Man Singh vs State Of U.P. And 5 Others
2023 Latest Caselaw 8927 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on : 30.11.2022
 
Judgment Delivered on : 27.03.2023
 

 
Court No. - 36
 

 
Case :- WRIT - A No. - 2943 of 2020
 

 
Petitioner :- Man Singh
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Shri Krishna Mishra,Sharad Chand Rai
 
Counsel for Respondent :- C.S.C.,Ram Surat Patel
 

 
Hon'ble Ashutosh Srivastava,J.

Heard Sri Krishna Mishra, learned counsel for the petitioner and Sri Ram Surat Patel, learned counsel for the Respondent No.6, Committee of Management and Sri Shailendra Singh, learned Standing Counsel representing the State Authorities.

By means of the present writ petition, the petitioner has assailed the order dated 10.12.2019 passed by the Director, Social Welfare, Government of U.P., Lucknow, wherein and whereunder the respondent No.2, Director, Social Welfare, Government of U.P., Lucknow has refused to release the arrears of salary of the petitioner as also the consequential order dated 11.12.2019. The petitioner has further prayed that the respondent authorities may be directed to release the arrears of salary of the petitioner from January, 2012 till 31.03.2019.

According to the petitioner, the Society namely Sri Radha Krishna Madhyamik Bal Vidyalaya Samiti, which is registered under the Societies Registration Act, 1860 runs a minority institution namely Sri Radha Krishna Primary Bal Vidyalaya, Gopalganj, Jalaun at Orai. The institution is recognized under the U.P. Basic Education Act, 1972. The institution came under grant-in-aid of State Government on 31.03.1992.

It is contended that the petitioner who possessed the requisite qualification was appointed on the post of Headmaster vide appointment letter dated 16.03.1985 after facing the selection committee. At the time of his appointment one Madan Beni was the Member of the Committee of Management. On 14.03.2013, the Deputy Director, Social Welfare, Jhansi Division, Jhansi, requiring the petitioner to submit the appointment letter of the teachers of the institution and the documents relating to payment of scholarship. Pursuant to the letter issued by the Deputy Director, Social Welfare, Jhansi Division, Jhansi, the District Social Welfare Officer, Jalaun at Orai sent a letter dated 25.03.2013 sought the information and records relating to scholarship. The petitioner in response to the letter dated 25.03.2013 provided information to the District Social Welfare Officer, Jalaun. The salary of the other employees of the institution was disbursed but the salary of the petitioner was not disbursed. In these circumstances, the petitioner moved a representation dated 13.04.2017 before the Director, Social Welfare, Government of U.P., Lucknow, for releasing the salary as well as arrears of salary. However, the representation dated 13.04.2017 was kept pending and being aggrieved the petitioner invoked the jurisdiction of this Court by filing Writ (A) No.36809 of 2017, which was disposed of vide order dated 18.08.2017 requiring the Director, Social Welfare, Government of U.P., Lucknow to pass appropriate orders on the representation of the petitioner within three months from the date of communication of the order. It appears that the order of the Writ Court was not complied with and consequently, Contempt Application No.6020 of 2017 was filed which was disposed of on 20.12.2017. Pursuant thereto, the Director, Social Welfare, Government of U.P., Lucknow, vide order dated 02.02.2018 rejected the representation of the petitioner denying the payment of arrears of salary. The order dated 02.02.2018 was assailed in Writ (A) No.7018 of 2018. This Court vide judgment and order dated 18.09.2019 allowed the writ petition and quashed the order dated 02.02.2018 and remitted the matter back to the Director, Social Welfare, U.P., Lucknow to decide the issue afresh, within a period of four weeks after giving the opportunity of hearing to the petitioner and other parties. Pursuant thereto, the order impugned dated 10.12.2019 has been passed by the Director, Social Welfare, U.P., Lucknow, which records that the petitioner is not entitled to continue in service and action should be taken by the Committee of Management to dismiss him from service.

