Smt. Prabhawati Mishra v. Dr. Mahendra Dev, Director of Education Secondary Education U.P. Lko.

Allahabad HC30 May 2024CAPL/2256/2024

Case brief

AI extract

What is this about?

Contempt application alleging willful disobedience of writ court orders directing reconsideration of a retired teacher's claim for selection grade, promotional pay scale, ACP and pensionary benefits. The court rejected the Director's earlier affidavit of compliance as non-compliant and directed personal appearance with charge framing if compliance is not shown.

What did the court decide?

Affidavit of compliance rejected; respondent directed to appear in person on next date and to file fresh affidavit of compliance, failing which charges to be framed.

Smt. Prabhawati Mishra vs Dr. Mahendra Dev, Director of… — Contempt of Court | Allahabad HC (2024)

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Court No. - 17

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Case :- CONTEMPT APPLICATION (CIVIL) No. - 2256 of 2024

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Applicant :- Smt. Prabhawati Mishra Opposite Party :- Dr. Mahendra Dev, Director Of Education Secondary Education U.P. Lko. Counsel for Applicant :- Manjeet Singh

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Hon'ble Rajeev Singh,J.

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1. Reply/objection to the affidavit of compliance filed by learned counsel for the applicant is taken on record.

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2. Heard.

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3. The instant contempt application has been filed for punishing the respondent for willful disobedience of order dated 02.11.2023 as well as corrected order dated 22.11.2023 passed in Writ-A No. 4881 of 2022.

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4. Learned counsel for the applicant submits that as the grievance of the applicant was not being considered by the competent authority, Writ Petition No. 9759 of 2017 was filed, which was disposed of on 04.05.2017 with the direction to the applicant to make representation before the competent authority and the competent authority was also directed to take decision on the representation of the applicant within a period of two months from the date of certified copy of the order is produced. He further submits that the representation of the applicant was rejected by the Mr. Amarnath Verma, Director Secondary Education on 01.08.2017 with the observation that the institution, in which the applicant was working, came in grant-in-aid for the years 1965 to 1968 and the grant-in-aid facility was also given for the library and with permission of university, premises of the institution was shifted. Thereafter, grant-in-aid was suspended, which was again allowed by the State Government vide order dated 08.11.2011 with the condition that the dues for the suspended period of grant-in-aid would not be paid to the institution. He next submits that the affidavits were also given by the management as well as teachers that they would not claim arrears of the salary for the said period. He also submits that the aforesaid order dated 01.08.2017 was challenged before this Court in the Writ Petition No. 5453 of 2018 which was partly allowed on 15.07.2021 by setting aside order dated 01.08.2017 (supra) and a writ of mandamus was issued to the competent authority to pass fresh order regarding the claim of the petitioner for payment of selection grade, promotional pay scale, ACP and consequential fixation.

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5. The order dated 15.07.2021 passed in Writ Petition No. 5453 (S/S) of 2018 is as under:-

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"Heard Sri Manjeet Singh, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Sri Ajeet Kumar Mishra, learned counsel for respondent no.5.

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By means of the present petition, the petitioner has prayed for the following reliefs:-

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"i) Issue a writ or direction in the nature of Certiorari quashing the impugned order dated 01.8.2017 passed by the opp. party no.2/Director of Education (Secondary Education) U.P. 18- park road Lucknow as contained in Annexure No.1 to this Writ Petition.

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ii) Issue a writ or direction in the nature of mandamus commanding to the opp. Parties to grant the petitioner the selection grade, promotional pay scale and third A.C.P as per the Governments Orders issued from time to time by counting the services of the petitioner w.e.f. 01.03.1978.

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iii) Issue a writ or direction in the nature of mandamus commanding to the opp. Parties to make fixation of the salary correctly after adding annual increments w.e.f. 01.03.1978 and pay the same along with arrears immediately.

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iv) Issue a writ or direction in the nature of mandamus commanding to the opp. Parties to get deposit the G.P.F amount from the petitioner w.e.f. 1978 to 2014 and the opp. parties may also deposited their share in the account of the petitioner.

