C/M Janta Inter College And Anoher vs State Of U.P. And 2 Others
2023 Latest Caselaw 27391 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:192793
 
Court No. - 35
 

 
Case :- WRIT - A No. - 14854 of 2023
 

 
Petitioner :- C/M Janta Inter College And Anoher
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Satya Prakash Singh,Bajrang Bahadur Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Satya Prakash Singh, learned counsel for the writ petitioners, who are two in number, Sri Shailendra Singh, learned Standing Counsel, who appears for respondent nos.1, 2 and 3.

2. The case of the writ petitioners is that it is a Committee of Management of Janta Inter College, Roopvas Panchgai, District - Bulandshahar, is recognized under the provisions of U.P. Intermediate Education Act, 1921 and it is in the grant-in-aid list and the provisions of U.P. Act No. 24 of 1971, stands applicable.

3. As per the writ petitioners, one Sri Raj Kumar Singh was appointed as a Clerk in the institution in question on 02.11.1976. He was placed under suspension on 16.10.1980 on the ground that he was facing criminal charges, which culminated into an order terminating his services on 30.11.1980. Approval whereof was accorded by the District Inspector of Schools, Bulandshahar.

4. Being aggrieved against the said order, Sri Raj Kumar Singh preferred an appeal before the Deputy Director of Education, which in turn came to be allowed setting aside the termination and the approval order of the District Inspector of Schools. However, while allowing the appeal of Sri Raj Kumar Singh, a rider was put in that Sri Raj Kumar Singh shall be deemed to be under suspension till the outcome of the criminal proceedings.

5. It is the further case of the writ petitioners that the petitioner-Committee of Management on 18.11.1981 appointed one Sri Kunwar Pal Singh on temporary basis and his appointment was approved on 02.02.1982 and in the meantime on 24.07.1987, Sri Raj Kumar Singh was acquitted of all the charges by the Court of IInd Additional Munsif Magistrate, Khurja, Bulandshahar. Thereafter, pursuant to a resolution of the petitioner-Committee of Management, Sri Raj Kumar Singh was reinstated with all benefits, but the salary of Sri Kunwar Pal Singh was stopped, which led to filing of Writ Petition No.1281 of 1990 by Sri Kunwar Pal Singh, in which on 16.01.1990, the District Inspector of Schools was directed to pay salary or to show cause, however by virtue of an order dated 20.07.1992, salary was accorded to Sri Kunwar Pal Singh and finally the said writ petition came to be dismissed on merit in the year, 2003, against which a Special Appeal No.1301 of 2003 was preferred, which was dismissed on 13.12.2003, against which an S.L.P. was filed before the Hon'ble Apex Court, which was also dismissed on 01.10.2004.

6. In paragraph no.13 of the writ petition, it is further asserted that Sri Raj Kumar Singh preferred Writ Petition No.23506 of 1991 for payment of salary and direction to the District Inspector of Schools to consider the claim of Sri Raj Kumar Singh for payment of salary, which in turn stood rejected on 05.12.2007, against which a writ petition was preferred by Sri Raj Kumar Singh, Writ A No. 1647 of 2008, which came to be decided on 10.12.2012, while passing the following orders (operative portion) :-

"After bearing in the mind the principles culled out from the aforementioned judgments of the Supreme Court as well as of this Court in facts of the present case a direction may be issued upon the District Inspector of Schools, Bulandshahr to make the payment of the petitioner from the date of his reinstatement i.e. 26.8.1988 and not from the date of acquittal. Petitioner is entitled for the salary from his joining upto 2003. As regards payment made to Kunwarpal Singh it was a sheer negligence/connivance of the office of the District Inspector of Schools. Therefore the State Government is at liberty to fix the responsibility for the illegal payment made to Kunwarpal Singh and recover the said amount from the Officer who is found to guilty of negligence or connivance with the Kunwarpal Singh.

For the aforestated reasons the impugned order dated 5.12.2007 passed by the District Inspector of Schools, the respondent no.1 is liable to be quashed. Accordingly, it is quashed.

The petitioner shall be paid his salary from the year 1998 to 2003 within three months from the date of communication of this order.

The writ petition is allowed.

No order as to cost."

7. According to the writ petitioners, the said order was subject matter of challenge at the instance of the Authorised Controller, who was manning the institution at that point of time, while preferring Special Appeal Defective No.401 of 2013 (Authorised Controller, Janta Inter College and 2 Others vs Raj Kumar Singh and Another), in which on 16.04.2013, the following orders were passed :-

"This intra court appeal has been filed against the judgement dated 10-12-2012 passed in Writ (A) No. 1647 of 2008. The appeal has been filed with the delay of 91 days.

Cause shown is sufficient. Delay in filing the appeal is condoned.

Sri Pankaj Lal advocate has appeared for the respondents. He raised point that the appeal is not maintainable.

At the very outset it was pointed out by the learned counsel for the appellant that the appellants have no locus to maintain the present appeal. The present appeal has been filed by authorized controller and the Principal Janta Intermediate College. There is no direction against these appellants by the writ court. The appeal can be maintained by a person who is aggrieved by the judgement and order of the court.

