Kapil Dev Yadav And Others vs State Of U.P. And Others
2013 Latest Caselaw 2200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 38
 
Civil Misc. Writ Petition No. 16279 of 2011
 
Kapil Dev Yadav and others					.....  Petitioners	
 
Vs
 
State of U.P. and others						.....  Respondents
 

 
Hon. Arun Tandon, J.

The petitioners, who are 6 in number, seek quashing of the order of the Director of Education, Secondary dated 02.12.2010.

The facts in short, as on record, are as follows:

Samrat Ashok Uchchattar Madhyamik Vidyalaya Karhana, District Sant Kabir Nagar is a recognized and aided High School. The provisions of the U.P. Intermediate Education Act and those of U.P. Act No. 24 of 1971 are fully applicable to the teachers and staff of the said institution.

According to the petitioner the said institution was initially established as a Junior High School and it was receiving reimbursement grant from the State Government. On 01.07.1978 the institution was brought within the preview of U.P. Junior High School (Payment of Salaries to the Teachers and Other Employees) Act, 1978 (hereinafter referred to as 'Act of 1978'). It is then stated that the institution was granted recognition as a High School in the academic session 1974-75 and that it has been brought on grant-in-aid at the High School level w.e.f. 01.01.1981. As a result whereof U.P. Act No. 24 of 1971 has become applicable to the teachers and staff of the institution.

Petitioners no. 1 and 2 claim to have been appointed as Assistant Teacher in the institution, while petitioners no. 3 to 6 claim to have been appointed as Class-IV employee. According to the petitioners such appointments have been made in the year 1968 so far as petitioners no. 1, 2, 3, 5 and 6 are concerned. Petitioner no. 4 has been appointed on 01st July, 1976. It is stated that all the petitioners have retired from the service.

It is admitted in paragraph 11 that no salary was ever sanctioned or disbursed in favour of the petitioners under the Act of 1978. In paragraph 12 it is stated that the petitioners were compelled to file Civil Suit No. 144 of 1981 along with other plaintiffs (Laxmi Narain Pandey & Others vs. Committee of Management, Samrat Ashok Uchchattar Madhyamik Vidyalaya, Basti & Others) in the Court of Munsif, Bansi, District, Sant Kabir Nagar. In the said suit initially a temporary injunction was granted. On 03rd July, 1982 issue no. 3 was decided and it was held that the Munsif Bansi has no jurisdiction to decide the suit. Therefore, the plaint was returned for presentation before appropriate Court.

Not being satisfied the plaintiffs filed Civil Misc. Appeal No. 67 of 1992, which was allowed on 31.07.92. The District Judge after setting aside the order dated 13.07.1982 required the trial court to decide the issue of territorial jurisdiction, and as to whether the suit was barred by provision of Section 49 of the Specific Relief Act or the provisions of Act No. 6 of 1976.

The Munsif is stated to have decided the issue no. 3 again on 21.02.1998 and it was held that the Munsif had the jurisdiction to try the suit.

It is worthwhile to record that the Principal was impleaded as defendant no. 3, the District Inspector of Schools, Basti was impleaded as defendant no. 4, District Basic Education Officer, Basti was impleaded as defendant no. 5. Deputy Director of Education, 7th Region, Gorakhpur was impleaded as defendant no. 6, State of U.P. through District Magistrate was impleaded as defendant no. 7 and Director of Education, Allahabad was impleaded as defendant no. 8, Committee of Management and the Manager of the institution were impleaded as defendant nos. 1 and 2 respectively.

It is worthwhile to reproduce the relief as was prayed for in the said suit, which reads as follows:

"v& U;k;ky; }kjk izfroknhx.k dks U;k;ky; ds LFkk;h fo"ks/kKk }kjk fu"ksf/kr fd;k tkos fd oknhx.k dks vius vius in ij dk;Z djus esa ck/kk ok vMpu u Mkys vkSj oknhx.k dk osru egxkbZ HkRrk vkfn fu;ekuqdwy fu/kkZfjr izi+= ij nsrs jgsA

c& U;k;ky; ls O;; okn Hkh x.k dks fnyk;k tkosA

l& U;k;ky; ls ftl vU; vi"ke dk oknhx.k vf/kdkjh gks og Hkh oknhx.k dks fnyk;k tkosA "

From a simple reading of the aforesaid reliefs, it is apparent that permanent injunction was prayed for against all the defendants to the suit including the District Inspector of Schools, the State of U.P. and other education authorities.

