Kashinath Shukla vs District Inspector Of Schools And ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:189874
 
Court No. - 35
 

 
Case :- WRIT - A No. - 13172 of 2023
 

 
Petitioner :- Kashinath Shukla
 
Respondent :- District Inspector Of Schools And 3 Others
 
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Adarsh Singh, learned counsel for the writ petitioner and Sri R.P. Dubey, learned Additional Chief 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 the fourth respondent, Sri Parmanand Sanskrit Mahavidyalaya, Bramhsthan, Mahara, Rasoolpur Nandlal, Azamgarh is an institution recognized by the Sampoornanad Sanskrit University, Varanasi and it imparts secondary education from classes VI to XII and the salary of the teachers and other employees working in the said institution are paid under the U.P. Act No. 24 of 1971.

4. As per the writ petitioner he was appointed on the post of Assistant Teacher in the respondent No. 4 institution on 20.07.1998 on substantive basis. However, at that said point of time the institution was recognized upto intermediate level and the same was known as Sri Parmanand Sanskrit Mahavidyalaya, Bramhsthan, Mahara, Rasoolpur Nandlal, Azamgarh. The post of Principal of the institution (secondary education section) got vacant on account of one Sri Siddh Nath Shukla on 30.60.2020 the writ petitioner claims to be officiating on the post of Principal with effect from 01.07.2003 and his signatures stood attested. The writ petitioner further claims that post 01.07.2003 till his superannuation i.e., 31.03.2021 he continued to officiate as Principal and no regularly selected Principal came from the U.P. Board of Secondary Education.

5. The writ petitioner being aggrieved against non-payment of the benefits for the post of Principal in the institution in question preferred Writ A No. 13161 of 2022 which came to be disposed of on 02.09.2022 while passing the following order.-

"1. Heard learned counsel for the petitioner and the learned Standing Counsel for the State respondents.

2. Grievance of the petitioner is, his arrears of salary for the period 01.7.2003 to 31.03.2021 for the post of officiating Principal has not been granted by respondent No. 1.

3. On facts, it has been submitted, the petitioner being the senior most teacher at Sri Parmanand Sanskrit Uchchatar Madhyamik Vidyalaya Bramhsthan, Mahara, Rasoolpur Nandlal, Azamgarh was given the charge of officiating Principal with effect from 01.07.2003. He retired from service on 31.03.2021. Relying on the attestation of signatures issued by the District Inspector of Schools, Azamgarh, it has been submitted that there is no dispute to the fact of the petitioner having been given charge of the post of Principal.

4. Learned Standing Counsel has relied on a Government Order No. 412 dated 15.1.2010. Clause 3(3) of Chapter-2 reads as under:-

"5.Jahan sanstha ke pradhan ke pad ki asthaayi rikti chha maah se anadhik awadhi ki hai sanstha mein ucchtam shreni mein shreshthtam aharya adhyapak ko tadarth sansthadhyaksh ke roop me karya karne ki anumati di jayegi parantu wah jo vetan vartman vetanmaan praapt kar raha hai, usse ucchtar vetanmaan vetan ka adhikari nahi hoga."

5. Clearly the intent of the State has been to deny claim of higher salary to officiating Principal if he officiates for a term not more than six months. In the present case, prima facie, it appears that the petitioner had discharged the functions as officiating Principal for almost seven years. Accordingly, his claim merits consideration.

6. Without drawing any further inference, writ petition is disposed of with an observation, in case the petitioner files a copy of this order before the respondent No.1 within a period of two weeks from today, the said respondent shall proceed to consider the petitioner's claim dated 01.8.2022 (Annexure-3 to the writ petition) pending before him, in accordance with law as expeditiously as possible, preferably within a period of one month from the date of compliance shown by the petitioner. Any amount admittedly found payable may be released in favour of the petitioner within the same period.

7. In any case, upon taking his decision, respondent No. 1 shall make a proper communication to respondent No. 2 with respect to the claim of revised pension and such that the respondent No. 2 may proceed to deal with and dispose of that claim as expeditiously as possible preferably within two months from the date of receipt of communication from respondent No. 1."

6. Pursuant to the order passed by the Writ Court now the order impugned has been passed on 08.07.2023 by the District Inspector of Schools, Azamgarh, first respondent whereby the claim of the writ petitioner for grant of benefits referable to the post of Principal of the institution in question has been denied in view of the provisions contained under the Regulations 1978 of the Sampoornanad Sanskrit University Chapter XI (under Section 39 and 49 statute 11.25).

7. Questioning the order dated 08.07.2023 passed by the first respondent District Inspector of Schools, the writ petitioner preferred the present writ petition with a further relief that the writ petitioner be granted the arrears of salary and other benefits for the period from 01.07.2023 to 31.03.2021 while computing the same for the payment of pension and other benefits.

8. This Court entertained the writ petition on 21.08.2023 while passing the following order.-

"1. The contention of the learned counsel for the writ petitioner is that the order passed by the District Inspector of Schools, Azamgarh dated 08.07.2023 proceeds on misconception of facts of law particularly in view of the fact that the writ petitioner started officiating as a Head Master since 01.07.2003 till his retirement on 31.03.2021 for a period of 17 years.

2. He claims that his signature has been attested by the District Inspector of Schools, however, while placing reliance upon the provisions of statue of the Sampurnanand Sanskrit University, the benefits which are liable to be conferred upon the writ petitioner are being denied. He seeks to rely upon the judgment in the case of Dr. Bramhanand Shukla S/o Late Shobh Chandra Shukla Vs. State of U.P. Service Bench No. 1590 of 2008 decided on 29.05.2019, Writ A No. 48 of 2023 Sudhindra Kumar Rai Vs. State of U.P. and of course the judgment in the case of Dr. Jai Prakash Narayan Singh Vs. State of U.P. and others (2014) 4 UPLBEC 2642 and Paras Nath Vs. District Inspector of Schools reported in 1995 AWC 603.