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iv.a.) Issue a writ or direction in the nature of mandamas commanding to the opp. Parties to make arrears of salary the petitioner w.e.f. 01.03.1978 till revival of the grant-in-aid of the Institution along with interest.

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v) Issue a writ or direction in the nature of any manner which deem just and proper in the circumstances of the case."

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The case set forth by the petitioner is that there is an Institution running in the name of Raj Guru Shri Krishan Pandey Sangved Sanskrit Uchhattar Madhayamik Vidyalaya Shastri Nagar Belha, District Pratapgarh. The Institution was having a recognition from Class 6 to 12 and had also been taken in grant-in-aid from Class 7 to 12 in the year 1966 itself. The petitioner claims to have been appointed on 28.02.1978 as Assistant Teacher in the Institution and submitted his joining and started working. The appointment of the petitioner was also provisionally approved on 16.03.1980 by an order passed by the Inspector Sanskrit Pathshala, Lucknow, a copy of which is Annexure-4 to the writ petition. As the Institution was running in a rented building and subsequent thereto on account of non-availability of the rented building at Allahabad a decision was taken by the Committee of Management i.e. respondent no.5 for transferring the Institution to Pratapgarh. The said proposal was also sent to the University and permission was obtained from the University for transfer of the Institution from Allahabad to Pratapgarh. However, when the Institution was transferred from Allahabad to Pratapgarh the grant-in-aid was suspended by the State Government in the year 1979. After the Institution started running at Pratapgarh various

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requests were sent by the Institution for revival of grant-in-aid which was revived by the Government vide order dated 08.11.2011, a copy of which is Annexure-8 to the writ petition. However, the grant-in-aid was granted with a specific condition that for the period when grantin-aid remained suspended, no arrears would be given to the teachers working in the said Institution. It was also required that an affidavit in this regard would be taken from the teachers. The petitioner along with others gave their affidavits in this regard and therefore the grantin-aid came into effect from 08.11.2011. The petitioner claims to have retired from service on 31.07.2018.

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Learned counsel for the petitioner contends that despite the petitioner having retired, the other dues have still not been paid to him like selection grade, promotional pay scale and third A.C.P. as per Government Orders issued from time to time by counting the services of the petitioner w.e.f. the date of his appointment i.e. 01.03.1978. He also submits that no increments have been granted during the aforesaid period when the Institution was not in grant-in-aid.

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Being aggrieved, the petitioner had approached this Court by filing Writ Petition No.9759 (SS) of 2017 in re: Ghanshyam Mishra vs. State of U.P. and others, which was disposed of vide order dated 04.05.2017 with a direction to the respondents to decide the representation of the petitioner.

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In pursuance thereof, the Deputy Director of Education (Sanskrit), Allahabad i.e. respondent no.3 has proceeded to pass the impugned order dated 01.08.2017, a copy of which is Annexure-1 to the writ petition, whereby placing reliance on the conditional revival of grantin-aid through order dated 08.11.2011, it has been contended that as the petitioner and others submitted affidavits whereby they waived off their right for arrears consequently they are not entitled for any payment from the State exchequer from the respondents. Being aggrieved, present petition has been filed.

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Learned counsel for the petitioner contends that even if grant-in-aid was revived conditionally i.e. the petitioner and others had given affidavits of not claiming any arrears for the period the Institution was not in grant-in-aid consequently the same would only be restricted to payment of arrears and there would not be any impediment in the grant of notional fixation of pay by counting the increments which was due to the petitioner, the ACP benefits which were due in terms of the relevant government orders, grant of promotional pay scale and the selection grade. Learned counsel for the petitioner argues that taken at its face value, the order dated 08.11.2011 can only restrict the arrears of pay and does not talk about restriction of other benefits as may be admissible to the petitioner and consequently such bald rejection by means of a blanket order placing reliance on the order dated 08.11.2011 is clearly unsustainable in the eyes of law.

