Allahabad High Court
Sahaj Kumar Singh (Inre 3007 S/S ... vs State Of U.P. Thru. Secretary ... on 6 September, 2016
Bench: Amreshwar Pratap Sahi, Vijay Laxmi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 1
Case :- SPECIAL APPEAL DEFECTIVE No. - 374 of 2016
Appellant :- Sahaj Kumar Singh (Inre 3007 S/S 2008)
Respondent :- State Of U.P. Thru. Secretary Madhyamik Education & 3 Others
Counsel for Appellant :- Pt. S. Chandra,Sanjay Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Dr. Vijay Laxmi,J.
Supplementary affidavit filed by the appellant is taken on record.
This appeal questions the correctness of the judgment of the learned Single Judge dated 17.5.2016, whereby the learned Single Judge has arrived at the conclusion that the appellant who was claiming salary on the post of Assistant Clerk in an Intermediate College governed by the provisions of the U.P. Intermediate Education Act, 1921 was not entitled for such salary as he was not working against any sanctioned post. The findings so recorded have not been successfully disputed before us and there is no order sanctioning the post as on the date when the appointment of the appellant was made.
The petitioner on filing of the petition was granted an interim order dated 30.05.2008, whereby the respondent No.3 was called upon to make payment of salary to the appellant. The appellant thereafter continued in service and also received the salary from State Funds.
Admittedly, the seventh post against which the appellant was claiming salary had not been sanctioned for which the Management had been continuously writing letters in order to sanction the said post which was permissible as per the norms fixed in this regard and also the Government Order dated 20.11.1977. The said claim of sanction of a 7th post may have been permissible, but the fact remains that the post was not sanctioned.
A supplementary affidavit has been filed before us bringing on record the order dated 30.3.2010 passed by the District Inspector of Schools as also the financial clearance dated 4.5.2016 to urge that after passing of the interim order by this Court, one post that had fallen vacant on 1.9.2008 and which was a sanctioned post, the appellant's continuance be adjusted against the same. The order dated 30.3.2010 clearly indicates the same. The arrears of salary were cleared and sanctioned by the Director of Education and the document in relation thereto has been filed as Annexure - 5 to the supplementary affidavit. It is thus clear that the appellant continued to receive salary from State Funds in the above circumstances.
The learned Single Judge has proceeded to dismiss the writ petition holding that there was no sanctioned post and has further proceeded to issue a direction that since the salary had been received under an interim order, the said retention of salary was not permissible which deserves to be recovered from the Committee of Management.
The appellant who has received the benefits of the said salary is before this Court contending that in effect, the recovery is being made on account of the salary received by the appellant and in such circumstances, the direction issued by the learned Single Judge be set aside.
Learned Standing Counsel submits that the payment of salary in an aided institution is governed by the U.P. High School and Intermediate College (Payment of Salary to Teachers and other Employees) Act, 1971 and the salary is to be paid under the aforesaid provisions of the Act against a sanctioned post and in the absence of any valid sanction, the mere adjustment of the petitioner-appellant against a subsequent vacant post would not amount to any such sanction.
The aforesaid argument of the learned Standing Counsel appears to be correct and we do not find any any reason to differ from the conclusion drawn by the learned Single Judge on this count at all.
Sri Chandra has relied on two judgments, namely, Udai Bhan Rai Vs State of U.P. and others [1994 (1) UPLBEC Page 210 (SC)] and the decision in the case of Jagdish Singh Vs State of U.P. [2006 (3) UPLBEC Page 2765]. The first judgment in Udai Bhan Rai's case in para 7 thereof categorically recorded the availability of a created and duly sanctioned post. The same therefore cannot come to the aid of the appellant as here admittedly there is no sanctioned post. The appellant was receiving salary only on the strength of the interim order dated 30.05.2008 as is evident from the recital of the order of the District Inspector of Schools dated 30.3.2010. The second judgment of Jagdish Singh (supra) is the procedure of appointment which would be relevant had there been a sanctioned post. The Full Bench judgment in the case of State of U.P. and others Vs Committee of Management Sukhpal Intermediate College and others [2015 (5) ADJ 1 (LB) (FB)] squarely holds that there can be no appointment or payment of salary from the State unless there is a sanctioned post. However, in view of the position that the appellant was treated to have been adjusted against a sanctioned post after 1.9.2008 that had fallen subsequently and has been paid salary thereafter, there does not appear to be any additional financial burden on the State against the sanctioned strength.
Consequently, to this extent, in the equitable exercise of jurisdiction under Article 226 of the Constitution of India and the peculiar facts of this case, we provide that the direction of the learned Single Judge to recover the salary does not appear to be sustainable. This is also equitable keeping in view the status of the appellant who in search of employment was trapped in this quagmire and the allurement of either the Management or the authorities of the Institution. Accordingly, the appellant should not be saddled with any such recovery as he must have received the amount as salary for not only his personal consumption but for the benefit of his entire family dependent on him.
Consequently, in view of the aforesaid reasons, we set aside the direction issued for recovery of the amount already paid and received by the appellant. However, the appellant shall not be entitled to any further salary or such emoluments or any benefits for the occupancy of the post in view of the reasons given by the learned Single Judge.
The appeal is partly allowed to the said extent.
Order Date :- 6.9.2016
lakshman
[Dr. Vijay Laxmi, J.] [Amreshwar Pratap Sahi, J.]
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C. M. Application No. 86877 of 2016
in re:
Case :- SPECIAL APPEAL DEFECTIVE No. - 374 of 2016
Appellant :- Sahaj Kumar Singh (Inre 3007 S/S 2008)
Respondent :- State Of U.P. Thru. Secretary Madhyamik Education & 3 Others
Counsel for Appellant :- Pt. S. Chandra,Sanjay Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Dr. Vijay Laxmi,J.
Heard learned Counsel for the appellant and perused the affidavit filed in support of the delay condonation application.
Having found the cause to be sufficient and keeping in view the status and nature of the job of the appellant, there is likelihood of miscarriage of justice and therefore, we find it in the interest of justice to condone the delay.
Accordingly, the delay condonation application is allowed and the delay in filing the Special Appeal is condoned.
The appeal shall be treated to be within time.
Order Date :- 6.9.2016
lakshman
[Dr. Vijay Laxmi, J.] [Amreshwar Pratap Sahi, J.]
