Allahabad High Court
Shri Balji Tewari vs State Of U.P. & Others on 7 April, 2011
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 28
Case :- WRIT - C No. - 15202 of 2004
Petitioner :- Shri Balji Tewari
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Rahul Chaturvedi
Respondent Counsel :- C.S.C.
Hon'ble Sudhir Agarwal,J.
Heard learned counsel for the parties and perused the record.
The order impugned in this writ petition is passed by the Addl. District Judge, Mathura holding that petitioner suit No.292 of 1990 is not maintainable in view of Section 6 of U.P. Public Service Tribunal Act, 1976 (hereinafter referred to as "Act 1976")on the ground that the petitioner is a teacher in an aided private school but since the liability for payment of salary lie upon State Government, therefore, is a holder of a civil post and is a "public servant" as defined under Section 2(b) of the Act therefore the suit is not maintainable.
It is contended that the logic and reasoning assigned by revisional court is wholly misconceived and is contrary to law.
In my view, the submission is well founded and the impugned order cannot be sustained. The term "public servant" as defined in Section 2(b) of the Act, reads as under:
'Public servant' means every person in the service or pay of-
(i) the State Government; or
(ii) a local authority not being a Cantonment Board; or
(iii) any other corporation owned or controlled by the State
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Government (including any company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty per cent of paid up share capital is held by the State Government) but does not include-
(1) a person in the pay or service of any other company ; or
(2) a member of the All India Services or other Central Services."
It talks of a public servant in the service or pay of the State Government. The salary paid to a teacher of an aided institution is actually salary paid by the College itself pursuant to the aid received from State Government. By virtue of the provision of Payment of Salary Act, the responsibility to ensure salary to teaching staff is on the Government for which tuition fee to the extent provided in the Act is deposited by the College in the State Exchequer. The employer of the teacher is Committee of Management of the School and salary is paid to the teacher by the College and not by Government. The revisional Court has completely misdirected itself in holding the petitioner a 'public servant'. Therefore the impugned order cannot sustain.
The writ petition is allowed. The impugned order dated 15th November, 2003 passed by Addl. District Judge, Mathura (Annexure 9 to the writ petition) is set set aside.
However since the suit was filed in 1995, it needs be decided expeditiously. I order accordingly.
At this stage learned Standing Counsel stated that in the matter of educational institutions, even otherwise a civil suit is barred by the provisions of Intermediate Education Act, 1921 and other relevant statutes.
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Since this aspect of the matter has not been considered and decided by the Court below, this Court is not expressing any opinion on the issue and leave it open to the trial Court to consider the maintainability of the suit in the light of the provisions of Intermediate Education Act, 1921 and such other provision, as may be referred to by the parties concerned before it. This judgment shall not be construed to expressing any opinion on this aspect of the matter.
Order Date :- 7.4.2011
KA