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On the other hand, learned Standing Counsel on the basis of averments contained in the counter affidavit argues that once grantin-aid of the Institution which was suspended since 1978 was only revived in November, 2011 by means of order dated 08.11.2011 and that too conditionally hence no arrears would be payable to the

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petitioner for which he has already given an affidavit consequently at this stage the petitioner cannot be allowed to stake his claim for payment of benefits as have been set forth in the present petition.

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Having heard learned counsel for the parties and having perused the records, what is apparent is that grant-in-aid in the Institution was suspended in the year 1978. The petitioner had been working as Assistant Teacher in the Institution and has retired in July 2018. The grant-in-aid of the Institution was revived through an order dated 08.11.2011 with a specific condition that no arrears for the period the Institution remained without grant-in-aid would be payable to the teachers. The petitioner has retired in July, 2018 and has staked his claim for payment of selection grade, promotional pay scale, third ACP in accordance with relevant government orders as well as fixation of salary by paying annual increments w.e.f. 01.03.1978.

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A perusal of the impugned order dated 01.08.2017 by which the claim of the petitioner has been rejected indicates that the respondents have placed reliance on the order dated 08.11.2011 i.e. the order whereby no arrears were required to be paid to the teachers for the period the Institution remained without grant-in-aid. The order is thus not explicit that the other dues, may be on notional basis, as stand due or would have fallen due from the period 1978 to 2011 would not be paid. The impugned order is completely silent on this aspect of the matter. Even the order dated 08.11.2011 by which grant-in-aid has been revived is also silent on this point.

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Taking into consideration the aforesaid discussions, the writ petition is partly allowed. A writ of certiorari is issued quashing the order dated 01.08.2017 passed by respondent no.2, a copy of which is Annexure-1 to the writ petition. A writ of mandamus is issued commanding respondent no.2 to pass a fresh order regarding the claim of the petitioner for payment of selection grade, promotional pay scale, ACP and consequential fixation considering the fact that the order dated 08.11.2011 only speaks about non-payment of arrears to the teachers. Let a fresh order be passed as per rules within a period of three months from the date of receipt of a certified copy of this order."

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6. Further submission of learned counsel for the applicant is that the claim of the applicant was again rejected by Mr. Vinay Kumar Pandey, Director Secondary Education vide order dated 06.01.2022 in the same manner as such the Contempt Application Civil No. 2103 of 2021 was filed, in which, the order was passed for framing of charge on 8.02.2022.

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7. The order dated 8.02.2022 passed in Contempt Application (Civil) No. 2103 of 2021 is as under:-

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"1, Heard Sri Manjeet Singh, learned counsel for the petitioner as well as Sri Mohit Jauhari for the contemnor - opposite party.

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2. Sri Mohit Jauhari has submitted that a detailed order dated 6.1.2022 has been passed by Director of Education (Madhyamic), Uttar Pradesh thereby disposing of the representation of the petitioner

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as directed by the writ Court.

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3. Sri Manjeet Singh, on the other hand, submits that a perusal of the order passed by the opposite party would indicate that they have neither applied their mind nor even considered the case of the applicant in accordance with the directions of the writ Court dated 15.7.2021 passed in writ petition No.5453 (S/S) of 2018 by which the earlier order rejecting the claim of selection grade, promotional pay scale, ACP was set aside. A direction was issued to the respondents to consider the case of the petitioner again. A perusal of the order dated 6.1.2022 would indicate that the case of the petitioner has been rejected solely on the ground that no fresh grounds have been taken by him which were taken by him apart from the grounds raised by him at the time when his case was rejected earlier. Considering the order passed by the respondent it is clear that they have not considered the case of the petitioner in term of the order passed by the writ Court dated 15.7.2021. This Court is of the opinion that the respondents have not complied the orders of the writ Court and the order dated 6.1.2022, which is not in terms with the order of the writ Court.

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4. At this stage, Sri Mohit Jauhari submits that sometime may be granted to the respondents to revisit their order dated 6.1.2022.

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5. After hearing learned counsel for the parties this Court is of the considered view that the order of the writ Court has not been complied.

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6. List this case on 16.3.2022, on which date, in case, the order of the writ Court dated 15.7.2021 is not complied in its letter and spirit, the respondent shall appear in person before this Court for framing of charges."