In response to the averments made in the writ petition, counter affidavit has been filed by the Respondent No.1, 2, 4 and 5. In Para No.5 of the counter affidavit it has been stated that the appointment of the petitioner was not made on 16.03.1985 but has been made vide appointment letter date 15.08.1976 by the Manager. The aforesaid order of appointment was confirmed by the Manager vide its letter dated 19.12.2012. It is further stated in para 7 of the counter affidavit that the petitioner who was the Headmaster of the institution did not provide the entire information/records demanded by the Deputy Director, Social Welfare, Jhansi Division, Jhansi, pursuant to the letter dated 14.03.2013 and 25.03.2013. In the enquiry report dated 04.05.2013 of the Deputy Director, Social Welfare, Jhansi Division, Jhansi, the petitioner was found guilty, therefore, the salary of the petitioner was not dusbursed.

It is further stated in Para 9 of the counter affidavit that from the report dated 04.05.2013 of the Deputy Director, Social Welfare, Jhansi Division, Jhansi, it is clear that the appointment of the petitioner on the post of Headmaster made by the Manager of the institution on 15.08.1976 is not in accordance with the provisions of notification dated 01.08.1977 as the petitioner at the relevant time was not having the minimum age of 25 years, he being 19 years, 5 months and 13 days only and was also not possessing educational qualification of B.Ed./B.T.C.. Further taking into account the financial irregularities committed by the petitioner and the Manager of the institution (who is real brother of the petitioner) the FIR has been lodged and enquiry is being going on before the Lokayukt, U.P. and even the issue was raised in the Vidhan Sabha. In these circumstances, as the Manager is not terminating the services of the petitioner, then the authorities have no other option but to withhold the salary of the petitioner.

In response, the rejoinder affidavit has been filed denying the averments made in the counter affidavit and it has been stated that in the year 1976 the Headmaster of the institution was Sri Mani Ram Verma, who continued till 1979. The petitioner was appointed on 16.03.1985 and not on 15.08.1976 and the letter dated 19.12.2012 is totally forged. At the time of his appointment Sri Madhan Beni was the Manager of the Committee of Management who was not related to him.

The Committee of Management appeared and filed its counter affidavit sworn by Dhanajeet Singh, stating that at the relevant time, he was not the Manger and was elected as Manager on 11.10.1990 and as such he is not in a position to comment upon the averments of the writ petition.

On the basis of the admitted facts, the learned counsel for the petitioner contended that the salary of the petitioner was withheld without any basis. He further contended that the appointment of the petitioner was made on 16.03.1985 and not on 15.08.1976. It is further contended that the procedure of selection is provided and the list so provided by the selection committee is sent to District Basic Education Officer and appointment order is issued only after his approval and thus the contention that the petitioner was appointed in the year 1976 and did not possess the minimum age and requisite qualification at the time of appointment is misconceived.

Per contra, the learned Standing Counsel contended that at the time of appointment on 15.08.1976 the petitioner did not possess the minimum age as well as the requisite qualification and as such the appointment is void ab-initio. It is further contended that the petitioner along with the Manager is involved in the financial irregularities, in respect of which FIR has been lodged and the enquiry is pending before the Lokayukt, hence the salary of the petitioner has been withheld.

Having heard learned counsel for the parties and having perused the record, this Court finds that taking into consideration the contention the learned Standing Counsel, this Court passed the following orders on 02.11.2022.

"Sri Shailendra Singh, learned Standing Counsel prays for two weeks time to apprise the Court as to the outcome of the enquiry, which is stated to be pending against the petitioner before the Lokaayukt.

Learned Standing Counsel may also file the documents to substantiate the stand taken in the counter affidavit that the petitioner was appointed on 15.08.1976 and not on 16.03.1985, as claimed by the petitioner.

List this case on 17.11.2022."

In response to the order dated 02.11.2022 passed by this Court, it has been informed that the matter is still pending before the Lokayukt and no final decision has been taken.

