State Of Up And 2 Others vs Smt Manju Sonkar And 3 Others
2025 Latest Caselaw 9368 ALL

Allahabad High Court

State Of Up And 2 Others vs Smt Manju Sonkar And 3 Others on 17 April, 2025

Author: Ashwani Kumar Mishra

Bench: Ashwani Kumar Mishra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:58526-DB
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 268 of 2025
 

 
Appellant :- State Of Up And 2 Others
 
Respondent :- Smt Manju Sonkar And 3 Others
 
Counsel for Appellant :- C.S.C.,S.C.
 
Counsel for Respondent :- Kartikeya Saran,Rajjan Singh Yadav
 

 
Hon'ble Ashwani Kumar Mishra,J.
 

Hon'ble Vinod Diwakar,J.

This special appeal has been filed by the state of U.P. through Secretary, Basic Education, Government of Lucknow and two others, challenging the order dated 10.05.2024 passed by the learned Single Judge in Writ - A No. 15808 of 2019.

The Writ petition No. 15808 of 2019 came to be filed before this Court by the respondent-petitioner challenging the order passed by the District Basic Education Officer on 28.09.2018 enclosed as Annexure-19 to the writ petition. By this order the District Basic Education Officer has rejected the claim for payment of salary in favour of respondent-petitioner on the ground that appointment itself was not against any sanctioned post. The order of the District Basic Education Officer was passed pursuant to the direction issued by this Court in Writ - A No. 1619 of 2014 (Lalita Devi Vs. State of U.P. and 4 others) & Writ - A No. 7197 of 2014 (Smt. Kamini Singh and another Vs. State of U.P. and 4 others), dated 13.01.2014 & 06.02.2014, respectively.

The order dated 13.01.2014 passed in Writ - A No. 1619 of 2014 is reproduced hereinbelow :

"This petition has been filed for a direction in the nature of the mandamus commanding the respondents to release the payment of salary of the petitioner on the post of Assistant Teacher in the Primary School.

From the averments made in the writ petition, it appears that the petitioner is working as Assistant Teacher in the Dinkar Balika Vidyalaya, Jamalpur, Jaunpur since 10.6.2010 but she has not been paid her salary. No useful purpose will be served by keeping this matter pending.

I have heard Sri Anil Kumar Srivastava, learned counsel for the petitioner, Sri Mrig Raj Singh, learned Advocate, representing the respondents no. 3 and 4 and learned Standing Counsel representing the respondents no. 1 and 2.

In view of the nature of the order being passed, it is not necessary to issue notice to the respondent no. 5.

Without expressing any opinion on the merits of the case, this writ petition is being disposed of with the consent of the learned counsel for the parties with a direction to the respondent no. 3, District Basic Education Officer, Jaunpur that if the petitioner prefers a fresh representation raising all his grievances which he has raised in this petition along with certified copy of this order within 10 days from today before the respondent no. 3, the said respondents shall consider and decide the said representation within a further period of two months by a reasoned and speaking order strictly in accordance with law."

The order dated 06.02.2014 passed in Writ - A No. 7197 of 2014 is reproduced hereinbelow : ?

"This petition has been filed for a direction in the nature of the mandamus commanding the respondents to release the payment of salary of the petitioner on the post of Assistant Teacher in the Primary School.

From the averments made in the writ petition, it appears that the petitioners are working as Assistant Teacher in the Dinkar Balika Vidyalaya, Jamalpur, Jaunpur since 10.6.2010 but they have not been paid their salary. No useful purpose will be served by keeping this matter pending.

I have heard Sri Anil Kumar Srivastava, learned counsel for the petitioners, Sri Mrig Raj Singh, learned counsel for the respondents no. 3 & 4 and the learned Standing Counsel representing the respondents no. 1 & 2. In view of the order, which is being passed, it is not necessary to issue notice to the respondent no. 5.

Without expressing any opinion on the merits of the case, this writ petition is being disposed of with the consent of the learned counsel for the parties with a direction to the respondent no. 3, District Basic Education Officer, Jaunpur that if the petitioners prefer a fresh representation raising all their grievances which they have raised in this petition along with certified copy of this order within 10 days from today before the respondent no. 3, the said respondents shall consider and decide the said representation within a further period of two months by a reasoned and speaking order strictly in accordance with law."

The writ petitioners stated that the institution in question, namely, Dinkar Balika Vidyalaya, Jamalpur, Jaunpur, is recognized under the provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 and the Payment of Salary Act, 1971 was applicable on it. It was asserted that the institution was established in the year 1962 and the salary bill of the month of May, 1979 has been placed on record to show that 14 teachers and four employees were duly paid salary. It was also asserted that 18 posts were sanctioned in the institution against which salary was being paid. It was further stated that one Pratima Singh was drawing salary from the State fund, she died on 20.01.2001 and against this vacancy the Committee of Management of the institution had sought permission to fill up that post. The permission was granted by the District Basic Education Officer on 30.03.2010. The vacancy was advertised in two newspapers, namely, 'Aaj' and 'Tarun Mitra'. The selection committee, as per Rule-9 of the U.P. Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions of Service of Teachers), Rules, 1978 was constituted with the nominee of the District Basic Education Officer in the selection committee which selected and appointed the writ petitioner. This appointment was also approved on 10.06.2010. The respondent-petitioner joined pursuant to the said order and had been working continuously. Payment of Salary, however, was not released to her, which led her to file the writ petition wherein a direction was issued to the District Basic Education Officer to consider her representation. It is pursuant to the said direction that the claim of the writ petitioner was rejected. The only reason assigned in the order that there was no post.

Although, counter affidavit has been filed by the District Basic Education Officer but the facts with regard to approval being granted to fill up the post, sanction granted by the District Basic Education Officer and nominee sent for the selection process by District Basic Education Officer etc. are undisputed. It was also undisputed that the appointment of the respondent-petitioner was approved. The only contention of the respondent before the learned Single Judge was that in a survey conducted in the year 2010, lesser number of post were found admissible, based upon the students strength.

Learned Single Judge has placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Radhey Shyam & others Vs. State of U.P. & others, AIR 2024 SC 260. Various other judgments have also been relied.

In the present appeal also the fact that 14 teachers were getting salary out of the State fund since 1979 has not been disputed. In the counter affidavit the assertions made in the writ petition are although denied as baseless and it is stated that the institution was taken in the grant-in-aid list in the year 1970, in place of 1969, but the only assertion made in respect of the salary bill appended by the writ petitioners for the particular period is that it has no relevance with the present matter. This assertion in the counter affidavit makes it apparent that salary bill for the month of May, 1979 is not disputed.

Once that be so, 14 posts of teachers were in existence in the institution in question. There was no order passed by the Director, reducing the number of posts, subsequently. Merely, on a physical inspection and only for the fact that lesser number of students are found, it would not justify any adverse inference that number of posts of teacher stood reduced. Strength of students may vary from year to year. Unless the Director passes some orders to reduce the number of posts in an institution, therefore, it would not be open for the respondents to oppose the claim for payment of salary to the writ petitioner. This is particularly show as the procedure under the Rules of 1978 are shown to be complied with and the appointment was also approved by the District Basic Education Officer.

It is also not in dispute that the post was duly advertised and the respondent-petitioners possess requisite qualifications.

Once that being so, we find no occasion to interfere in the judgment of the learned Single Judge.

Accordingly, the special appeal fails and is dismissed.

Order Date :- 17.4.2025

Prajapati