Allowed

Radhey Shyam Mishra v. State of U.P. through Secy. Basic Edu. Deptt. Lko and Others

Allahabad HC2 May 2023WRIA/3586/2020

Case brief

AI extract

What is this about?

The court held that the petitioner, appointed in 1974 and never having had his appointment declared void, is entitled to arrears of salary and retirement benefits as a trained teacher under Section 6 of the 1978 Act, directing payment within four months.

What did the court decide?

Arrears of salary as a trained teacher and other retiral benefits to be computed and paid within four months.

Radhey Shyam Mishra Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2023)

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Court No. - 17

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Case :- WRIT - A No. - 3586 of 2020

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Petitioner :- Radhey Shyam Mishra Respondent :- State Of U.P. Through Secy. Basic Edu. Deptt. Lko And Others Counsel for Petitioner :- Rajeiu Kumar Tripathi,Bharat Lal Mishra Counsel for Respondent :- C.S.C.,Vindhwashni Kumar

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Hon'ble Pankaj Bhatia,J.

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Heard learned counsel for the petitioner and learned Standing Counsel and Shri Vindhwashni Kumar, learned counsel for the respondent no.3.

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The present petition has been filed by the petitioner alleging that he was appointed as an Assistant Teacher in the Institution known as Shri Ayodhya Prasad Bachchoo Lal Laghu Madhyamik Vidyalaya, Bangaon, Tarabganj, District - Gonda, which was an aided Junior High School and managed by opposite party no.6. The said Institution was recognized subsequently in the year 1980. The Institution/School was taken under the grant in aid list and the petitioner was being paid the trained pay scale of an Assistant Teacher. On 06.05.1985 the opposite party no.3 issued a notice stating therein that the petitioner was not entitled to the payment of salary payable on a trained pay scale. The petitioner filed a suit for mandatory injunction, which was decreed on 23.01.1989 directing the respondents, including the respondent no.3 herein to continue to pay the trained pay scale to the petitioner. In pursuance to the said ex parte decree, the petitioner was paid the trained pay scale. Subsequently on 06.09.1994 the State Government issued a Government Order stating that all the untrained teacher, who had completed 10 years of continuous service as on 01.09.1994 shall be given exemption from training, if only two years are left for their retirement. The petitioner claimed the benefit of the said Government Order as he was appointed on 20.08.1974 and completed 10 years of experience on 19.08.1984. The opposite party no.4, however, passed an order stating that the petitioner was not

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entitled for the scale payable to the trained teacher vide the order dated 27.02.2009. The said order was challenged by the petitioner by preferring Writ Petition No.4368 of 2009, which was disposed off on 30.07.2009 directing the respondents to decide the representation. In pursuance to the said order, an order came to be passed on 06.10.2009 rejecting claim of the petitioner. The petitioner preferred the Writ Petition No.382 of 2011, whereby the order passed by the opposite party was quashed and the matter was remanded back to take a decision in the light of the Government Order 21.10.1994. In terms of the order of remand passed by the High Court on 04.07.2011, no decision was taken, as such, a contempt petition was preferred. In said contempt petition, it was demonstrated that a fresh order dated 04.10.2011 has been passed against the petitioner, as such challenging the said fresh order the petitioner once again filed a fresh Writ Petition No.5269 of 2012. In the said petition an interim order dated 03.10.2012 was passed directing the payment of salary to the petitioner as an interim measure and in pursuance thereof the petitioner was paid the salary in intervals, however, he was not paid the entire salary. In the meanwhile, the petitioner retired on 30.06.2015 as such the Writ Petition No.5269 of 2012, was rendered infructuous. However, directions were issued to the respondents to consider the claim of the petitioner with regard to the arrears of salary, provident fund as retiral dues etc.

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In response to the said order, part payment of dues was paid to the petitioner, however, the other claims were rejected vide order dated 31.03.2016, which was challenged once again by the petitioner by filing Writ Petition No.11878 of 2016. During the course of hearing of the said writ petition, the petitioner was directed to furnish copy of the certificate issued to the petitioner while passing the Intermediate Drawing Grade Examination, 1973 issued by the Government of Maharashtra, however, the petitioner was not in possession of the original certificate as such he furnished the duplicate certificate. The

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Writ Petition No.11878 of 2016 was disposed off directing the opposite parties to verify the certificate submitted by the petitioner. Once again, as no. decision was taken, the petitioner preferred Contempt Petition No. 920 of 2019. Ultimately, an order came to be passed on 10.01.2020 rejecting the claim of the petitioner holding that the certificate submitted by the petitioner alleged to be issued by the Intermediate Drawing Grade Examination, 1973, was found to be a forged certificate and as such the claim of the petitioner for payment of salary and other retirement dues was not made out. In fact, directions were issued for lodging of the FIR against the petitioner and for recovery of dues paid to the petitioner. The said order is under challenged in the present writ petition.