3. Sri Shailendra Singh, learned Standing Counsel seeks time to obtain instructions and file affidavit.

4. Put up this case as a fresh case on 05.09.2023."

9. Today when the matter has been taken up Sri R.P. Dubey, learned Additional Chief Standing Counsel who appears for respondents No. 1 to 3 has made a statement at bar that he does not propose to file any response to the writ petition as pure legal question of facts are involved and according to him the matter be remitted back to the District Inspector of Schools, Azamgarh, first respondent to decide the matter post remand.

10. Sri Singh, learned counsel who appear for the writ petitioner submits that the order dated 08.07.2023 passed by the District Inspector of Schools, Azamgarh impugned in the writ petition cannot be sustained for a single moment as it seeks to re-open an issue which has already attained finality by a judicial order passed by this Court. He submits that the issue is no more res integra as the said issue was subject matter before this Court in umpteen number of decisions wherein it has been held that an Officiating Principal in an institution recognized by the Sampoornand Sanskrit University is entitled to benefits referable to payment of salary etc. He seeks to rely upon the judgment in the case of Paras Nath Pandey Vs. DIOS Basti 1995 UPLBEC (1) 667, service bench No. 1590 of 2008 (Dr. Brahmanand Shukla Vs. State of U.P.) decided on 29.05.2019, the judgment in Writ A No. 48 of 2023 (Sahind Kumar Rai Vs. State of U.P.) decided on 16.01.2023 and of course, a Full Bench judgment in the case of Dr. Jay Prakash Narayan Singh Vs. State of U.P. 2014 (4) UPLBEC 2642.

11. The submission of the learned counsel for the writ petitioner is that as per the statutes referable to10B of the U.P. State Universities 1st statute (age of superannuation, scales of pay and qualification of teachers) 1975 a teacher who is allowed to officiate as a Principal has been made entitled to payment of benefits and payment of salary and enjoying benefits, however, statute 12.22 of the 1st statute of the University inserted by notification of the State Government dated 31.10.1985 which prohibited and forbid the payment of salary on the post of Officiating Principal even in fact held to be illegal by virtue of a judgment in the case of Dr. Brahmanand Shukla (supra), thus, according to the learned counsel for the writ petitioner, writ petitioner is entitled to the benefits as sought in the writ petition in toto.

12. Sri R.P. Dubey, learned Additional Chief Standing Counsel who appears for respondents No. 1 to 3, on the other hand, submits that though the judgments which the writ petitioner seeks to rely upon as noticed above may apply in the facts and circumstances of the case but the same needs determination at the end of District Inspector of Schools, Azamgarh and the order impugned in the writ petition be set aside the matter be remitted back to the first respondent to decide the same afresh in the light of the said judgment. He further submits that he does not propose to file any response to the writ petition as the issue raised is of legal nature and in view of the order which is being sought to be passed post remand, counter would not be necessary in the facts and circumstances of the present case.

13. Ordinarily, in normal circumstances the Court would have undertaken the exercise of deciding the matter on merits, however, as rightly stated by learned Additional Chief Standing Counsel that the matter needs a re-look by the District Inspector of Schools, Azamgarh, first respondent, thus, this Court is not trenching into the merits of the matter.

14. Accordingly, the writ petition is being decided on the following terms:

(a) The order dated 08.07.2023 passed by the District Inspector of Schools, Azamgarh is set aside;

(b) The matter stands remitted back to the District Inspector of Schools, Azamgarh to decide the matter afresh;

(c) the writ petitioner shall prefer a comprehensive representation along with the self attested copy of the writ petition and also place before the first respondent the judgments which he seeks to rely upon by 10.10.2023;

(d) on the receipt of the representation and version of the writ petitioner notices be issued to the fourth respondent;

(e) the first respondent fixing a particular date;

(f) on that date the writ petitioner and the fourth respondent shall come therein versions exchanged;

(g) a date of hearing be fixed on that hearing be done;

(h) orders be passed within a period of one month from the date when the hearing stands concluded;

15. The first respondent, District Inspector of Schools, Azamgarh shall decide the matter strictly in accordance with law bearing in mind the fundamental and core issues:

(i)the entitlement of the writ petitioner for the payment of salary for the post of Principal from 01.07.2003 to 31.03.2021;

(ii) the issue with regard to revision of the pension on the basis of the last pay drawn along with other ancillary benefits;

(iii) the applicability of the Government Orders, Statutes, Acts which are existence in conformity with judgment in the case of Paras Nath Pandey (supra), Sahind Kumar Rai (supra), Dr. Brahmanand Shukla (supra) and Dr. Jay Prakash Narayan (supra).

16. Since the writ petition has been decided without seeking any response and on the basis of the arguments raised by the rival parties in particular Sri R.P. Dubey, learned Additional Chief Standing Counsel, who appears for respondents No. 1 to 3 and without issuing notice to the fourth respondent and seeking its version, thus, passing of this order may not be construed to be an expression that this Court has adjudicated the matter on merits and it is further cautioned that the first respondent shall put to notice the fourth respondent as obviously the fourth respondent has say in the matter.

17. With the aforesaid observations, the writ petition stands disposed of.

Order Date :- 3.10.2023

Rajesh