In the said suit a compromise application was filed jointly signed by the plaintiffs and by defendant nos. 1, 2 and 3. It was further stated in the application made that the suit be decided on the basis of the compromise and that no relief is being pressed against defendant nos. 4 to 8 in view of the letter of the District Inspector of Schools dated 19th July, 1983. Therefore the plaintiffs may be permitted to forgo their relief against the said defendant nos. 4 to 8.

Despite said facts having been noticed in the order by the Civil Judge (JD), Siddharthnagar dated 24th August, 2007, surprisingly in the operative portion it was recorded that the suit is being decreed in toto in terms of the compromise. The operative part of the order dated 24th August, 2007 is being quoted below:

"izkFkZuk i= 808d ,Mhthlh dh vkifRr ds dkj.k eq0 [email protected]& : gtsZ ij Lohd`fr fd;k tkrk gS okn lqygukesa dkxt la[;k 764d ds vk/kkj ij fu.kZr fd;k tkrk gS i=koyh fu;ekduqlkj nkf[ky nQrj gksA"

It is this order which became the basis for salary being drawn by the petitioners from the State Exchequer. A complaint was made to this Court by one Suresh Chandra, that the petitioners are illegally getting salary from the State Exchequer in excess of the sanctioned post and qua their appointment no procedure known to law had been followed, by means of Writ Petition No. 31921 of 2010. The Court directed the matter to be examined by the Director, Secondary Education vide order dated 28.05.2010.

The Director of Education in compliance to the order of this Court has examined the issue of payment of salary to the petitioners. It has been categorically recorded that the petitioners were appointed in excess of the sanctioned post in the institution. They were being paid salary only because of the judgment of the Munsif, Basti passed in Suit No. 144 of 1981. It has been further recorded that 25 employees, who were working in the institution since prior to the same being brought on grant-in-aid, were legal and valid and were being paid salary. The appointment of the petitioners along with other plaintiffs have been declared to be illegal in excess of sanctioned post. Therefore a direction has been issued under order dated 02.12.2010 for recovery of the entire salary, which had been drawn by the plaintiffs on the strength of the order passed by the Civil Court, referred to above.

This Court made a pointed query from the counsel for the petitioner that once they had withdrawn the relief which was prayed against the State authorities i. e. defendant nos. 4 to 8 in the suit filed by them, being Original Suit No. 144 of 1981, under which statutory provision they became entitled to salary, no reply could be given. It is the case of the petitioners that they were entitled to salary in terms of the compromise decree dated 24th August, 2007 and they have been paid salary accordingly.

Admittedly, payment of salary has been made to the petitioners because of the said judgment in Suit No. 144 of 1981 dated 24th August, 2007.

In my opinion the claim set up by the petitioners is hopelessly misconceived. They had already forgone the relief against defendant nos. 4 to 8 i. e. State authorities by withdrawing the relief against them. If the management of the institution had entered into any compromise with the petitioners, they become entitled to salary from the management alone and not from the State respondents or from the State Exchequer. Further it could not be demonstrated before this Court that the petitioners are working against sanctioned post or their appointments have been made after following the procedure known to law.

In the totality of the circumstances on record, this Court finds no good ground to interfere with the order of the Director of Education. There is no merit in the petition.

Writ petition is dismissed.

This Court will record that the concerned Munsif, while deciding the suit in terms of the compromise, had noticed that the plaintiffs themselves had prayed that the relief as against defendant nos. 4 to 8 be permitted to be withdrawn, however he did not record any such fact in the operative portion of the order and decreed the suit in toto. This has resulted in public money being withdrawn by the plaintiffs on the basis of the said judgment.

This Court, therefore, recommends that a copy of this order as well as order passed by the Munsif at the relevant time be placed before the Administrative Judge, Jalaun for his consideration and, if required, for suitable action being recommended against the judicial officer, who is posted at present in the Judgeship of Jalaun at Orai.

16.05.2013

Pkb/16279-11