Allahabad High Court
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD WRIT - A No. - 13000 of 2018 Shri Prakash Dwivedi State Of U.P. And 5 Others Counsel for Petitioner(s) Versus .....Petitioner(s) .....Respondent(s) : Anand
Legal Reasoning
Paul, Prakash Ashutosh Srivastava, Brij Shreesh Bhushan Paul, Srivastava, Shreyas Srivastava Counsel for Respondent(s) : C.S.C., Vivek Kumar Singh Court No. - 38 HON'BLE DONADI RAMESH, J. 1. The present writ petition is filed aggrieved by the action of the respondents in making correction of entries in the service record with further a prayer to fix the salary of the petitioner in light of sixth and seventh pay commission reports and all pensionary benefits due to the petitioner. 2. After filing counter affidavit the prayer has been amended and impugned order dated 04.07.2011 passed by fourth-respondent is challenged. 3. The contention of the petitioner is that initially he was appointed as on the post of Assistant Teacher, L.T. Grade on 01.03.1986 in short term vacancy and his services were approved by the fourth-respondent till 20.05.1986. Though, his services were regularized but the sixth-respondent has continued his services as Assistant Teacher but the respondents have not released the salaries. Assailing the said action the petitioner has filed Writ Petition No.6704 of 1987 with a prayer directing the District Inspector of Schools to treat the petitioner as continuous in service and pay the salaries. The said writ petition was disposed of vide order dated 09.03.1987. The operative portion reads as follows:- "The Petitioner is entitled to be treated as a teacher on ad-hoc basis and is also entitled to be paid his salary regularly, if the following conditions subsist; 2 WRIA No. 13000 of 2018 1) The service of the Petitioner has not been terminated in accordance with law. 2) No selection of a teacher for the post held by the Petitioner has been made by the commission and even if the selection has been made, the person so selected has not joined on the post held by the Petitioner. 3) No teacher from amongst the reserve pool category has been appointed on the post held by the petitioner. The District Inspector of Schools shall re-consider the case of the Petitioner for the payment of salary in the light of the observations made above. If the District Inspector of Schools comes to this conclusion that the aforementioned conditions exist, he shall direct payment of the past salary to the Petitioner and also continue to pay his salary month by month. The District Inspector of Schools shall give his decision within a period of one month from the date of production of a certified copy of this Order before him.
Decision
With these observations, the Writ Petition is disposed off finally." 4. Based on the above directions the District Inspector of Schools once again rejected the payment of salary to the petitioner and the said rejection is not in accordance with order passed by this Court in the above referred judgment. Aggrieved by the same the petitioner has approached this Court once again by filing Writ Petition No.13853 of 1987. The said writ petition was disposed of along with other writ petitions vide order dated 27.05.2005, wherein the learned Single Judge has rejected the claim of the petitioner with the following observations: "In my view, the submission of the learned counsel is devoid of any merit, Sri Prakash Dwivedi is not entitled to the relief claimed. A clear finding has been given by the District Inspector of Schools that after the re- opening of the institution, i.e. after the summer vacation, Sri Prakash Dwivedi did not join the institution, and did not work and, therefore, his appointment as an adhoc teacher came to an end on 20.05.1986 under the terms and conditions of the appointment letter which was in accordance with law. The Committee of Management in its counter affidavit has also submitted that Sri Prakash Dwivedi never worked after 21.05.1986. It is relevant to point out, that at this stage there was no dispute between Sri Prakash Dwivedi and Committee of Management. Therefore, there is no reason to dispute the affidavit of the Committee of Management. Consequently, the findings given by the District Inspector of Schools in his order dated 29.06.1987, being based on findings of fact, requires no interference by this Court. It is clear, that Sri Prakash Dwivedi did not work between the period from 20.05.1986 till 24.11.1987 and, therefore, was not entitled for any salary for this period. In view of the aforesaid, Sri Prakash Dwivedi is not entitled to any relief." 