year 2000 and should have decided them together"

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Accordingly, the order of the writ Court dated 12.5.2015 is hereby set aide, let the writ petition No. 53716 of 2007, writ petition 50971 of 2000, writ petition 51427 of 2000 and writ petition No. 250 of 2001 be clubbed and placed before the writ Court in the second week of September, 2017. Parties are at liberty to exchange their affidavits by that date. We request the writ Court to decide the writ petitions at the earliest possible without granting any unnecessary adjournment to either of the parties. Respondent No. 9 at liberty to seek deletion of his name from the array of the parties by making of an application before the writ Court.

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The present Special Appeal is allowed.

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In compliance of the above order the record of writ petition nos. 50971 of 2000, 51427 of 2000 and 250 of 2001 were connected with Writ Petition No.53176 of 2017 and they are being heard together.

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The brief facts of the Writ Petition No.50791 of 2000 are that in Jitendra Smarak Inter College Narainpur Kothi Shankar Pathkhauli, District Kushi Nagar, a recognised and aided institution having permanent recognition of primary school, the petitioners were appointed as Assistant Teachers on 02.07.1998. The appointments of the petitioners were in accordance with the procedure provided under the Intermediate Education Act. However, their salary were not paid despite various representations and therefore, the petitioners filed Civil Misc. Writ Petition No.35128 of 1999, which was disposed of by order dated 08.08.1999 directing the District Inspector of Schools to consider and take decision on the papers forwarded by the Committee of Management relating to the payment of salaries of the petitioners in the light of the Government Order dated 06.09.1989, whereby the institution of the petitioners came within the purview of U.P. Act No.24 of 1971. The District Inspector of Schools by his order dated 30.10.1999 granted financial approval to the appointments of the petitioners and the petitioners started getting their salary. However, when the new District Inspector of Schools, Sri Gyan Prakash Shukla, took over charge he stopped the salary of the petitioners by the order dated 09.11.2000 stating that the appointments of the petitioners have been found to be prima facie irregular and therefore, their salary are being stopped. No

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instance of violation of any provision of U.P. Intermediate Education Act or any other Law was stated in the impugned order, which was passed without any opportunity of hearing to the petitioners. From the order dated 09.11.2000 of the District Inspector of Schools, it appears that some Enquiry Committee was constituted, which conducted some enquiry behind back of the petitioners and on the basis of such enquiry report, the impugned order dated 09.11.2000 was passed. Learned counsel for the petitioners has argued that the District Inspector of Schools had no power to review his own order nor he could have passed the order without giving opportunity of hearing to the petitioners. There was no fraud or misrepresentation alleged on the part of the petitioners which may have compelled the District Inspector of Schools to review his own order. The earlier order dated 30.10.1999 was passed in favour of the petitioners as per the law and they prayed that the impugned order dated 09.11.2000 passed by the District Inspector of Schools, Kushinagar may be quashed.

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A counter affidavit was filed by the District Inspector of Schools, Kushinagar stating that the appointment of the petitioners were not made against any sanctioned post. In the primary section of the institution there was no adequate building infrastructure nor requisite student strength which may have warranted fresh appointments. The appointments were surplus, were made without making any advertisement and were fraudulent and based on fabricated documents. The earlier District Inspector of Schools made collusive appointments of the petitioners as per the Government Order dated 06.09.89.. Only those teachers were entitled to payment of salary whose appointment was made prior to 01.10.1989. There was no prescribed students and teachers ratio and adequate infrastructure in the institution. The petitioners got the order dated 18.08.1999 from the High Court in Writ Petition No.31528 of 1999 on the basis of fabricated documents and incorrect facts and their salary was also released accordingly by the earlier District Inspector of Schools. Numerous complaints were received. Preliminary enquiry revealed corruption and irregularities and therefore, the impugned order dated 09.11.2000 was passed by him for protecting the misuse of public money.

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The petitioners have filed a supplementary affidavit in their writ petition bringing on record the judgement dated 07.01.2014 passed in Special Appeal No.59 of 2010, which was filed by similarly situated Assistant Teachers

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like the petitioners, whose salary were also stopped by the District Inspector of Schools, Kushinagar by different impugned orders and the writ petitions were dismissed. The Special appeal Court by the judgement dated 07.1.2014 set aside the judgements of the Writ Court and directed payment of salary of those teachers who were appointed against sanctioned posts in respect of whom financial sanction was given. By a separate order 14 teachers, who were directed to be adjusted in other colleges in the District by the Government order dated 17.02.2004, were directed to represent their case before the State Government.

