State Of Up And 2 Others vs Smt. Pramila And 6 Others
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Allahabad High Court

State Of Up And 2 Others vs Smt. Pramila And 6 Others on 16 April, 2025

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:55839-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 215 of 2025
 

 
Appellant :- State Of Up And 2 Others
 
Respondent :- Smt. Pramila And 6 Others
 
Counsel for Appellant :- Ashish Mohan Srivastava,C.S.C.
 
Counsel for Respondent :- Shesh Kumar Srivastava,Vishnu Swaroop Srivastava
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Anish Kumar Gupta,J.

(Ref: Civil Misc. Delay Condonation Application)

1. Counter affidavit filed in the delay condonation application is taken on record.

2. Office has reported this appeal to be time barred by 5746 days.

3. The explanation for delayed filing of the appeal is that the order of learned Single Judge has not taken into consideration the assertions made in the counter affidavit, and therefore, a review application was filed. This review application remained pending and got decided only in January, 2025. It is thereafter that special appeal has been filed. Submission is that delay, accordingly, is explained and the application be allowed.

4. Delay condonation application is strongly opposed by Sri Shesh Kumar Srivastava, appearing for the respondent petitioners on the ground that the writ petition was decided finally in the year 2009, whereafter contempt proceedings were initiated. The matter was taken to the Supreme Court and observations were made to proceed with contempt, if a recall application is not filed. It is much thereafter that review application has been filed with a delay of more than 2 years. It is, therefore, submitted that mere delay occasioned in disposal of the review would not be a sufficient ground for belated filing of the appeal. The review application has also been decided pursuant to a direction issued by the Supreme Court on 24.10.2024. Sri Shesh Kumar Srivastava also places reliance upon an order passed by this Court in Special Appeal (Defective) No.919 of 2024, wherein this Court refused to condone the delay in filing of the appeal on the ground that only when contempt proceedings were initiated, the appeal was filed. On facts, no satisfactory explanation was found for the delay of 4821 days in filing of the appeal. Facts of the present case, however, are different.

5. We have heard learned counsel for the parties and have carefully perused the material brought on record.

6. It is undisputed that the writ petition has been allowed without adverting to the averments made in the counter affidavit. The review application was filed in the year 2011 after the petition was allowed in the year 2009. The review application has remained pending and is ultimately decided only in the year 2025. In such circumstances, we find that State was pursuing its remedy before the learned Single Judge and it cannot be said that there is any inordinate delay in filing of the appeal. In such circumstances, the appeal cannot be said to be barred by time.

7. Application for condonation of delay is, accordingly, allowed. Delay in filing of appeal is condoned.

(Ref: Special Appeal)

1. This special appeal arises out of an order passed by the learned Single Judge whereby two writ petition Nos. 16969 of 2007 and 30616 of 2006 were allowed on 18.5.2009. This special appeal is, however, limited to the order passed by learned Single Judge in Writ Petition No.30616 of 2006. Review application filed in Writ Petition No.16969 of 2007 is stated to be pending. We are, therefore, concerned only with the judgment delivered in Writ Petition No.30616 of 2006.

2. Learned Single Judge while allowing this writ has quashed the order of District Inspector of Schools dated 3.3.2006 in respect of the respondents/writ petitioners, who are five in number. Learned Single Judge has also observed that this order shall not come in the way of payment of regular salary and arrears of heldup salary to the writ petitioners since employee and employer relations are continuing. A review petition filed against this judgment has also been rejected by the learned Single Judge. Thus aggrieved, the State is before this Court in this intra-court appeal.

3. Undisputed facts as they emerge on record are that there exists an educational institution namely 'Nehru Inter College, Bichiya Railway Colony, Gorakhpur (hereinafter referred to as 'the institution'). This institution is duly recognized under the provisions of the U.P. Intermediate Education Act, 1921. The Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as the 'Act of 1971') are applicable and salary to teachers and staff was to be paid out of State funds. Institution also has an attached primary. The respondent/petitioners claim to be appointed and working as Assistant Teacher in the attached primary, pursuant to their initial appointment in 1994. Payment of salary, however, was not released to any of the respondent/petitioners.