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8. Further submission of learned counsel for the applicant is that Mr. Vinay Kumar Pandey, Director Secondary Education passed an order dated 14.03.2022 rejecting the representation of the applicant by saying that the applicant has not completed his minimum qualifying regular service, but it is not disputed that the applicant was appointed in the institution on 28.02.1978 and the said order was challenged by the applicant in Writ-A No. 4881 of 2022 which was allowed on 02.11.2023.

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9. The order dated 02.11.2023 passed in Writ-A No. 4881 of 2022 is as under:-

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"1. Heard learned counsel for the petitioner and learned Standing counsel appearing on behalf of the State-respondents.

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2. Instant writ petition has been filed praying for the following main reliefs:-

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(i) Issue a writ or direction in the nature of certiorari quashing the impugned order dated 14.03.2022 passed by the Opp. Party no. 2/ Director of Education (Secondary) U.P. 18- Park Road, Lucknow as contained in Annexure No. 1 to this writ petition.

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(ii) Issue a writ or direction in the nature of mandamus commanding to the opposite parties to grant the selection grade, promotional pay scale and annual increments including other benefits to the petitioner which is legally entitle by him even on notional basis w.e.f 01.03.1973 till 08.11.2011.

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(iii) Issue a writ, or direction in the nature of mandamus commanding to the opposite parties to make correct fixation of the salary w.e.f 08.11.2011 after adding all the service benefits on notional basis w.e.f 01.03.1978 and pay the same along with arrears of salary to the petitioner w.e.f 08.11.2011 till the date of increment i.e 30.06.2018.

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(iv) Issue a writ, order or direction in the nature of mandamus commanding to the opposite parties to make payment of the pension to the petitioner w.e.ef 30.06.2018 and thereafter regularly each and every month.

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3. Bereft of unnecessary details, the facts of the case are that there is an Institution running in the name of Raj Guru Shri Krishan Pandey Sangved Sanskrit Uchhattar Madhayamik Vidyalaya Shastri Nagar Belha, District Pratapgarh (Hereinafter referred to as "Institution"). The Institution was having a recognition from Class 6 to 12 and had also been taken in grant-in-aid from Class 7 to 12 in the year 1966 itself. The petitioner claims to have been appointed on 28.02.1978 as Assistant Teacher in the Institution and submitted his joining and started working. The appointment of the petitioner was also provisionally approved on 16.03.1980 by an order passed by the Inspector Sanskrit Pathshala, Lucknow, a copy of which is Annexure-4 to the writ petition. As the Institution was running in a rented building and subsequent thereto on account of non-availability of the rented building at Allahabad, a decision was taken by the Committee of Management i.e. respondent no.5 for transferring the Institution to Pratapgarh. The said proposal was also sent to the University and permission was obtained from the University for transfer of the Institution from Allahabad to Pratapgarh. However, when the Institution was transferred the grant-in-aid was suspended by the State Government in the year 1979. After the Institution started running at Pratapgarh, various requests were sent by the Institution for revival of grant-in-aid which was revived by the Government vide order dated 08.11.2011, a copy of which is Annexure-9 to the writ petition. However, the grant-in-aid was granted with a specific condition that for the period when grant-in-aid remained suspended, no arrears would be given to the teachers working in the said Institution. It was also required that an affidavit in this regard would be taken from the teachers. The petitioner along with others gave their affidavits in this regard and thereafter the grant-in-aid came into effect from 08.11.2011. The petitioner claims to have retired from service on 31.07.2018.

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4. As the petitioner, despite having retired, was not paid the dues like selection grade, promotional pay scale and third ACP as per Government orders issued from time to time by counting the service of the petitioner w.e.f the date of his appointment i.e 01.03.1978 and neither the increments were granted for the said period, the petitioner approached this Court by filing Writ Petition No. 9759 (SS) of 2017 Inre; Ghanshyam Mishra Vs. State of U.P and Ors which was

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disposed of vide order dated 04.05.2017 with the direction to the respondents to decide the representation of the petitioner.

