Dhanraj Singh vs District Inspector Of Schools And ...
2023 Latest Caselaw 1260 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 1064 of 2018
 

 
Appellant :- Dhanraj Singh
 
Respondent :- District Inspector Of Schools And 2 Others
 
Counsel for Appellant :- Sasmita Srivastava,Dinesh Kumar Pandey
 
Counsel for Respondent :- C.S.C.,Shivendu Ojha
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

Heard learned counsel for the appellant and the learned Standing Counsel for respondents 1 and 2. The name of Sri Shivendu Ojha is shown in the cause list from the respondent side, representing respondent no.3, but, despite revised call of the list, none is present for the third respondent.

This intra-court appeal has been filed against the judgment and order of learned single Judge dated 27.09.2018 passed in Writ A No.25644 of 1993 which is reproduced below :

"1. Called in revise. None appeared to press this writ petition. Learned Standing Counsel and Sri Dinesh Kumar Pandey, Advocate, are present for respondents. In the circumstances, I myself have perused the record.

2. By means of present writ petition, petitioner has sought following reliefs:

"(i) to issue a writ, order or direction in the nature of Certiorari quashing the order passed by the District Inspector of Schools dated 26.09.1992 vide letter No. 6159-9/92-93, which has been actually given to the petitioner on 15.06.1993 (Annexure No. 13 to the writ petition).

(ii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents not to interfere in the working and functioning of the petitioner as Assistant Teacher in L.T. Grade in the Institution.

(iii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay the arrears of salary of the petitioner since 08.07.1986 and also to pay the future salary of the petitioner as and when it falls due."

3. I myself have gone through the pleadings, grounds as also reliefs sought and find that petitioner is not able to make out a case so as to justify interference of this Court by granting reliefs, as prayed for.

4. Moreover, it appears that either the cause of action no more survives or the petitioner has lost interest in this matter or it has otherwise become infructuous and, probably for this reason, none is interested to have decided this matter on merits and that is why, counsel for petitioner is absent.

5. Dismissed. Interim order, if any, stands vacated."

As the above order was passed without hearing the counsel for the writ petitioner, the writ petitioner has challenged the order on various grounds which were considered at the time of admission of this appeal and a detailed order was passed on 27.10.2018, which is reproduced below :

"Admit.

Order on Stay Application

We have heard Shri Ashok Khare, learned senior counsel assisted by Ms. Sasmita Srivastava and learned standing counsel for the State as well as Shri Shivendu Ojha learned counsel for Committee of Management, respondent no.3.

The appellant claims to have been appointed in the year 1986 against a C.T. Grade post and thereafter he was not paid salary as the institution was then not under the Payment of Salary Act. The institution came under the Payment of Salary Act, 1971 as an aided institution in 1991. His name was not sent for payment of salary and accordingly he filed the writ petition before this Court praying for payment of salary contending that the appointment was valid and within the sanctioned strength of teachers of the institution.

The learned single Judge in writ petition no.24418 of 1992 passed the following order on 5.7.1992 :-

"Heard the learned counsel for the petitioner and also the learned standing counsel.

The petitioner claims to have been appointed in the year 1986 vide appointment letter date 26.06.1986 on adhoc basis but the appointment letter describes him to have been appointed for one year on probation with effect from 01.07.1987. The petitioner has not filed the order if any, or the D.I.O.S. approving the appointment of the petitioner approval, it is all you that the petitioner was paid his salary upto the year 1991. It is further alleged that thereafter payment of salary was stopped admittedly by the D.I.O.S. without passing any specific orders in this regard. I having heard the learned counsel for the petitioner, I am of the opinion that as per for the petitioner to agitate this grievances before the D.I.O.S. as he, has stopped payment of salary to the petitioner after March 1991 on words. In this view of the matter, I disposed of the Writ Petition finally with an observation that if the petitioner represents his case before the D.I.O.S. the said authority shall dispose of the representation the decision taken to the petitioner within period of three months from the date of receipt of a certified copy of this order at his end. In case the petitioner is found to have been duly appointed on adhoc basis against the sanctioned post, the D.I.O.S. would ensure payment of salary to the petitioner."

Upon the disposal of the said writ petition, the District Inspector of Schools, Mirzapur passed the order dated 26.9.1992 reciting therein that since the appellant has been unable to produce any document pertaining to the post creation order or the existing vacancy, that was filled by appointment of the appellant, therefore it would not be possible to extend the benefit of payment of salary or approval of his appointment as claimed by him.

This order was impugned in the writ petition giving rise to the present Special Appeal and an interim order was passed on 2.11.1993 whereby the order dated 26.9.1992 was stayed and a direction was given for payment of salary. The said order is extracted herein under :-

"Issue Notice.