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The contention of the counsel for the petitioner is that at the time of appointment of the petitioner, in the year 1974, the eligibility requirements were specified in the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions of Service of Teachers) Rules, 1978, wherein the requirement for appointment at that period was Intermediate and B.T.C. The petitioner had the qualification of Intermediate and a certificate issued by the Intermediate Drawing Grade Examination, 1973, which according to the petitioner is equivalent to the B.T.C. Certificate. In support of the said, the counsel for the petitioner relies upon a question and answer issued by the respondents, wherein the issue with regard to a certificate issued by the Intermediate Drawing Grade Examination, 1973, State of Maharashtra was held to be treated as a training certificate. In the light of the said, the submission of the counsel for the petitioner is under:-

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(i) The petitioner possesses the training certificate issued by the I.G.T.E., 1973, Maharashtra, which according to him, is in pursuance to the guidelines issued by the Government and is equivalent to B.T.C.

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(ii) As the petitioner had spent more than 10 years and had teaching

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experience, the petitioner was entitled to the benefit of the Government Order 06.09.1994 and 21.10.1994.

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(iii) He argues that no order of termination or cancellation of the appointment of the petitioner has ever been passed against the petitioner either before his retirement or after his retirement as such, the stopping of the salary as well as the other retiral dues is without any authority of law.

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(iv) The manner in which the certificate issued to the petitioner by the Examination Authority of State of Maharashtra has held to be forged, is wholly arbitrary and illegal inasmuch as the same is solely on the basis of estimation, that the certificate granted to the petitioner has been held to be bad in law.

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Learned counsel for the respondents in turn argues that initial appointment of the petitioner itself was void ab initio as the certificate of training produced by the petitioner and relied upon by him was found to be a forged order in view of the finding recorded in the order dated 10.01.2020. He further argues that the petitioner was paid the salary, in pursuance to a mandatory injunction passed by the Munsif and no way did the respondent accept the certificate of training submitted by the petitioner to be a genuine certificate. He further argues that the appointment which is based upon a forged document is a void ab initio and no equity can go in favour of the petitioner. He further argues that the findings of fact recorded in the order dated 10.01.2020 cannot be interfered with in exercise of power under Article 226 of the Constitution of India. He further argues that in the impugned order it has been recorded that the document submitted by the petitioner shows his Seat No.382 whereas in the inspection report submitted through registered post, the Seat No.582 is inscribed. He further argues that the certificate submitted by the petitioner, prima facie appeared to be sent from some post office at Lucknow which is not possible as the certificate was issued by an authority located at

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Maharashtra.

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In the light of the submissions as recorded above, what emerges is that the petitioner had obtained the appointment in the year 1974 based upon the certificate issued by the Chairman of Art, Examination Committee, the State of Maharashtra and claimed to be a professional a training certificate finding equivalence in the State of Uttar Pradesh. What further emerges that the appointment of the petitioner was approved and the petitioner was initially paid his salary as a trained teacher. What further emerges is that no order cancelling the appointment of the petitioner has ever been passed prior to his date of superannuation or subsequent to the date of superannuation. Above facts are admitted across the Bar. It is further admitted that the payment of salary to the petitioner is governed by the Uttar Pradesh Junior High School (Payment of Salaries of Teachers and Other Employees) Act, 1978, according to which it is mandatory for the incumbent to be paid the salary on the post appointed. In view of the mandate of the Act of 1978, a mandate is cast upon the State to pay the salary in accordance with law and in fact Section 6 of the said Act provides adequate power to implement the said mandate of payment of salary to the teachers and other employees appointed under the Act. Once the said Act is in force, the only logical conclusion is that the persons appointed would continue to get the salary to which they are entitled. The mandate passed by the 1978 Act, would come to an end only when the appointment is held to be void or illegal or irregular or in any way, the same is set aside in accordance with law. There being nothing on record to demonstrate that the appointment granted to the petitioner, and duly approved was at any point of time declared to be a void and illegal appointment till the time of his superannuation in the year 2015 or at any point subsequent thereto. Once the appointment of the petitioner is not under cloud and no order has been passed declaring his appointment to be bad in law for any reasons whatsoever, the necessary consequence of the payment of salary and

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the other benefit including the retirement benefits have to follow. Thus, on that reasoning alone, the writ petition is liable to be allowed . The petitioner shall be paid the arrears, to which he was entitled as a trained teacher including the arrears which were not paid to the petitioner and the other retiral benefits. The arrears shall be computed and paid to the petitioner within a period of four months from today.

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Needless to say that the petitioner would be entitled to all retiral benefits in accordance with law. The necessary action shall be taken within a period of four months.

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The petition stands disposed of .

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Order Date :- 2.5.2023 KR

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Digitally signed by :- RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Radhey Shyam Mishra v. State of U.P. through Secy. Basic Edu. Deptt. Lko and Others

Case brief

What is this about?

What did the court decide?

Radhey Shyam Mishra v. State of U.P. through Secy. Basic Edu. Deptt. Lko and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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