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5. In pursuance thereof, the claim of the petitioner was considered but rejected vide order dated 01.08.2017, a copy of which is annexure 18 to the writ petition.

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6. Being aggrieved, the petitioner filed Writ Petition No. 5453 (SS) of 2018 Inre; Ghanshyam Mishra Vs. State of U.P and Ors. This Court vide judgment and order dated 15.07.2021, a copy of which is annexure 19 to the writ petition partly allowed the writ petition by setting aside the rejection order dated 01.08.2017 and required the respondents to pass a fresh order regarding the claim of the petitioner for payment of selection grade, promotional pay scale, ACP and consequential fixation.

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7. In pursuance thereof, the respondents have rejected the claim of the petitioner vide order impugned dated 14.03.2022, a copy of which is annexure 1 to the writ petition.

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8. Raising a challenge to the aforesaid order, the instant writ petition has been filed.

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9. The contention of learned counsel for the petitioner is that when the respondents themselves vide order dated 08.11.2011 had revived the grant-in-aid but the revival was granted with the specific condition that for the period when grant-in-aid remain suspended, no arrears would be given to the teachers working in the said institution and that affidavit was duly given by the petitioner along with several others, which fact has not been denied by the respondents while passing the order impugned consequently, not counting the period of service of the petitioner right since 1978 till the revival of the grant-in-aid as made vide order 08.11.2011 would be contrary to the order dated 08.11.2011 itself more particularly when by the said order, it is only the arrears of pay which were required to be not paid to the petitioner and other teachers who were working in the said institution without any stipulation of not counting the service for the interregnum.

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10. Elaborating the same, the argument of learned counsel for the petitioner is that a perusal of the order dated 08.11.2011 would itself indicate that though the grant-in-aid was revived yet it was the earlier grant-in-aid which had been revived (Punarjivit) and the respondents consciously indicated that no arrears would be payable for the aforesaid period meaning thereby that the intention while passing the order of revival was only to restrict the payment of arrears and not to restrict counting of the entire period of service rendered by the staff of the said institution from 1978 till the year 2011.

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11. So far as non grant of the benefits which the petitioner has claimed i.e the benefit of selection grade, promotional pay scale and third ACP, the argument of learned counsel for the petitioner is that obviously when the entire service rendered by the petitioner since his appointment in the year 1978 till his retirement on 31.07.2018 is counted only then the petitioner would be entitled for the aforesaid benefits.

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12. On the other hand, learned Standing counsel on the basis of averments contained in the counter affidavit has supported the order impugned. The contention is that when the revival of grant-in-aid had only been made vide order dated 08.11.2011 explicitly providing that the staff would not be entitled for the arrears of pay consequently, no error has been committed by the respondents in not granting the benefits of the entire period of service rendered by the petitioner more particularly when the order dated 08.11.2011 still stands good as of date and has also not been challenged by the petitioner.

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13. It is further contended that the benefits claimed by the petitioner i.e selection grade, ACP etc, would only fructify upon completion of ten years of satisfactory service while the promotional pay scale is made admissible only on completion of 12 years of satisfactory service which the petitioner did not have at the time of retirement in the year 2018 and consequently, the petitioner is not entitled for the benefits as have been prayed for by him.

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14. Heard the learned counsel appearing for the contesting parties and perused the records.

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15. From the arguments as raised by the learned counsel appearing on behalf of the contesting parties and perusal of records it emerges that the grant-in-aid of the institution was suspended in the year 1979. The petitioner had been working as Assistant Teacher in the institution right since 1978 and retired in July, 2018. The grant-in-aid of the institution was revived through an order dated 08.11.2011 with the specific condition that no arrears for the period the institution remained without grant-in-aid would be payable to the teachers. All the teachers gave an affidavit in this regard indicating that they would not claim any arrear of salary for the aforesaid period. When the petitioner was not paid the other benefits by counting entire period of service rendered right since the year 1978 till the year 2018 initially he filed a writ petition which was disposed of with the direction to the respondents to decide the representation of the petitioner. Subsequent thereto, the respondents rejected the claim of the petitioner vide order dated 01.08.2017 on the ground that through the order dated 08.11.2011 only a conditional revival of the grant-in-aid had been made which provided that the teachers would not be entitled for arrears of salary and consequently, the petitioner would not be entitled for any benefits. The said order was challenged by filing Writ Petition No. 5453 (SS) of 2018 which petition was partly allowed vide order dated 15.07.2021 and the respondents were directed to consider the claim of the petitioner for grant of selection grade, promotional pay scale, ACP and consequential fixation.