We are of the view that since the appellants are not aggrieved persons they have no locus in the matter. The appeal is dismissed in limini."

8. Pleadings further reveal that the District Inspector of Schools, Bulandshahar also preferred a Special Appeal Defective No.677 of 2013 (District Inspector of Schools, Bulandshahar vs. Raj Kumar Singh and 2 Others), which came to be dismissed on 27.02.2018, while passing the following orders :-

"1. Heard learned Standing Counsel for appellant. None has appeared on behalf of respondents even in revised call. Hence, we proceed to decide the matter after hearing learned counsel for appellant.

2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment dated 10.12.2012 passed by learned Single Judge in Writ Petition No. 1647 of 2008 - Raj Kumar singh Vs. District Inspector of Schools and others, whereby petitioner-respondents writ petition has been allowed directing appellant to pay salary to petitioner-respondent for period 26.08.1988 to 2003 and since it has been wrongly paid to another person, it is responsibility of appellant and shall be recovered from the officer who is found guilty of negligence or connivance with illegal beneficiary. Relevant part of impugned judgment reads as follows :

"Therefore the State Government is at liberty to fix the responsibility for the illegal payment made to Kunwarpal Singh and recover the said amount from the Officer who is found guilty of negligence or connivance with the Kunwarpal Singh.

For the aforesaid reasons the impugned order dated 05.12.2007 passed by the District Inspector of Schools, the respondent no. 1 is liable to be quashed. Accordingly, it is quashed.

The petitioner shall be paid his salary from the year 26.08.1988 to 2003 within three momths from the date of communication of this order.

The writ petition is allowed.

No order as to cost."

3. Learned Standing Counsel could not dispute that despite direction been given by the Court no responsibility has been fixed and no attempt has been made in this regard.

4. Sofar as merit of matter is concerned, it cannot be disputed that petitioner was denied salary for no fault on his part, therefore, learned Single Judge has rightly directed that he was entitled for salary as he was exonerated from the criminal case.

5. It also could not be explained why salary was continued to be paid to Kunwarpal Singh, despite his writ petition, special appeal and SLP having been dismissed.

6. Be that as it may, sofar as petitioner-respondent is concerned, for the fault of authorities, he cannot be made responsible for denial of salary. Otherwise also it will amount to permitting authorities to take advantage of their own fault.

7. Learned Standing Counsel could not point out any illegality in the judgment in question and we therefore, find no merit in appeal.

8. Dismissed accordingly."

9. According to the writ petitioners, now after a lapse of about more than five years from the passing of the last order dated 27.02.2018 in Special Appeal Defective No. 677 of 2013 (District Inspector of Schools, Bulandshahar vs. Raj Kumar Singh and 2 Others), a notice has been issued, dated 24.07.2023 by the third respondent, District Inspector of Schools requiring the writ petitioners to deposit within fifteen days an amount of Rs.7,40,890/-, which according to the District Inspector of Schools is an amount, which is to be paid in excess to what Sri Raj Kumar Singh was entitled.

10. Questioning the said notice dated 24.07.2023, passed by the District Inspector of Schools, Bulandshahar, the writ petitioner has preferred the present petition.

11. Sri Satya Prakash Singh, learned counsel for the writ petitioners, while drawing attention of the Court towards paragraph no.23 of the writ petition has sought to submit that the said communication though has been termed to be a notice, but even in fact it is an order as virtually an adjudication has been done that to bereft of any reason without putting to the writ petitioners to notice, while saddling liability upon the writ petitioners. He further submits that the order of the Writ Court even required the District Inspector of Schools to make the payment and Special Appeal preferred by the Authorised Controller and the District Inspector of Schools, stood rejected, thus no liability whatsoever could have been fastened upon the writ petitioners in this regard. He thus submits that the order in question cannot be sustained.

12. Sri Shailendra Singh, learned Standing Counsel, who appears for all the respondents submits that from perusal of the order, which is being subject matter of challenge itself reveals that the same has been passed without putting to the writ petitioners to notice, thus according to him, the communication dated 24.07.2023 be treated to be a show cause and the writ petitioners may prefer a representation / objection against nothing. He further submits that till disposal of the same after hearing the writ petitioners, the recovery will not be effectuated. He further submits that he does not propose to file any response to the writ petition.

13. To such a submission, Sri Satya Prakash Singh, learned counsel for the writ petitioners has no objection and he gracefully accepts the same.

14. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being disposed off granting liberty to the writ petitioners to file its objection to the notice dated 24.07.2023 within a period of fifteen days' from today and on the receipt of the same, the third respondent shall give an opportunity of personal hearing to the writ petitioners and thereafter fixing a date proceed to decide the issue within a further period of two months' from the date of the production of the certified copy of the order.

15. Till the passing of the fresh orders, no recovery whatsoever be made from the writ petitioners in pursuance of the order dated 24.07.2023.

16. With the aforesaid observations, the writ petition stands disposed off.

Order Date :- 6.10.2023

S Rawat