Committee Of Management Sri Mauni Swami ... vs State Of U.P. And 4 Others
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Allahabad High Court

Committee Of Management Sri Mauni Swami ... vs State Of U.P. And 4 Others on 15 April, 2025

Bench: Ashwani Kumar Mishra, Jayant Banerji

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:54757-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 266 of 2025
 

 
Appellant :- Committee Of Management Sri Mauni Swami Inter College Sri Niwas Dham
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Appellant :- Himanshu Dubey
 
Counsel for Respondent :- C.S.C.,Pankaj Kumar Srivastava
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Jayant Banerji,J.

(Ref: Civil Misc. Delay Condonation Application No. 1 of 2025)

1. Heard.

2. Cause shown for the delay in filing of the special appeal is to the satisfaction of the Court. The delay in filing of the special appeal is condoned.

3. The Delay Condonation Application is, accordingly, allowed.

(Ref: Special Appeal)

1. This special appeal is by the Committee of Management challenging an order passed by the learned Single Judge, dated 9th January, 2025, which is reproduced hereinafter:-

"1. Heard Sri Pankaj Kumar Srivastava, learned counsel for the petitioner and Sri Shilendra Singh, learned Standing Counsel.

2. This Court has passed following detailed orders on 5.11.2024 and 27.11.2024

"5.11.2024

1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Astitva Srivastava and Sri Pankaj Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel for the respondent nos. 1 to 4 and Sri Lalji Pandey, learned counsel appearing on behalf of Vijay Kumar Pandey-complainant.

2. The aforesaid writ petition was filed inter alia with the prayer to quash the order dated 26.9.2024 passed by respondent no. 2/ Joint Director of Education, Vindhyanchal Mandal, Mirzapur.

3. It is argued that the petitioner was initially appointed on the post of Clerk in the institution in question namely, Sri Mauni Swami Inter College, Mirzapur in the year 2018 and when the salary was not paid to the petitioner he approached this Court by filing a writ petition being Writ-A No. 8319 of 2024 and in the said writ petition the following order was passed by coordinate Bench of this Court on 24.5.2024, which reads as follows:-

"The District Inspector of Schools, Mirzapur will show cause by his own affidavit why financial approval to the petitioner's appointment as an Assistant Clerk with the Sri Mauni Swami Inter College Sri Niwas Dham, Mirzapur has not been considered and granted so far; whatever orders are required to be made have not been made so far.

Lay as fresh on 31.05.2024.

Let this order be communicated to the District Inspector of Schools, Mirzapur through the Civil Judge (Senior Division), Mirzapur by the Registrar (Compliance) by Monday next."

4. Pursuant to the aforesaid a personal affidavit was filed by the District Inspector of Schools, Mirzapur. After quoting paragraph no. 8 of the aforesaid affidavit, following order was passed on 31.5.2024, which reads as follows:-

"In compliance with the order dated 24.05.2024, a personal affidavit has been filed on behalf of the District Inspector of Schools, Mirzapur. In paragraph 8 of the affidavit, it is averred:

"8. That, in regard to direction of this Hon'ble Court, the deponent craves indulgence of this Hon'ble Court, the file/proposal for payment of salary was received in the office deponent, who consequently after examining and verifying entire and materials available on record, by means of letter dated 28.5.2024 after granting approval for payment of salary to the petitioner from date of his joining from 18.09.2018 issued specific directions to the Manager of the Institution in anticipation of ensuring payment of salary to the petitioner. True copy of letter dated 28.5.2024 is annexed herewith and marked as Annexure no. 1 to this affidavit."

A perusal of the said paragraph shows that the petitioner's appointment has been approved vide order dated 28.05.2024 by the District Inspector of Schools, Mirzapur with effect from the date of joining, i.e., 18.09.2018.

In the circumstances, the Committee of Management, the Sri Mauni Swami Inter College Sri Niwas Dham, Mirzapur shall take necessary steps and present the necessary salary bills for arrears and current salary on the foot of which the Finance & Accounts Officer in the office of the DIOS and the DIOS, Mirzapur shall ensure payment of salary to the petitioner or show cause by filing a counter affidavit on or before 12.07.2024.

Lay as fresh on 12.07.2024.

Let this order be communicated to the Committee of Management, the Sri Mauni Swami Inter College Sri Niwas Dham, Mirzapur, the District Inspector of Schools, Mirzapur and the Finance & Accounts Officer in the office of DIOS, Mirzapur through the Civil Judge (Senior Division), Mirzapur by the Registrar (Compliance) within 24 hours."

5. It is argued by learned senior counsel that since the necessary orders were passed by the District Inspector of School on 28.5.2024 for the payment of salary to the petitioner along with arrears from the date of joining namely, 18.9.2018, the aforesaid writ petition was dismissed as infructuous by this Court, vide its judgment and order dated 29.7.2024.