This Court finds that no document has been filed by the learned Standing Counsel to substantiate the stand taken in the counter affidavit that the petitioner was appointed on 15.08.1976 and not on 16.03.1985. The Court is not impressed by the argument that the petitioner was appointed on 15.08.1976 and at the time of his appointment the petitioner did not possess the minimum age of 25 years and also did not possess the requisite qualification. Even assuming that the petitioner was appointed in the year 1976. The Court finds that the detailed procedure for the selection, approval and appointment of a Headmaster in the institution is provided in U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978. Rule 10 of the Rules 1978 provides for procedure of selection. The list of selected candidates along with necessary papers is sent to District Basic Education Officer under Rule 10(4). According to Rule 10(5) the District Basic Education Officer enjoys the power not to accord approval to the selection, if he is satisfied that the candidate did not possess the minimum age and requisite qualification. The question is that when the petitioner did not possess the minimum age and requisite qualification how his appointment was approved by the District Basic Education Officer. The issue of his illegal appointment has been raised after three decades and nowhere in the counter affidavit the stand has been taken that the petitioner misrepresented the facts or played fraud at the time of selection. After three decades, the action is sought to be taken against the petitioner. Hon'ble Apex Court in the case of State of Gujrat Vs. Patel Raghav Matha 1969 (@) SCC 187, Manda Ram Vs. S. P Pathak, 1984 (1) SCC 125, State of Orissa Vs. Brundaban Sharma, 1995 (Supp) 3 SCC 249, has taken the view that exercise of power is always subject to inherent limitation of power being exercised within reasonable period and as to what would be the reasonable period would depend upon different facts, situation peculiar to each case. This is well settled in law that when any action has to be taken against any incumbent, then the same should be taken within reasonable time. However, this principle is not extendable to cases when incumbent has played fraud or misrepresentation on his/her part. In the present case, the petitioner was appointed three decades back and now action is being sought to be taken on ground of his ineligibility.

"Division Bench of this Court in the case of Smt. Rani Srivastava vs. State of U.P. and others, 1990 UPLBEC 189, took the view that it would be unfair and unjust to unsettle career of an employee who has worked for eight years, on the ground that her initial appointment was bad. Hon'ble Apex Court in the case of Dr. M.S. Mudhol vs. S.D. Hapegkar, 1993 (2) ESC 254 (SC) has observed that it would be undesirable to disturb Principal after twelve years on the ground that he was not eligible at the time of his appointment, because it would be iniquitous to make him suffer after such long time. Hon'ble Apex Court in the case of H.C. Puttaswami vs. Hon'ble the chief Justice of Karnataka, AIR 1991 SC 295, has taken the view that where persons appointed are in service for past several years and are now over age for entry in other services, they cannot be asked to undergo test and on humanitarian consideration, they were directed to be treated as regularly appointed employees. Hon'ble Apex Court in the case of Budhi Nath Chaudhary and others vs. Abhai Kumar and others (2001) 3 SCC 328, has taken the view that where incumbent has served for long time, then appointment made pursuant to long back selection need not be disturbed. Another Division Bench of this court in the case of Smt. Ram Devi vs. Director, Bal Vikas Sewa Evam Pushtahar, 2006 (1) ESC 466, has taken the view that when no objections are taken with regard to appointment at the time of appointment, then said objections cannot be permitted to be taken at the time of promotion of Mukhya Sweika".

The second ground of denial of release of salary is that a FIR has been lodged against the petitioner and the Manager of the institution for financial irregularities and the enquiry is pending before the Lokayukt, U.P.. The Court is also not impressed by this contention and the same is rejected because of the fact that neither action has been taken against the petitioner according to the service rules, 1978 nor against the institution as per the Basic Education Act, 1972. The petitioner was permitted to work and was allowed to retire on 30.11.2019. Mere pendency of enquiry before the Lokayukt and raising of issue before the Vidhan Sabha cannot be the ground of denying the payment of salary. Thus the order impugned dated 10.12.2019 is not sustainable in the eyes of law and is hereby quashed. Accordingly, the writ petition is allowed. The respondents are directed to pay the arrears of salary of the petitioner from January, 2012 to 31.03.2019 and also the retiral dues within two months from the date of communication of this order.

Order Date :- 27.03.2023

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