4. Several teachers, including 5 petitioners in this writ, approached this Court by filing Writ Petition No.21661 of 2002, which came to be disposed of on 24.10.2005, vide following orders:-

"The petitioners allege that they were appointed as a Teacher in accordance with the provisions of the U.P. Intermediate Education Act and that inspite of financial approval being granted by the District Inspector of Schools, the salary was not being released, hence the petitioners filed the present writ petition praying for a writ of mandamus commanding the respondents to pay the arrears of salary. A Counter Affidavit has been filed by the respondents alleging that no appointments were given to the petitioners.

During the pendency of the writ petition, it transpires that the State Government made an enquiry and submitted a report, in which according to the petitioners, it has been found that valid appointments were made.

In view of the aforesaid, I direct the petitioners to make a fresh representation before the District Inspector of Schools within six weeks from today, who will consider the same and pass a reasoned and speaking order within three months from the date of production of a certified copy of this order.

The writ petition is disposed of with the aforesaid direction."

5. It is thereafter that the claim of appointment offered to respondent petitioners came to be considered and rejected by the District Inspector of Schools, Gorakhpur, vide order dated 3.3.2006. This order is interfered with by the writ court and a direction has been issued to release salary to the writ petitioners.

6. In paragraph 5 of the writ petition it is asserted that 59 sections of Primary Classes were already running with the permission of the District Inspector of Schools and 58 teachers were approved by the Inspector vide orders passed on different dates. According to petitioners, in 1993, 12 additional sections of primary classes were opened with the permission of the District Inspector of Schools and consequently 12 additional posts of Assistant Teachers came into being. It is against these 12 additional posts of primary teachers that appointments were allegedly offered to the respondent petitioners.

7. According to the writ petitioners these 12 persons were appointed on 1.1.1994 and they joined their duties on 3.1.1994. It is also the case of the petitioners that their appointment was granted financial approval by the District Inspector of Schools on 26.4.1994. It was the case of respondent petitioners that they have joined the institution and are working yet salary is not being paid to them, out of State funds, despite the approval granted to their appointment.

8. The respondent petitioners though claim that they are working since 1994 but till 2002 their claim for salary never saw the light of the day. It was only by filing writ petition no. 21661 of 2002 that claim for payment of salary was brought before this Court. The writ petition was disposed of with a direction upon the authority concerned to examine the claim.

9. The District Inspector of Schools while rejecting the claim of the petitioners, vide order under challenge before the learned Single Judge, observed that there were already 59 teachers in the primary section who are already receiving salary and as such there was no occasion to appoint any additional teacher in the primary section. The officer has also observed that as per the strength of students at the most 25 sections could be opened in the primary sections against which 59 teachers are already working and getting salary. An inspection was also conducted on 27.2.2006 in the institution and it was found that only 463 students were present in the primary section. It was also observed that most of these students have been called from outside.

10. A counter affidavit has been filed in the writ petition by the State disputing the claim of the appointment put-forth by the respondent petitioners. In para 3 it is asserted that the claim for appointment is based on forged documents. It is specifically asserted that no approval was granted to the petitioners appointment by the competent authority nor they are working in the institution. Counter affidavit filed also states that during the spot inspection less number of students were found in the institution and at best only 25 sections could have been run in the primary section. It was asserted that against 25 permissible post of teachers in the primary section 54 teachers were already working and getting salary and there was no occasion to appoint any additional person. In the counter affidavit it was also stated that no records were available in the office evidencing creation of post or grant of approval to the appointment claimed by the writ petitioners. In para 5 it was stated that no Patravali related to approval of the petitioners is available in the department and since there was otherwise no question to appoint teachers in the primary section, the claim of payment of salary did not arise.

11. A rejoinder affidavit to the counter affidavit of the State has been filed in which the assertions are denied. However, alongwith rejoinder affidavit no document in support of the claim of appointment has been annexed.

12. The counter affidavit and rejoinder affidavit have been placed on record before the learned Single Judge alongwith the review application. The case of the State is that the counter affidavit was sworn on 21.2.2007 by the Associate District Inspector of Schools, Gorakhpur and the rejoinder affidavit has also been filed by the petitioners sworn on 11.3.2007.

13. Although, the counter affidavit and rejoinder affidavit have been annexed alongwith the review application, but same is not denied by the respondents. It is not their case that the counter affidavit was not served upon petitioners or they had not filed any rejoinder affidavit. It appears that when the matter was heard by the learned Single Judge, the counter and rejoinder affidavits were not on record. The review application has also been rejected by the learned Single Judge stating that the counter and rejoinder affidavits were not brought on record when the writ petition was decided.