6. It is further argued that the validity of order dated 28.5.2024 was assailed by one Sri Pawan Kumar Pandey by filing a writ petition before this Court being Writ-A No. 12639 of 2024, which was disposed of by a coordinate Bench of this Court, vide its judgment and order dated 5.9.2024, which reads as follows:-

"1. The petitioner before this Court was appointed on compassionate ground as Class-IV employee in the institution known as Sri Mauni Swami Inter College Sri Niwas Dham, Mirzapur. In the said institution, respondent No.4 Amit Kumar was appointed as Assistant Clerk through direct recruitment while one Hira Lal was appointed through promotion.

2. Respondent No.4 had approached the writ Court through Writ A No.8319 of 2021 claiming salary from the date of appointment. The writ Court directed the District Inspector of Schools to consider his claim and pass appropriate order. Pursuant to the order of writ Court, the District Inspector of Schools, Mirzapur proceeded to decide the claim of respondent No.4 in regard to payment of salary and vide order impugned dated 28.5.2024 it was directed that respondent No.4 was entitled to salary from his initial date of appointment.

3. The petitioner has also challenged another order dated 19.7.2024, which was passed by District Inspector of Schools on the two representations one dated 02.7.2024 and another dated 04.7.2024 moved by the petitioner and one Hira Lal, the person who has been promoted on the post of Clerk in the institution. The District Inspector of Schools has found that promotion of Hira Lal was in accordance with law and the representation moved by petitioner was rejected.

4. After hearing counsel for the parties and perusal of both the orders dated 28.5.2024 and 19.7.2024, I find that the petitioner cannot be aggrieved by both the orders as the order dated 28.5.2024 is only in regard to the decision taken by District Inspector of Schools on the directions of this Court in regard to the payment of salary to respondent No.4 from his initial date of appointment dated 18.9.2018 while the another order impugned dated 19.7.2024 decides the representations moved by the petitioner and one Hira Lal.

5. As far as the second prayer made in the writ petition which is in regard to seeking a direction upon respondent No.2 to decide representations dated 25.06.2024 and 20.7.2024 moved by the petitioner in the light of Government Orders dated 09.02.2007 and 17.06.2014, this Court without calling for any counter affidavit or issuing notice to either of the parties, directs the District Inspector of Schools, Mirzapur to accord consideration to both the representations strictly in accordance with law within a period of two months from the date of production of a certified copy of this order.

6. With the aforesaid direction, the writ petition stands disposed of however without touching the merits of the orders impugned dated 28.05.2024 and 19.07.2024."

7. It is clear that the order passed by the District Inspector of School dated 28.5.2024 was not intercepted with.

8. It is further argued by learned senior counsel that inspite of aforesaid orders a complaint was made by Sri V.K. Pandey on 24.9.2024. Taking into consideration the aforesaid complaint, without any notice and opportunity to the petitioner and in complete violation of the orders passed by this Court from time to time the impugned order dated 26.9.2024 was passed. The impugned order called for the documents of appointment and approval of petitioner and till an inquiry was conducted the salary of the petitioner was stopped. It is also argued that the order passed by the Joint Director of Education, Vindhyachal Region, Vindhyachal/ respondent no. 2 is not only illegal but also contemptuous in nature.

9. Heard learned counsel for the parties.

10. From the perusal of the record it is clear that pursuant to the orders passed by this Court in Writ-A No. 8319 of 2024 from time to time and pursuant to the order dated 28.5.2024 passed by respondent no. 2/ District Inspector of Schools, Mirzapur the petitioner started getting salary but thereafter without any notice and opportunity and only on the basis of a complaint made by one Sri V.K. Pandey an order dated 26.9.2024 was passed by the respondent no.2 / Joint Director of Education, Vindhyanchal Mandal, Mirzapur, by which the salary of the petitioner has been stopped.

11. In view of the aforesaid, the Court is of the opinion that the aforesaid order is contemptuous in nature.

12. Issue notice to respondent no. 2/ Sri Udai Bhan, Joint Director of Education, Vindhyanchal Region, Mirzapur, who shall appear in person before this court along with personal affidavit on the date fixed to explain as to why the contempt proceedings should not be initiated against him.

13. Put up this case as fresh on 27.11.2024.

14. Until further orders of this Court, the effect and operation of the order dated 26.9.2024 passed by the respondent no. 2/ Joint Director of Education, Vindhyanchal Region, Mirzapur shall remain stayed.

15. It is made clear that this order will not restrain respondent no. 2 from passing a fresh order.

27.11.2024

1. Pursuant to the order passed by this Court, Mr. Udai Bhan, Joint Director of Education, Vindhyanchal Mandal, Mirzapur is present before this Court. The personal affidavit along-with Exemption Application dated 26.11.2024 has been placed before this Court, the same is taken on record.

2. It is argued that after the order was passed by this Court, the answering respondent stated in the affidavit that by way of mistake, the salary of the petitioner has been stopped. Now the steps has been taken to make the payments of salary to the petitioner. It is further argued that arrears of salary will be released expeditiously.