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In view of the decision of the Special Appeal Court dated 07.01.2014 passed in Special Appeal No.59 of 2010 the impugned order dated 09.11.2000 passed by District Inspector of Schools, Kushinagar is hereby quashed. Hence the Writ Petition No.50971 of 2000 stands allowed .

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The facts of the Writ Petition No.51427 of 2000 are similar to the facts of the Writ Petition No.50971 of 2000 and it is also allowed in terms of the judgment passed in Writ Petition No.50971 of 2000.

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Writ petition No.250 of 2001 has already been allowed by this Court by order dated 01.07.2014 and therefore, no orders are required to be passed therein. The order dated 01.07.2014 is reproduced below :-

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"The State has filed an affidavit of compliance in pursuance of the order passed by this Court on 9.5.2014 and it has been stated in paragraph no.12 of the supplementary counter affidavit that the petitioner comes under the purview of the order dated 7.1.2014 passed in Special Appeal No.59 of 2010.

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Thus, the petitioner is entitled to the benefit of the relief granted under the Special Appeal No.59 of 2010.

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This Writ Petition is thus, allowed in those terms"

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Now coming back to Writ-A No.53716 of 2007, the brief facts are that this writ petition has been filed by the petitioners praying for quashing of the order dated 10.10.2007 passed by the Principal Secretary, Education Department, Lucknow whereby the payment of salary of the petitioners was stopped on account of the order passed in Civil Misc. Writ Petition No.61998 of 2006 - Dinesh Kumar Gautam Vs. State of U.P. and another.

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The petitioners no.1 to 8 were appointed as Assistant Teacher in Primary Section of Jitendra Smarak Inter

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College Narainpur Kothi, Shanker Pathkhauli, District Kushi Nagar between 1994-1998 and their appointments were approved by the District Inspector of Schools, Kushi Nagar between 1999 to 2000 and salary was being paid to them after granting of financial sanction. The District Inspector of Schools stayed the payment of the salary of the petitioners by his order dated 09.10.2000 and challenging the same two Writ Petition Nos.51427 of 2000 and 50971 of 2000 were filed before this Court and interim orders were granted staying their operation and the petitioners were paid their salary till the impugned order dated 10.10.2007 was passed by the Principal Secretary of the Education Department directing that salary of the petitioners should be stopped.

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The petitioners have approached this Court challenging the order dated 10.10.2007 passed by the Principal Secretary, Education Department, Lucknow.

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By the impugned order dated 10.10.2007 the salary of number of similarly situated teachers were directed to be stopped. Number of writ petitions were filed before this Court and some writ petitions were dismissed by the order dated 04.12.2009 by this Court. The order dated 04.12.2009 was assailed before the Special Appeal Court by way of Special Appeal Nos.59 of 2010, 60 of 2010, 61 of 2010 and 62 of 2010. All the appeals were allowed by the composite order dated 07.01.2014 and the Government order dated 27.07.2007, whereby the appointments of the petitioners in those cases were cancelled like that of the petitioners, was set aside. The Special Appeal Court directed that the teachers, who were appointed on sanctioned post and in respect of whom financial approval were given, were entitled to continue and draw their salary. Regarding other petitioners directions were made for representing their case before the State Government and after due verification for their appointments decision were directed to be taken.

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The petitioners case is that in pursuance of the judgment of the Special Appeal Court dated 07.01.2014 passed in Special Appeal No.59 of 2010 since their appointments were on sanctioned posts and financial approval were granted to their appointments they are entitled to continue and draw salary.

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In view of the above facts emerging from the record, it is clear that the Government Order dated 10.10.2007 which was similar to the Government order dated 27.07.2007

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was set aside by the Special Appeal Court in Special Appeal No.59 of 2010 by the order dated 7.1.2014. In view of the above, the impugned Government order dated 10.10.2007 is also quashed. The petitioners are held entitled to the arrears of salary and reinstatement in service within a period of six weeks from the date of presentation of a certified copy of this order before the District Inspector of Schools, Kushi Nagar. Petitioners shall also be paid their current salary in accordance with law.

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The instructions dated 19.01.2018 produced by the learned Standing Counsel are taken on record.

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Writ petition no.53716 of 2007 also stands allowed.

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In view of the judgment of the Special Appeal Court dated 24.08.2017 passed in Special Appeal No.267 of 2016 all the writ petitions have been decided together by this Court.

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Order Date :- 20.3.2018 SS

Sunil Kumar Singh and Others v. State of U.P. and Others

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Sunil Kumar Singh and Others v. State of U.P. and Others

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