Allahabad High Court
State Of U.P. Thru. Prin. Secy. ... vs Dr. Shiv Kumar Mishra And Another on 8 April, 2022
Bench: Devendra Kumar Upadhyaya, Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- SPECIAL APPEAL No. - 144 of 2022
Appellant :- State Of U.P. Thru. Prin. Secy. Higher Edu. Lko. And Others (In Wria No.-26873 Of 2021)
Respondent :- Dr. Shiv Kumar Mishra And Another
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Rahul Mishra
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Subhash Vidyarthi,J.
Heard learned Counsel for the appellant-State Authorities, Sri Rahul Mishra, learned Counsel representing respondent no. 1 and Sri Indra Pratap Singh, learned Counsel for respondent no. 2.
By means of this intra-court appeal, a challenge has been made to the judgment and order dated 18.11.2021 passed by learned Single Judge where the writ petition filed by the respondent no.-1/petitioner, namely Writ Petition No. 26873(SS) of 2021, has been partly allowed and the order under challenge in the writ petition whereby the Director Higher Education refused to grant financial approval for payment of salary to respondent no. 1-petitioner on honorarium basis from the date of his appointment till 30.06.2011, has been set aside.
Learned Single Judge by the order under challenge has observed that respondent no. 1-petitioner may claim for salary from the Management of the Institution for the period commencing from 01.07.2011 till the date he has taught in the Institution.
Submission of learned Counsel for the appellant-State authorities is that once a finding has been recorded by the learned Single Judge that initial appointment of the respondent no. 1-petitioner was not as per the provision contained in the Government Order dated 07.01.1998, which permitted appointment on honorarium basis, the direction issued for according financial approval to the appointment of the respondent no. 1-petitioner by learned Single Judge cannot be permitted to be sustained.
It has further submitted by learned Counsel for the State-authorities that initial appointment of respondent 1-petitioner in the Institution was made in the year 2004 against a vacancy sanctioned/created under the self finance scheme as such the State Exchequer cannot be fastened with the liability for payment of salary to respondent no. 1-petitioner.
On the other hand, learned Counsel for the respondent no.1-petitioner has submitted that the appointment of the respondent no.1-petitioner was initially made in the year 2004, however, subsequently in the year 2007 he was appointed against a vacancy created under self finance scheme. Further submission is that in the year 2007 his appointment was made in terms of Government Order dated 07.04.1998 on honorarium basis and hence liability of the State Exchequer has rightly been invoked by learned Single Judge for making payment of salary to the respondent no.1-petitioner.
Learned Counsel for the respondent no.2 has stated that Management of the institution was denied the opportunity of hearing as such the correct facts could not be brought to the notice of learned Single Judge by the time the writ petition was decided.
We have considered the rival submissions made by the learned Counsel for the respective parties and have also perused the records available before us on this Special Appeal.
When we examine the judgment and order dated 18.11.2021 passed by learned Single Judge, what we find is that no categorical finding on the issue as to whether the appointment of respondent no.1-petitioner was made by following the provisions contained in the Government Order dated 07.04.1998 has been recorded. The judgment under appeal also does not record any findings as to whether appointment of respondent no.1-petitioner was made against the post created/sanctioned under the self finance scheme or otherwise. In our considered opinion without giving a finding on this issue, the State Exchequer could not be fastened with the liability of making payment to the respondent no.1-petitioner.
The Government Order dated 07.04.1998 was issued by the State Government having regard to the paucity of regularly selected teachers in privately managed and aided degree colleges in the State of Uttar Pradesh and it is in this background that it was provided that each year before starting of the Session, appointment on honorarium basis can be made by the Management not against the posts which are created/sanctioned under the self finance scheme; rather on the regular side of the functioning of the institution. It is in this view that approval of such appointments made on honorarium basis was required to be accorded by the Director Higher Education.
Our attention has been drawn to the averments made in the writ petition filed before learned Single Judge wherein it has been stated by learned Counsel for the respondent no.1-petitioner that initially appointment of the respondent no.1-petitioner was made against the post created/sanctioned under the self finance scheme. The said fact is, however, being feebly denied by learned Counsel for the Respondent No. 1-petitioner. Explaining the aforesaid fact it has been argued by learned Counsel for respondent no.1-petitioner that though initial appointment of respondent no. 1-petitioner was made against a post created/sanctioned against the self finance scheme, however in the year 2007, the appointment was made against the vacant post which was created/sanctioned on the regular side, not under the self finance scheme.
Be that as it may be, without giving any finding as to whether appointment of respondent no.1-petitioner was made against a post created/sanctioned either on regular side or under the self finance scheme and also without ascertaining the fact as to whether appointment of respondent no.1-petitioner was made following the provisions contained in Government Order dated 07.04.1998, in our considered opinion, it would not be appropriate to fasten the State Exchequer with the responsibility for making payment of salary to the respondent no. 1-petitioner.
We also find it appropriate to observe that for ascertaining the aforesaid issues, opportunity of participation in the proceedings of the writ petition before learned Single Judge to the Management of the institution was necessary, so that correct facts and record could be placed for ascertaining the issues.
Accordingly, the Special Appeal is allowed. The judgment and order dated 18.11.2021 passed by learned Single Judge in Writ Petition No. 26873(SS) of 2021 is hereby set aside, which shall be decided a fresh.
The writ petition is restored.
We direct that counter affidavit to the writ petition, if any, shall be filed by State Authorities and respondent no. 2-Management of the Institution, within three weeks from today and rejoinder affidavit to the same may be filed by respondent no. 1-petitioner in the writ petition within a week thereafter.
Having regard to the fact that the matter is very old and relates to the alleged appointment of respondent no. 1-petitioner, made in the year 2007, we request the learned Single Judge that the proceedings of the writ petition shall be expedited and concluded as early as possible.
There will be no order as to costs.
Order Date :- 8.4.2022
Jyoti/-