In the meantime, operation of the order dated 26.9.1992 passed by the District Inspector of Schools Mirzapur shall remain stayed. District Inspector of Schools is further directed to pay the salary of the petitioner."

The appellant continued to receive salary and when the writ petition came up for final hearing, it appears that the counsel for appellant Shri S.P. Singh, who had already shifted to the Supreme Court, was not available to press the petition and it was decided in the absence of learned counsel for the petitioner. The learned single Judge while dismissing the writ petition in default simultaneously proceeded to hold that the appellant was not entitled to any of the relief, claimed for and further observed that no cause of action survives and otherwise also the petition has become infructuous.

Learned counsel submits that the aforesaid findings recorded by the learned single Judge are all ex-parte and are contradictory, inasmuch as if the learned single Judge was of the opinion that there was no merit in the writ petition, then the same could not have been described as infructuous and otherwise the petition could have been dismissed in default and not on merits. For the aforesaid proposition, learned counsel has relied on the judgment of the Division Bench in the case of Shagufta Bano vs. State of U.P. and 6 others in Special Appeal No.938 of 2018, decided on 27.9.2018.

Even on merits, it is contended that the question of creation of posts by the Director would arise in terms of Section 9 of the Payment of Salary Act, 1971 only when the institution is brought in grant-in-aid list and not prior to that and therefore if the appointment was made prior to the institution being extended the benefit of grant-in-aid, then in that view of the matter if the appellant was continuing against a post which came to be sanctioned latter on, it could not be said that the appellant?s appointment was beyond the sanctioned strength of the institution. It is urged that there is no loss of exchequer to the State as no salary is being paid outside the sanctioned strength of teachers in the institution.

Apart from this, it is also submitted that the appellant has attained the age of almost 56 years and is also acting as Principal of the institution. After having been extended the benefit of interim order referred to herein above, the appellant continued to serve the institution and was later on also awarded the scale of L.T. Grade as well.

Prima facie in our opinion the aforesaid facts do not find any consideration in the order of learned single Judge which ought to have been taken notice of before proceeding to have treated the petition to have become infructuous or having no merits.

In this view of the matter, we find that the appellant has made out a prima facie case for grant of an interim order.

Accordingly, until further orders of this Court, the operation of the impugned judgment dated 27.9.2018 shall remain stayed and the appellant shall continue on the post occupied by him and receive salary thereof."

Against the above order, a Special Leave to Appeal was filed before the Apex Court, which was disposed off by order dated 04.03.2022 reproduced below :

"The present Special Leave Petition is directed against an interim order passed by the High Court of Judicature at Allahabad on 27.10.2018, whereby Respondent No.1 was directed to continue on the post and to receive salary.

This Court, while issuing notice on 22.02.2019, stayed further proceedings before the High Court.

Keeping in view the subject matter of the dispute, we dispose of the present Special Leave Petition with a request to the High Court to decide Special Appeal No.1064 of 2018 expeditiously and preferably within a period of three months from today, keeping in view the fact that the respondent is stated to be around 56 years of age in 2018.

Pending interlocutory application(s), if any, stands disposed of."

Today, when the matter was listed, a counter affidavit was filed by the respondents 1 and 2. In paragraph 15 of the counter affidavit it is stated that the prayer of the appellant for regularization was considered and was rejected by order dated 21.08.2018 on the ground that when the petitioner was appointed as Assistant Teacher C.T. Grade the institution was not brought in the grant-in-aid list and the institution was unaided as such the case of the petitioner/appellant is not covered under the provisions of Sections 33 A and 33 C of the U.P. Intermediate Education Act, 1921 (which should be read as U.P. Secondary Education (Services Selection Boards) Act, 1982). In paragraph 17 of the counter affidavit it is stated that Writ A No.4197 of 2019 filed by the appellant against the order dated 21.08.2018 is pending.

As we notice from the record that the order impugned in the present appeal was passed without hearing the writ petitioner (appellant herein) and already a detailed interim order was passed by this Court on 27.10.2018 which has not been disturbed by the Apex Court, keeping in mind that there are subsequent developments in the matter giving rise to another writ petition which is pending before the learned single Judge as Writ A No.4197 of 2019, we are of the view that Writ A No.25644 of 1993 deserves a fresh consideration along with Writ A No.4197 of 2019. Consequently, this appeal is allowed. The order dated 27.09.2018 is hereby set aside. Writ A No.25644 of 1993 is restored to its original number. The same shall be clubbed with Writ A No.4197 of 2019 and both the writ petitions shall be listed before appropriate single Judge Bench in the week commencing 30.01.2023. The interim order as was operating during the course of the writ proceedings shall stand restored.

Order Date :- 12.1.2023.

Rks.