Ram Avtar Katiyar vs State Of U.P. Thru Secy. And Others
2018 Latest Caselaw 3268 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 40
 

 
Case :- WRIT - C No. - 11900 of 2012
 

 
Petitioner :- Ram Avtar Katiyar
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Counsel for Petitioner :- P.K. Dubey,Dharampal Singh,S. Niranjan
 
Counsel for Respondent :- C.S.C.,S.K. Singh
 

 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Harsh Kumar,J.

Heard Shri Dharampal Singh, learned counsel for the petitioner, learned standing counsel for respondents no.1 to 6.  No one has appeared on behalf of respondents no.7 to 9.

The writ petition challenges the citation of recovery as well as the recovery certificate issued by the Collector and District Inspector of Schools respectively for recovering an amount of Rs.2,29,344/- as the salary which the State was compelled to pay on account of the institution not having permitted the respondent no.7 to join in the institution as the duly selected Principal by the U.P. Secondary Education Service Selection Board.

The controversy in short is as to whether such recovery of the salary due to the selected candidate can be made from the Manager personally or from the institution or the parent society which has established it.

Section 17 of U.P. Secondary Education Service Selection Board Act, 1982 is extracted herein under :-

"17. Inquiry by Director. - (1) Where any person is entitled to be appointed as a teacher in any institution in accordance with [Chapter II], but he is not so appointed by the management within the time provided therefor, he may apply to the Director or any officer authorised by him for a direction under subsection (2).

(2) [As far as may be within one month from the date of receipt] of an application under sub-section (1), the Director or the officer authorised by him may hold an inquiry, and if he is satisfied that the management has failed to appoint the applicant as a teacher, in contravention of the provisions of this Act, he may, by order, direct -

(a) the management to appoint the applicant as a teacher forthwith, and to pay him salary from the date specified in the order; and

(b) the Head of the Institution concerned to take work from him as a teacher.

(3) The amount of salary, if any, due to such teacher shall, on a certificate issued by the Director or the officer authorised by him, be recoverable by the Collector as arrears of land revenue from the property belonging to or vested in the society or body running the institution."

According to sub section (3) of Section 17, the amount of salary, if any, due has been made recoverable by the Collector as arrears of land revenue "from the property belonging to or vested in the society or body running the institution"

The legislative intent therefore is nowhere in doubt that the recovery has to be made as if it is a charge on the property belonging to or vested in the society or the body, running the institution. It is not a charge personally on any office bearer of the society or the management. There is no ambiguity in the prescription aforesaid.

The petitioner admittedly was the Manager of the institution at the time when this dispute arose and according to the respondents, the recovery had to be made from the petitioner who was the Manager of the institution.

We have perused the written instructions received by the learned standing counsel on behalf of the respondent District Inspector of Schools.

A Division Bench of this Court had passed a detailed interim order dated 15.3.2012 that is extracted herein under :-

"We have heard Shri D.P. Singh, Sr. Advocate assisted by Shri P.K. Dubey for the petitioner.

Learned Standing Counsel has received instructions from the District Inspector of Schools, Rama Bai Nagar. The petitioner is aggrieved by recovery certificate sent by the District Inspector of Schools, Rama Bai Nagar, and purportedly addressed to the District Magistrate for recovering Rs.2,29,344/- towards arrears of salary of Shri Narendra Prakash Jian, who was appointed by U.P. Secondary Education Service Selection Board, and recommended for appointment as a Principal of the Gram Vikas Inter College, Budhauli, Rama Bai Nagar. He was not allowed to take charge on the ground that he was not eligible to be selected. A number of writ petitions were filed in the matter by the second person on the panel namely Shri Ram Tirth Katiyar, who was teaching in the same institution and thereafter by Shri Narendra Prakash Jain. It was finally decided that the Committee of Management had wrongfully stopped Shri Narendra Prakash from joining as Principal of the college. In the final judgment of this Court in Writ Petition No.4851 of 2010, the Committee of Management was directed to allow Shri Narendra Prakash Jain to join. He finally joined, after the Committee of Management was superseded and an Authorised Controller was appointed by the Joint Director of Education by his order dated 6.1.2011.

The District Inspector of Schools after considering the entire facts and circumstances has initiated recovery from Shri Narendra Prakash Jain from 21.4.2010 to 30.6.2010 and from 13.8.2010 to 30.11.2010 in exercise of powers under Section 17 (3) of the U.P. Secondary Eduction Service Selection Board, 1982 (the Act).

Prima facie we are satisfied that Section 17 (3) of the Act does not provide for recovery of salary of such Principal or teacher from the income or property personally from the office bearer or individual member of the society. The recovery is provided to be made from the society, which is running the institution and which may include the property or the income from the property of the society. Consequently, we direct that the recovery from the petitioner personally and from his personal assets shall remain stayed.

It will be open to the respondent to amend the recovery certificate and to recover the amount from the assets or income of the society, which is running the Gram Vikas Inter College, Budhauli, Kanpur Dehat (now Rama Bai Nagar). The petitioner is given liberty to implead the society, which is running the Gram Vikas Inter College, Budhauli, Kanpur Dehat (now Rama Bai Nagar).

Learned Standing Counsel is granted three weeks' time to file counter affidavit. The petitioner will have one week, thereafter, to file rejoinder affidavit.

List on 26th April, 2012."

We find that there is no answer to the legal proposition raised on behalf of the petitioner keeping in view of provisions of Section 17(3) of the U.P. Secondary Education Service Selection Board Act, 1982.  The recovery certificate and the citation of the recovery both naming the petitioner personally and making him responsible and liable for the recovery is bad in law. The legislative intent of Section 17(3) does not support the same and consequently, we are of the clear opinion that the citation of recovery as well as the recovery certificate both suffer from the inherent defect of naming and nominating the petitioner as the person liable for the amount sought to be recovered. Consequently, in view of this infirmity neither the recovery nor the citation can be legally sustained.

We, therefore, allow the writ petition and quash the citation dated 11.12.2010, annexure-6 to the writ petition as well as recovery certificate issued by the District Inspector of Schools, annexure-7 to the writ petition.

This will, however, not prevent the respondents from taking the appropriate action, in accordance with law under sub section (3) of Section 17 of the Act.

The writ petition is allowed subject to the above.

Order Date :- 22.10.2018

VS/KPY