3. As prayed, three weeks' time is granted to the counsel for the petitioner file a reply to the aforesaid affidavit.

4. Put up this matter as fresh on 09.01.2025 before the appropriate Bench.

5. On the said date, the answering respondent will file the fresh affidavit regarding the payment of arrears of salary to the petitioner.

6. Personal appearance of the Officer present in the Court today is hereby exempted."

3. Aforesaid orders have not been complied with since no fresh affidavit has been filed in regard to payment of arrears of salary of the petitioner.

4. Learned Standing Counsel submitted that he has received instructions that four weeks further time be provided for filing a fresh affidavit.

5. Court is of considered opinion that concerned State respondents has not been able to conceive the seriousness of the order passed by this Court as referred above. Therefore, this Court has no other option, but to pass following order:

(ai) Entire arrears of salary of the petitioner be released within a period of two weeks from today. In case of default, State respondents will have to pay Rs.1000/- per day to the petitioner which shall be deducted from their salary and the amount of Rs. 1000/- will become double after two weeks.

6. Copy of this order be sent immediately to the Secretary Education U.P. Lucknow to ensure its compliance.

7. With the aforesaid direction, this writ petition is disposed of."

2. The writ petition was filed challenging an order passed by the Joint Director of Education, Vindhyachal Region, Mirzapur, dated 26.9.2024, contained in Annexure-1 to the writ petition. This order takes note of a complaint made by one Vijay Kumar Pandey, as per which, a fraudulent appointment has been secured by the respondent/petitioner. The order of Joint Director notices certain facts which are relevant for the present purposes. As per the order there were only three post of clerks sanctioned in the institution against which three persons were already working on the day when the respondent alleges to have been appointed. The order of Joint Director notices that there was no vacancy and he has also not worked for a day from 18.9.2018 to 30.6.2024. The order further states that the previous orders of the authorities are passed pursuant to the orders passed in the writ petition filed by Amit Kumar wherein legality of his appointment is not adverted to and orders for payment of salary were passed pursuant to the directions issued in writ. It is also alleged that such orders were obtained on the strength of misrepresentation where relevant facts have not been noticed. The Joint Director, therefore, has directed the legality of the appointment offered to the respondent to be examined in light of the allegations made in the complaint and till such time the inquiry is concluded the payment of salary has been stopped to the writ petitioner. Aggrieved by this order the writ petition came to be filed before this Court. On 5th November, 2024, the writ petition was entertained and an interim order was granted. By the order of learned Single Judge challenged in this appeal the writ petition has been allowed even though time was prayed by the State Counsel to file a fresh affidavit.

3. From the materials placed on record, we find that there is no consideration in the judgment of the learned Single Judge with regard to legality of the appointment offered to the writ petitioner. Whether there existed any vacancy against which such appointment could be offered or fair procedure for recruitment was followed are some of the aspects which required consideration. Even in the earlier orders of the authorities issued pursuant to the peremptory orders of this Court in Writ-A No. 8319 of 2024 also there is no consideration of relevant aspects. In the previous order of this Court in Writ-A No. 8319 of 2024 there is no adjudication on merits with regard to legality of the appointment claimed by the respondent/petitioner. It has otherwise been observed in the order of the Joint Director that the father of the petitioner is working as a clerk in the office of the District Inspector of Schools, Mirzapur and, therefore, a collusive appointment has been obtained in favour of the writ petitioner. This was a serious charge and required consideration by the learned Single Judge on merits of the matter. The manner in which the writ petition has been allowed without upsetting the findings returned in the order of the Joint Director cannot be sustained. Even otherwise the previous adjudication which is relied upon merely states that the inquiry is pending and the salary is released under the orders of the Court. Writ proceedings cannot be utilized to avoid examination of issues with regard to legality of such public employment claimed by the petitioner. It is otherwise apparent that no time was granted for filing a counter affidavit in the writ to the State. The writ petition otherwise was filed only in October, 2024 and but for the personal affidavit of the officer nothing else was there on record. Since we find that serious allegations made in the order have not been adverted to nor the concerns noted are examined by the learned Single Judge, as such, the judgment and order passed by the learned Single Judge dated 9th January, 2025 cannot be sustained. The special appeal accordingly is allowed. The order dated 9.1.2025 is set aside. Matter is remanded to the learned Single Judge for a fresh determination of cause in light of the facts noticed by us.

4. Learned Standing Counsel as well as learned counsel for the Committee of Management shall file counter affidavit in the writ petition within four weeks. Rejoinder, if any, may be filed within two weeks, thereafter. The writ petition shall be listed before the learned Single Judge for His Lordship's consideration, thereafter. Question of payment of salary to the respondent shall be accorded consideration based upon the adjudication made in the writ, as per the observations made in this appeal. The special appeal stands disposed off, accordingly.

Order Date :- 15.4.2025

Ranjeet Sahu