Allowed

Seema Dabas and Another v. State of U.P. and 2 Others

Allahabad HC3 May 2019WRIA/26808/2018

Case brief

AI extract

What is this about?

Petitioners appointed as Assistant Teachers applied for salary from July 2018. Respondents withheld payment citing a State Government order requiring joining after April 1st. Court held statutory rules override executive orders and ordered salary payment.

What did the court decide?

Mandamus issued directing respondents to expedite payment of arrears and current salary within two months regarding Clause 12 of the impugned Government Order dated 25.7.2018.

Seema Dabas and Another Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 25 RESERVED

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Case :- WRIT - A No. - 26808 of 2018

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Petitioner :- Seema Dabas And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kailash Singh Kushwaha Counsel for Respondent :- C.S.C.,Mohammad Ali Ausaf,Nisheeth Yadav

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Hon'ble Prakash Padia,J.

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Heard Sri Kailash Singh Kushwaha, learned counsel for the petitioner, Sri Vijay Shanker Prasad, learned Standing Counsel for respondent no. 1, Sri Nisheeth Yadav, learned counsel for respondent no. 2 and Sri Mohd Ali Ausaf, learned counsel appearing for respondent no. 3.

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Affidavits have been exchanged between the parties and with the consent of learned counsel for the parties the petition is disposed of finally at the admission stage itself.

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The petitioners have preferred the present writ petition with the prayer to issue a mandamus commanding the respondents specially respondent no. 2-Finance & Accounts Officer (Basic Education), Varanasi to make payment of arrears of salary to the petitioners from 21.1.2018 till date and further to make payment of current salary as and when the same falls due. By way amendment which was allowed by this Court vide its order dated 22.1.2019 a further prayer was added viz. to quash the Government Order dated 25.7.2018 passed by the State Government.

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The facts in brief, as narrated in the writ petition are that the institution in question viz. Sri Ram Charit Manas Junior High School, Dilawalpur, Bhishampur, Sevapuri, Varanasi is a recognized and aided Junior High School. All the teachers and employees of the said institution were getting their salary from the State funds as per the provisions contemplated under U.P. Junior High Schools (Payment of

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Salaries of Teachers and other Employees) Act, 1978 and U.P. Recognized Basic Schools (Junior High School)(Recruitment and Condition of Service of Teachers) Rules, 1978.

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An advertisement was issued by the Manager of the institution on 3.7.2018 in two daily newspapers viz. Times of India and Sanmarg. By the aforesaid advertisement applications were invited from the eligible candidates against the two posts of Assistant Teachers. Since initially certain shortcomings were found in the advertisement a corrigendum was issued on 5.7.2018.

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The petitioner no.1 possess B.Sc. Degree along with B.Ed and Teacher Eligibility Certificate of Upper Primary School and petitioner no. 2 possess Graduation Degree along with B.Ed. and Teacher Eligibility Certificate of Upper Primary School. Both the petitioners along with other applicants duly applied pursuant to the aforesaid advertisement. Interview was held by the selection committee on 29.7.2018. The petitioners duly participated in the same along with other candidates. Name of petitioners were duly recommended by the Manager of the institution for the post in question. Ultimately papers were forwarded by the committee of management to the District Basic Education Officer for necessary approval of selection. After going through the papers forwarded by the institution approval was granted by the District Basic Education Officer on 16.8.2018. A copy of the same is appended as Annexure-3 to the writ petition.

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Both the petitioners were issued appointment letters by the manager of the institution in question on 18.8.2018. The petitioners joined the institution on 21.8.2018. The aforesaid information was already given by the institution to the respondent no. 2 in the prescribed proforma.

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After the aforesaid procedure was followed salary bills of the petitioners were also forwarded along with other teachers and

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employees in the office of the respondent no. 2 but wholly illegally although salary was paid in respect to all other teachers and employees, the salary of petitioners were not paid.

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It is further contended that respondent no. 2 also directed the manager of the institution in question to submit the salary bill of only four employees and not of the petitioners. Since the petitioners were not paid their salaries, they made several representations to the manager of the institution in question. Since no action was taken, the petitioners have preferred the present writ petition.

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A counter affidavit was filed by Sri Nisheeth Yadav on behalf of respondent no. 2-Finance & Accounts Officer of the District Basic Education Officer, Varanasi enclosing therewith a Government Order dated 25.7.2018 by which a time table in respect to appointment on the post of Principal and Assistant Teachers of a non governmental recognized Junior High Schools were prescribed. Clause 12 of the aforesaid Government Order specify that the newly appointed candidates over the post of Principal or Assistant Teacher in an institution would be allowed to join only after 1^st April of the academic session. Clause 12 of the above Government Order is quoted below-

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In paragraph 7 of the counter affidavit it is stated that on 13.12.2018, respondent no. 2 wrote a letter to the manager /principal of the institution highlighting the discrepancies on account of which salary to the petitioners could not be released. Apart from the same another letter was written by the respondent no. 2 on 18.12.2018 asking an explanation from the management that why in contravention of the Government Order dated 25.7.2018 joining was given to the petitioners.