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16. Again, the respondents have rejected the claim of the petitioner vide impugned order dated 14.03.2022 by contending that as the revival of grant-in-aid order dated 08.11.2011 explicitly provided that the teachers would not be entitled for arrears of pay consequently, the period of service of the petitioner from 1978 till revival of grant-in-aid vide order dated 08.11.2011 would not be countable for any purpose and as benefit of selection grade and other benefits is subject to the petitioner having ten years of qualifying service, which the petitioner has not completed, consequently he is not entitled for any benefits.

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17. However, a perusal of the order impugned would indicate that the respondents have missed the fine print as indicated in the order dated 08.11.2011. A perusal of the order dated 08.11.2011 would indicate that though the respondents have revived the grant-in-aid with immediate effect but the grant-in-aid has been ?revived? meaning thereby that the grant-in-aid which had been granted earlier and which stood suspended stood revived vide order dated 08.11.2011. Another aspect of the matter is that through the order dated 08.11.2011, the respondents have only restricted the arrears for the aforesaid period. The order dated 08.11.2011 does not restrict the counting of service of the teachers for the period the institution remained in animated suspension i.e since 1978 till it being ?revived? vide order dated 08.11.2011. Once the order dated 08.11.2011 itself did not explicitly restrict the counting of the service from 1978 till the ?revival? of the suspended grant-in-aid consequently, no stipulation or restriction which is not contained in the order dated 08.11.2011 could have been read by the respondents while rejecting the claim of the petitioner for grant of the aforesaid benefits.

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18. Keeping in view the aforesaid discussion, the writ petition deserves to be allowed and is allowed. A writ of certiorari is issued quashing the order dated 14.03.2022 passed by the respondent no. 2, a copy of which is annexure 1 to the writ petition. The respondent no. 2 is directed to pass a fresh order keeping in view the discussion made above pertaining to grant of selection grade, promotional pay scale, annual increments and other benefits including pensionary benefits to the petitioner keeping in view the discussion made above.

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19. Let an order be passed within a period of eight weeks from the date of receipt of a certified copy of this order."

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10. Further submission of learned counsel for the applicant is that as the order dated 02.11.2023 was not complied with, the present contempt application is filed. It is lastly submitted that the respondent authority rejected the claim of the applicant in the same manner on 28.02.2024 ignoring the observations made by the Writ Court in the said order.

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11. Shri Amrendra Singh, learned Standing Counsel appearing for the respondent submits that the order of the Writ Court is already complied with.

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12. Considering the submissions of learned counsel for the parties and going through the contents of the orders discussed above passed by Director Secondary Education on different dates, it is evident that all the orders passed by the Director Secondary Education are almost identical in manner. It is also evident that considering all the facts and circumstances, detail order was passed by the Writ Court on 02.11.2023, but the observations made by the Writ Court were not read properly by the respondent before passing his decision.

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Accordingly, affidavit of compliance filed earlier by Dr. Mahendra Dev, Director Secondary Education is hereby rejected .

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13. List this case on 13.08.2024.

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14. The respondent shall appear in person before this Court on the next date of listing.

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15. In the meantime, it is open to the respondent to revisit his order and fresh affidavit of compliance be filed by him, failing which, charge shall be framed against him on the next date of listing.

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Order Date :- 1.8.2024 Arpan

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

Smt. Prabhawati Mishra v. Dr. Mahendra Dev, Director of Education Secondary Education U.P. Lko.

Case brief

What is this about?

What did the court decide?

Smt. Prabhawati Mishra v. Dr. Mahendra Dev, Director of Education Secondary Education U.P. Lko.

Case brief

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What did the court decide?

What the court decided

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