Smt. Shashi Singh vs State Of U.P. And 3 Others
2023 Latest Caselaw 22326 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:166560
 
Court No. - 35
 

 
Case :- WRIT - A No. - 13595 of 2023
 

 
Petitioner :- Smt. Shashi Singh
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Hritudhwaj Pratap Sahi,Samarath Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri H.P. Shahi, learned counsel for the writ petitioner and Sri Gaya Prasad Singh, learned Standing Counsel who appears for respondents No. 1 to 3.

2. In view of the order which is being proposed to be passed today, notice is not being issued to the fourth respondent.

3. The case of the writ petitioner is that her husband, Brijesh Kumar Singh had joined the fourth respondent institution, Sarvodaya Inter College Gadaha Banta Station, Deoria as Assistant Teacher in the attached primary section on 29.07.1986 and he continuously discharged his duties. According to the writ petitioner in the year 1989 a Government Order came into existence whereby primary sections attached to the Intermediate Colleges were also brought to grant-in-aid list, since the provisions of U.P. Intermediate Education Act, 1921 stood applicable to the fourth respondent institution, thus, in the wake of the Government Order issued in the year 1989 the husband of the writ petitioner also became entitled for payment of salary from the State Exchequer. In para 10 of the writ petition it is further asserted that in the aforesaid Government Order only 6 teachers of the primary institution of the institution in question were taken in the grant-in-aid list by the District Inspector of Schools, so the writ petitioner along with others preferred Writ Petition No. 32174 of 1991 for including their name also in the grant-in-aid list. In the said writ petition according to the learned counsel for the writ petitioner an interim mandamus was issued either to pay or to show cause but the salary was not made admissible to the husband of the writ petitioner. Eventually, the said writ petition came to be decided on 09.03.1999 wherein the following was observed.-

In that view of the matter, this matter is disposed of granting liberty to the petitioner to make a representation before respondent No. 1 within a period of four weeks from the date a certified copy of this order is obtained by the petitioners. Before filing the said representation, a copy thereof along with copy of this order shall be served upon the committee of management which is recognized by the District Inspector of Schools and now running the institution as well as the Principal or Headmaster as the case may be. Upon receipt of copy of such representation and copy of this order, the school authority shall be at liberty to file their submission or objection before respondent No. 1 and may also produce the relevant record as and when called for by the respondent No. In the case the representation is filed along with proof of service on the added respondent, respondent No. 1 shall decide the same in accordance with law after holding proper enquiry having regard to the record of the institution and giving opportunity to the petitioner as well as school authority according to his own wisdom and discretion without being influenced by any observation made in this order. Such decision is to be taken as early as possible preferably within a period of from date of making such four months from the representation. In case the school authority is refused to produce the record, in that event, it would be open to respondent No. 1 to inspect the record in the school if situation so warrants. Interim order granted in this writ petition shall be subject to the result of the decision of the respondent No. 1 on the representation. It is pointed out by Mr. Shukla, despite interim order the payment has not been paid to the petitioner. In that event, no payment need be made till the decision as above is arrived at. In case the decision is in favour of the petitioners, in that event, the decision shall be effective from the date mentioned in Annexure-2 to the writ petition viz. the date in which the teachers employed in such primary section of High School were eligible for receiving such salary. Respondent shall also take in account the records as existed as on the said date and he may not look into the record pertaining to the period after 6.9.1989.

With the observation/direction, this writ petition is disposed of.

However, there will be no order as to cost.

Let a certified copy of this order be supplied to the learned counsel for the petitioner on payment of usual charges at the earliest."

