Ajay Mishra And Another vs State Of U.P. Through Secy. ...
2022 Latest Caselaw 12919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 3
 

 
Case :- WRIT - A No. - 6132 of 2012
 

 
Petitioner :- Ajay Mishra And Another
 
Respondent :- State Of U.P. Through Secy. Secondary Edu. Lko. And Ors.
 
Counsel for Petitioner :- Onkar Singh,Amar Nath Dubey
 
Counsel for Respondent :- C.S.C.,Amitabh Kumar Tripathi
 

 
Hon'ble Rajan Roy,J.

Heard.

The petitioners filed this petition in 2012 claiming the following relief:-

"(I) Issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to pay the salary to the petitioners for the post of Class - IV regularly each and every month including the arrears of salary w.e.f. 08.11.1992, in the interest of justice."

The facts of the case in brief are that the petitioners claim to have been appointed on a Class - IV post by the Manager in 1992 and also that their appointment was approved by the D.I.O.S. vide order dated 06.09.1994 but salary is not being paid to them.

On being asked, learned Counsel for the petitioner informs the Court that the institution came on grant-in-aid list of the Government in 1996. On being further asked as to why this petition was filed in they year 2012 if the salary was not being paid since 1992, the petitioners' Counsel had no answer. Moreover, the Court finds that in Regulation 101 Chapter III of the Regulations made under the Intermediate Education Act, 1921, the requirement is of prior approval whereas in this case the admitted position is that, if at all any such approval was given on 06.09.1994, the appointment was made prior to it in 1992. Moreover, the Court finds that this Court had summoned the records so as to ascertain the veracity of the approval order dated 06.09.1994.

The order dated 11.03.2019 of this Court reads as under:-

"Learned counsel for the petitioner submitted that the appointment of the petitioner and Shri Vijay Babadur Singh Assistant Teacher was approved by the District Inspector of Schools on one and the same date i.e.06.09.1994 vide letter No.4706 and letter No.4707 respectively, the copies of which have been annexed as anneure no.RA-1 to the rejoinder affidavit and annexure no.3 to the writ petition, which has not been denied by the respondents. This fact has been mentioned by the petitioner in paragraph 12 of the writ petition and in reply thereof it has been submitted in the counter affidavit that the same needs no comments.

In view of above respondents are directed to produce the relevant records and the dispatch register on the next date of listing.

List on 9th of April 2019."

Thereafter, the records were produced on 09.04.2019 and the following order was passed:-

"Case called out. None appears on behalf of the petitioner. Sri Pankaj Khare, learned Additional Chief Standing counsel is present and has produced the records.

Records have been produced by the Court.

It has been contended that the series 4706 and 4707 pertain to the outgoing dak from the department. The Court has perused the Dak Register from which it transpires that nothing is transcribed against both the numbers rather the same are blank. The same is not the case with respect to the other serial number by which the dak has been sent out.

The matter requires investigation.

Sri Khare prays for and is granted two weeks time so that the competent officer can look into the matter and submit his report as to in what circumstances the said two number in the dak register are left blank.

List this case after two weeks.

The records produced today need not be produced unless specifically called for."

Again on 08.01.2020, the following order was passed by the Court:-

"Heard.

Learned counsel for the petitioner contends that the payment of salary of the petitioner and one Sri Vijay Bahadur Singh, Assistant Teacher were approved by the District Inspector of Schools on one and the same date i.e 06.09.1994 vide letters no. 4706, copy of which has been annexed as annexure RA 1 to the rejoinder affidavit and letter No.4707 of the petitioner, copy of which is Annexure-3 to the petition. Taking this into consideration, this Court had summoned the records through order dated 11.03.2019. When the records were produced on 09.04.2019, the original records were perused by this Court including the Dak Register from which it transpired that nothing was transcribed against both the numbers i.e series 4706 and 4707 and the same were blank. In this view of the matter, this Court vide order dated 09.04.2019 required the respondents to look into the matter and submit a report as to in what circumstances the said two numbers in the Dak Register were left blank.

In pursuance thereof, a supplementary counter affidavit has been filed on 29.04.2019 from which it comes out that the circumstances in which the said numbers were left blank in the Dak Register could not come out on account of the then District Inspector of Schools having lost his memory.

Be that as it may, the fact of the matter remains that the both the letters against the alleged approval were dispatched by the District Inspector of Schools but details pertaining to the petitioner at Serial No. 4707 and others at Serial No.4706 were blank.

Learned counsel for the petitioner contends that with respect to the approval order which was dispatched at Serial No. 4706 i.e One Sri Rakesh Kumar Singh, he is being paid salary.

Upon this, Sri Pankaj Khare, learned Additional Chief Standing counsel prays for and is granted two weeks time to seek instructions as to in what circumstances Sri Rakesh Kumar Singh is still being salary and what action is sought to be initiated against him as his approval order has been found to be non-existent in the eyes of law as per the averments in the counter affidavit and supplementary counter affidavit.

List thereafter. "

From the aforesaid orders, it is apparent that the dispatch number of the approval letter, contained as Annexure No. 3 to the writ petition, dated 06.09.1994 bears a number 4707 94-95, whereas the dispatch register which was seen by the Court on earlier dates revealed that Serial No. 4706 and 4707 are blank, meaning thereby, there is no entry in the dispatch register corresponding to the said serial number. Now, whether the approval was in fact given by the D.I.O.S., Pratapgarh on 06.09.1994 or not? and whether the document annexed as Annexure - 3 is genuine or not? are all disputed questions of fact. Even assuming for a moment, they are found to be genuine, the fact is that there was no prior approval to the petitioners' appointment. It is also a fact that this petition was filed 20 years after the cause of action had arisen. It is unthinkable that a Class - IV employee would continue to work since 1992 without salary and will come to Court after 20 years in 2012. Moreover, the institution was brought on grant-in-aid list in 1996, therefore, in any case, the cause did arise to the petitioners to come to Court in 1996 or at least in 1997 seeking salary. All this makes the claim of the petitioners highly suspicious.

In any case, disputed questions of fact being involved, this is not a fit case for interference under Article 226 of the Constitution of India.

Vijay Bahadur Singh, whose appointment as per the petitioners was also approved on the same date i.e. 06.09.1994, he also approached this Court by means of Writ Petition No. 239 of 2015 which has been dismissed on 28.08.2017, a copy of the said judgment is on record. As regards Rakesh Kumar Singh, whose name figures in the order dated 8.01.2020, according to Shri Pankaj Khare, he is being paid salary on account of an order passed in his case in a writ petition against which Special Appeal is pending wherein there is no interim order. In any case, whether Rakesh Kumar Singh is being paid salary validly or not will not give any benefit to the petitioners herein, as they have to stand on their own legs.

Considering the aforesaid facts and circumstances, this is not a fit case for any further indulgence, however leaving it open for the petitioners to raise their grievance by initiating appropriate proceedings before the Civil Court, if the same is otherwise maintainable in law.

The writ petition is dismissed in the aforesaid terms.

Order Date :- 14.9.2022

Lokesh Kumar