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In this regard a letter dated 13.12.2018 was also brought on record which was written by the respondent no. 2 to the District Basic Education Officer asking instructions as to how the salary could be released to the petitioners since joining of the petitioners were made in violation of the Clause 12 of the Government Order dated 25.7.2018.

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Heard learned counsel for the parties.

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It was argued by Sri Kushwaha, learned counsel for the petitioners that once after following complete procedures prescribed under the Rules, appointment of the petitioners were made and that too after necessary approval was granted by the District Basic Education Officer, Varanasi vide its order dated 16.8.2018, petitioners became entitled for payment of their salary.

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It is further contended that the appointment of petitioners has been made as per the provisions contained under the U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 and as such once the approval was granted by the District Basic Education Officer, the Finance & Accounts Officer has absolutely no authority to withhold the salary of the petitioners.

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From careful reading of the provisions contained in the Act of 1978 and Rules framed there under viz. Rules of 1978, it is clear that statutory provisions were provided for recruitment and the District Basic Education Officer was described as the appropriate authority.

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From perusal of the provisions as contained in the above Act and Rules, it is clear that the Finance and Accounts Officer has absolutely no authority under the provisions of the aforesaid Act and Rules to take a decision regarding approval of teaching and nonteaching staff. Once the District Basic Education Officer has accorded approval and once it is found that the appointment/selection was made strictly after following due procedures, the Finance and

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Accounts Officer has no jurisdiction in the matter to withhold the salary of the teachers and employees as the case may be.

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In so far as the Government Order dated 25.7.2018 is concerned which was relied upon by the respondent no. 2 is concerned, it is settled law that the executive order/circulars could only supplement the provisions of the Act and cannot suppliant it.

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Learned counsel for the petitioner also relied upon the judgment of this Court in case of Committee of Management of Nehru Kissan Vidyalaya Jr. High School Vs. State of U.P. and 2 others reported in 2017(3) ADJ 503. The relevant part of the order reads thus-

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“It is admitted to the parties that the ban which was imposed by Government order dated 15 March 2012 was on account of the reason that at the relevant time, the exercise for re-determination of the sanctioned strength of the institution was being undertaken. Since the said exercise had been completed, therefore, the ban on appointment was lifted with the issuance of the Government order dated 6 November 2015. Rule 3 (2) contemplates filling of the vacancies within two months of the date when the vacancy comes into existence. The same could not be adhered to because of the ban imposed by the State itself. The circular letter of the Directorate dated 6 November 2015 clearly indicates the anxiety of the Directorate to ensure filling up of the vacant posts by the Management of the institutions, without any further delay, as these posts had remained vacant for considerable time on account of the ban imposed by the State. The circular letter dated 3 June 2016 merely extends the time frame within which the selection process was required to be complete, failing

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which the letter contemplates action being taken against the concerned District Basic Education Officer and the management. The object of the circular letter dated 3 June 2016, in the opinion of the Court, was to ensure expeditious completion of the selection process. There is no indication in the circular letter dated 3 June 2016 that in case selection process is not completed by the prescribed date, then the management is not entitled to fill up vacant posts. In such view of the matter, this Court is of the opinion that the impugned communications issued by the District Basic Education Officer, in so far as it declines permission to the management to advertise the vacant posts is wholly unsustainable in law and it is accordingly quashed. The matter is remitted back to the third respondent for reconsideration of the request of the management for granting approval to fill up the vacant posts. The aforesaid exercise shall be conducted by the third respondent within a period of six weeks from the date of production of a certified copy of this order.”

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In so far as the Government Order dated 25.7.2018 is concerned, it appears from perusal of the same that wholly illegally a time table has been issued by the State Government. Under the Act and the Rules framed by the State Government for appointment of teachers and employees, no such procedure has been prescribed. Even otherwise for example a post was fallen vacant in the month of January of a particular year even then the advertisement could not be made on or before July of that particular year and in that situation the institution as well as the students will suffer irreparable loss.

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Apart from the same in so far as the present case is concerned the proceedings in order to fill up the post in question were initiated

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by the institution by making an advertisement on 3^rd July, 2018. Since the proceedings were initiated before issuance of the aforesaid time table the same will not apply.

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It is important to note that in the present case the petitioners were appointed after approval was granted by the District Basic Education Officer and as such the circular, if any, issued in this regard by the State Government will not apply in the facts of the present case.

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In view of the above, the Court is of the opinion that non payment of salary to the petitioners is an arbitrary act on the part of the State.

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In the facts and circumstances of the case, a mandamus is issued directing the respondents to pass appropriate order in respect to payment of salary to the petitioners in terms of the observations made herein above and without taking into consideration Clause 12 of the Government Order dated 25^th July, 2018, expeditiously and preferably within a period of two months from the date a certified copy of this order is placed by the petitioner in the office of the respondent no. 2- Finance & Accounts Officer, Basic Education, Varanasi.

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The writ petition is disposed of.

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Order Date :- 03.05.2019 M.A.Ansari

Seema Dabas and Another v. State of U.P. and 2 Others

Case brief

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What did the court decide?

Seema Dabas and Another v. State of U.P. and 2 Others

Case brief

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