14. We are not impressed by the reasoning assigned by the writ court in rejecting the review application only on the ground that counter and rejoinder affidavits were not on record. The counter and rejoinder affidavit exchanged between the parties is undisputed. Unless a counter affidavit was served upon the petitioners, the question of swearing of rejoinder affidavit did not arise. The counter and rejoinder affidavits are otherwise not disputed by the respondent petitioners. If such affidavits were filed after serving its copy on the petitioner and were not available on record when the matter was taken up by the learned Single Judge, it was the duty of the learned counsel for the petitioner to have informed the Court about filing of such affidavits by the State and the petitioners. The least that was expected by the counsel was that the relevant facts about filing of affidavits were placed before the Court. The mere fact that counter affidavit was not restored by the Registry in the records of the writ would not mean that stand of the State, already taken before the writ court, by filing a counter affidavit, ought not be looked into.

15. Coming to the facts of the case, we find that although the institution was duly recognized and primary section was also approved, but about 54 teachers were already working in the primary section of the institution and were receiving salary. The stand of the State was that at best 25 teachers could have been employed as per the students strength.

16. We also find from the materials on record that the institution only has 16 rooms in which not only the primary section but also the intermediate college is being run. Once there are 16 rooms in the institution, which is upto the Intermediate level, we failed to understand as to how 59 sections could operate in the primary section. The claim of respondent petitioner for appointment is in respect of 12 sections over and above 59 sections already running in the attached primary of the institution. If that be so, we fail to understand as to how such large number of primary sections in the institution could have functioned. The claim of the respondent/petitioners is that they were appointed against 12 additional posts approved by the District Inspector of Schools. In this regard, we may point out that by virtue of Section 9 of the Act of 1971 the order for creation of post can only be passed by the Director. Law in this regard has already been settled by the Full Bench of this Court in the case of Gopal Dubey Vs. District Inspector of Schools, 1999 (35) ALR 191. There is no order on record of the Director sanctioning 12 additional post in the institution. The admitted assertion in the writ petition is that District Inspector of Schools had granted permission for opening 12 additional sections. The order of Director granting such permission is not on record. The only material available on record is the appointment order of the petitioners dated 1.1.1994. This appointment order does not refer to any procedure having been followed before appointing the respondent/petitioners. There is no advertisement preceding the appointments offered to the respondent petitioners. We also find that the qualification for appointment to the post of Assistant Teacher in primary section is Intermediate with B.T.C. Training. Admittedly, none of the respondent petitioners possess B.T.C. Training Qualification. No procedure for appointment is otherwise shown to exist on record.

17. In such circumstances, in the absence of there being any post or following of procedure for appointment, the question of offering appointment to the respondents has to be viewed with sense of suspicion.

18. We otherwise find that though the respondents claim that they were appointed on 1.1.1994, but they never received any salary from the State funds till 2024. It is only pursuant to the orders passed in contempt that for one month salary has been paid to the respondent petitioners no. 4 & 5. None of the other respondents have received any salary.

19. We otherwise find that if the appointment was offered in the year 1994, and it was approved, there was no occasion for the petitioners not to have pressed their claim for salary from the State funds. In fact such claim for the first time has been pressed only in the year 2002.

20. We may also note that the respondent/petitioners assert that their appointment was approved by the District Inspector of Schools vide order dated 26.4.1994 but the State authorities consistently dispute such document on record. As per them this is a fraudulent document and that no records in respect of such order existed on record.

21. Learned counsel for the respondent/petitioners, however, submits that the plea of non-availability of such records was not put-forth by the District Inspector of Schools in his order dated 3.3.2006. This, however, will not be material, inasmuch as, the consistent case of the State has been that no such financial approval was granted to the appointment of the respondents. Unless the writ petitioners were able to demonstrate that their appointment was against any sanctioned post, by following the procedure prescribed, and the teachers possess requisite qualification the question of payment of salary ordinarily would not arise. We also notice that neither there was any post created against which the respondent petitioners came to be appointed, nor they possess requisite qualification and no fair procedure for appointment was followed. Therefore, entire claim for payment of salary has to be rejected.

22. In view of the deliberations and discussions held above, this special appeal succeeds and is allowed. The judgment and order passed by the learned Single Judge, dated 18.5.2009 as well as the order passed in review application, dated 8.1.2025 are set aside. The writ petition filed by the respondents is dismissed.

Order Date :- 16.4.2025

Anil/Ranjeet Sahu