4. As per the writ petitioner, the District Inspector of Schools commenced the hearing in the year 2006 only with respect to the husband of the writ petitioner and two other teachers which occasioned the other teachers who claimed to be sailing on the same boat to file writ petition no.40931 of 2006 and in the said proceedings explanation was called for the District Inspector of Schools, Deoria, the third respondent and the District Inspector of Schools, Deoria thereafter proceeded to pass an order dated 11.08.2006 rejecting the claim of husband of the writ petitioner and the other incumbents which led to filing of another writ petition no. 50933 of 2006 which came to be decided on 19.04.2007 remitting the matter back to the District Inspector of Schools, Deoria, the third respondent while quashing the order in question. Thereafter, another order was passed on 11.03.2011 by the third respondent, District Inspector of Schools, Deoria making the writ petitioner entitled to the said benefit which was again challenged by one Sri Vishweshwar Singh and Others who claim to be the members of the general body of the institution in question in Wrti A No. 27156 of 2011 which again came to be allowed on 16.05.2011 and post remand now an order has been passed on 04.10.2011 whereby according to the writ petitioner the husband of the writ petitioner was made admissible to the payment salary and approval from the date of passing of the order dated 04.10.2011, however, arrears of salary was denied in that regard. As per the writ petitioner, the husband of the writ petitioner expired on 15.08.2016 reference whereof has been made in para 36 of the writ petition.

5. The grievance of the writ petitioner is that there happens to be little or no logic in denuding the writ petitioner for the grant of arrears of salary 01.10.1989 to 04.10.2011 as according to the learned counsel for the writ petitioner whenever an approval is being accorded then it relates back to the date of the appointment and one of the additional factor is available to the writ petitioner which stands endorsed in the order dated 09.03.1999 passed in Writ Petition No. 32174 of 1991 in which the writ petitioner was petitioner No. 3 whereby, in case, the approval is being granted then the husband of the writ petitioner is to be granted benefits from the date mentioned in Annexure 2.

6. Prayer in the present petition is for a direction to the respondents to pay the arrears of salary with effect from 01.10.1989 till 04.10.2011 and for quashing of the order dated 04.10.2011 insofar it denies arrears of salary.

7. Sri Gaya Prasad Singh, learned Standing Counsel who appears for the respondents No. 1 to 3, on the other hand, submits that the issue as to whether the writ petitioner is entitled to be the arrears of salary for the period from 01.10.1989 to 04.10.2011 with regard to the entitlement of her husband while posted as Assistant Teacher in the institution in question is to be gone into at the first instance by the District Inspector of Schools, Deoria, third respondent who shall address to the core and fundamental issues and thereafter consider the case of the writ petitioner. He further submits that though the writ petitioner has relied upon the judgment in Writ A No. 5266 of 2018 (Arun Kumar Singh Vs. State of U.P.) who was also sailing on the same boat but that the said fact is also to be taken into consideration in that regard. He, thus, submits that he does not propose to file any response to the writ petition.

8. Sri Shahi, learned counsel for the writ petitioner has no objection and he gracefully accepts to the suggestion made by the learned Standing Counsel.

9. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being disposed of granting liberty to the writ petitioner to prefer a comprehensive representation along with the self attested copy of the writ petition before the third respondent, District Inspector of Schools, Deoria and on the receipt of the same the third respondent shall put to notice the writ petitioner and the fourth respondent in advance in writing and thereafter proceed to decide the entitlement of the writ petitioner strictly in accordance with law within a period of two months from the date of production of certified copy of the order on the following fundamental and core issues; (a) the import and impact of the order dated 04.10.2011 passed by the District Inspector of Schools, Deoria, second respondent with regard to its existence as on date (challenge being made/staying or setting aside of the same); (b) the continuance of the husband of the writ petitioner on the post in question; (c) the other ancillary and incidental issues; (d) the issue with regard to the applicability of the order dated 18.05.2023 passed in Writ A No. 5266 of 2018 (Arun Kumar Singh Vs. State of U.P. & Others); (e) the issue with regard to re-fixation of the salary and the pension; (f) the competing claims, if any.

10. Since the writ petition has been decided at the fresh stage without seeking any instructions or filing of any response and non-participation and non-representation of the fourth respondent, thus, passing of this order may not be construed to be an expression that this Court has adjudicated the matter on merits.

11. It is further clarified that though prayer has been made for quashing of the order dated 04.10.2011 passed by the second respondent, District Inspector of Schools, Deoria insofar as it denies payment of salary to the writ petitioner from 01.10.1989 to 04.10.2011 but this Court, at this juncture, is not adjudicating upon the same, however, leaving it open to the writ petitioner to again approach, in case, the circumstances would be even otherwise, however, granting liberty may not be construed that the defences which would be available to the respondents have been struck down in the present proceedings in relation to consequential benefits.

Order Date :- 18.8.2023

Rajesh