Allahabad High Court
Deo Narayan Mishra vs State Of ... on 26 August, 2021
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- SERVICE SINGLE No. - 15344 of 2020
Petitioner :- Deo Narayan Mishra
Respondent :- State Of U.P.Thru.Prin.Secy.Med.Health & Family Welfare &Ors
Counsel for Petitioner :- Raj Kr Singh Suryvanshi
Hon'ble Abdul Moin,J.
Heard.
The instant writ petition has been filed praying for a Mandamus commanding the respondents to release/ pay the salary to the petitioner for the post of District Health Education and Information Officer/ Health Education Officer in Community Health Center, Tikait Nagar, Barabanki for the period of 01.09.2015 to 10.05.2016 along with interest. A further prayer is for directing the respondents to treat the petitioner in service from 01.09.2015 to 10.05.2016 with all attendant benefits.
The case set forth by the petitioner is that while the petitioner was working as District Health Education and Information Officer at Barabanki, through an order dated 26.09.2015, copy of which is annexure 2 to the writ petition he had been attached with the office of District Magistrate, Barabanki.
The said order was challenged by the petitioner by filing Writ Petition No. 4545 (SS) of 2016 Inre; Deo Narayan Mishra Vs. State of U.P and Ors and this Court vide order dated 03.03.2016, a copy of which is annexure 5 to the writ petition disposed of the petition permitting the petitioner to make a comprehensive representation to the Director General, Family Welfare for the redressal of his grievances. The writ Court also held that the petitioner's salary shall be released forthwith. The said writ petition had been filed on the ground that in the capacity of being the District Health Education and Information Officer there was no requirement of the petitioner in the office of the District Magistrate, Barabanki.
When the order passed by the writ Court dated 03.03.2016 was not complied with, the petitioner filed a Contempt No. 682 of 2016. During pendency of contempt petition, the Chief Medical Officer, Barabanki passed an order dated 27.06.2016, a copy of which is annexure 10 to the writ petition whereby the Chief Medical Officer granted approval for payment of salary to the petitioner for the period from 01.09.2015 to 10.05.2016.
The petitioner claims to have retired on 30.09.2020 yet the salary for the aforesaid period has still not been paid to the petitioner and hence the present writ petition.
Learned counsel for the petitioner contends that once initially through an order dated 26.09.2015, the petitioner was attached to the office of the District Magistrate, Barabanki despite he working on the post of District Health Education and Information Officer and there was no such requirement, as such though he continued to discharge his duties in pursuance to the order dated 26.09.2015 yet he was not paid salary. Being aggrieved, he had filed the aforesaid writ petition which has been decided through an order dated 30.03.2016 but despite the aforesaid directions and the Chief Medical Officer having passed the order of payment of salary for the said period, the amount has not been paid and neither the said period has been counted as the period of service and hence the reasons of filing the present writ petition.
On the other hand, learned Standing counsel on the basis counter affidavit filed by the Chief Medical Officer, Barabanki argues that as the petitioner has not worked during the period w.e.f 01.09.2015 to 10.05.2016, as such in case the petitioner submits an application for leave thereafter the same would be sanctioned and the salary for the aforesaid period may be paid to the petitioner. It is also contended that the petitioner has only shown his working for the aforesaid period for only two days and thus there cannot be any occasion for payment of salary to the petitioner.
Heard learned counsel appearing for the contesting parties and perused the records.
From a perusal of records it is apparent that initially the petitioner while working on the post of District Health Education and Information Officer had been attached with the office of District Magistrate, Barabanki through an order dated 26.09.2015. Being aggrieved with the said order, the petitioner had filed Writ Petition No. 4545 (SB) of 2016 which was decided vide judgment and order dated 03.03.2016 leaving it open to the petitioner to submit a comprehensive representation for the redressal of his grievances but with the direction that the salary of the petitioner shall be released forthwith. When the said order was not complied with, the petitioner was compelled to file a contempt petition and during pendency of contempt petition itself, the Chief Medical Officer, Barabanki passed an order dated 21.06.2016 whereby the salary for the period from 01.09.2015 to 10.05.2016 was duly approved. Despite the said approval, the salary has still not been paid and the petitioner has also retired from service in the interregnum period. In the counter affidavit, a stand has been taken that the petitioner has not worked during the said period and as such he should file an application for leave. It is not the case of the respondents that the order dated 21.06.2016 which has been passed by the Chief Medical Officer, Barabanki has been withdrawn or recall at any stage. Thus, once the said order continues to exist as of date whereby the petitioner has already been sanctioned the salary for the aforesaid period, consequently now the petitioner cannot be compelled to file an application for leave for the aforesaid period. The respondents would also consider the said period as service, for which an order shall be passed by the respondents in accordance with the relevant rules.
Considering the aforesaid, the writ petition is partly allowed. A writ of mandamus is issued commanding the competent authority to release the salary of the petitioner in terms of the order dated 21.06.2016 passed by the Chief Medical Officer, Barabanki with all attendant benefits.
Let the compliance of this order be made within a period of two months from the date of receipt of a certified copy of this order in case there is no legal impediment
Order Date :- 26.8.2021/Pachhere/-