5. But in the said writ petition, the Court has directed the respondents to consider the case of the petitioner under Section 33-A (1-C) of the U.P. Secondary Education Services Selection Board, 1982. Aggrieved by the said observation of this Court, the 3 WRIA No. 13000 of 2018 petitioner has filed intra- court appeal which is numbered as Special Appeal Defective No.429 of 2005, where the division bench has considered the submissions and based on record the special appeal filed by the petitioner is allowed with the following observations:- "For resolving the controversy one has to start with the Division Bench judgment, which has become binding upon the parties and to which the District Inspector of Schools is also a party. The date of the judgment is 9.3.1987, case filed at the initial period by the Teacher, who, with n approval only from March to May of thr year 1986 given by the District Inspector of Schools was under position of doubt and dispute. The Division Bench clearly laid down that there were three conditions whih were to be scrutinized for the purpose of determining the status of the Teache. Those three conditions are etout on pages 72 and 73 of the paper book in Special Appeal No. 429 of 2995. The conditions are reproduced below. 1. "The services of the petitioner has not been terminated in accordance with law. 2. No selection of a teacher for the post held by petitioner has been ade by the omission and even if the selection has been made the person so selected has hot joined on the post held by the petitioner. 3. No teacher from amongst the reserve poor category has been appointed on the post held by the petitioner" The Division Bench directed that the District Inspector of schools shall reconsider the case of the Teacher for the payment of his salary in the light of the observations made by the Division Bench, if the District Inspector of Shools came to the conclusion that the conditions laid down by the Division Bench existed, then there was no alternative left to him but to direct the payment of the post salary to the writ petitioner. The decision of the District Inspector of Schools was given and that was challenged by the teacher which challenges has been disposed of in the judgment under appeal. We find from the decision of District Inspector of Schools that none of the three conditions mentioned by the Division Bench are found to be lackng in the ase of the teacher and yet an adverse decision was entered against him. Apparently, only because the initial approval was for only two months. As such we are of clear opinion that in the Teacher;s appeal being Special Appeal No. 429 of 2005, the decision of the District Inspector of Schools is to be struck of and quashed and that is hereby done, it is declared that the Teacher in question will be entitled to be paid salary for all time in future until, if above, any of the conditions laid down by the Division Bench becomes unsatisfied, for the position change as to circumstances adverse to the Teacher in regard to any of the said three conditions. The direction which is being given for regularization of the Teacher, is thus consequential and that direction should be complied with. 4 WRIA No. 13000 of 2018 For the reasons we allow the appeal of Teacher, the appeal of the Committee of Management being Special Appeal No. 863 of 2005 has to be turned down. On the basis of the Division Bench Judgment, there is no second alternative but to regularize the services of the Teacher." 6. Wherein, this Court has clearly observed that the petitioner is appointed on 01.03.1986 and he continued to work accordingly, he is entitled for payment of salary from the date of appointment. Based on the above said directions, the District Inspector of Schools- fourth-respondent has passed order on 24.12.2005 taking the initial appointment as 01.03.1986 and accordingly released the salaries to the petitioner. 7. While that being the position surprisingly, the respondents once again changed the initial date of appointment as 24.11.1987 and denied the sixth and seventh pay commission scales. Aggrieved by the same the petitioner has filed the present writ petition. 8. After notice the respondents have filed counter affidavit in which the respondents have place an order on 04.07.2011 passed by the fourth-respondent wherein he has suo moto altered the date of initial appointment from 01.03.1986 to 24.11.1987, hence the said orders are impugned by amending the prayer. 9. Based on the above averments, learned counsel appearing on behalf of the petitioner has made his submissions that the orders passed on 04.07.2011 is contrary to the record and also the observations made by the Division Bench of this Court. In fact after disposal of the special appeal the petitioner has pressed the provisions of the Contempt Act and after that the respondents have passed orders on 24.12.2005 confirming the date of appointment of the petitioner as 01.03.1986 and surprisingly, by the impugned order without notice to the petitioner has suo moto corrected the entries made in the service record by altering initial appointment as 24.11.1987 which is illegal improper and without having any jurisdiction. Apart from all these things the said orders are contrary to the observations made by the Division Bench of this Court. 10. In reply to the said contentions, learned counsel appearing on behalf of respondents have submitted that as the petitioner has already retired on 31.03.2018 despite he is illegally seeking salary from 21.05.1986. Further, as also made observation that as there are certain FIR's are registered against the petitioner along with others and on verification of report it was found that the petitioner was on 24.11.1987, and appointment of accordingly, is fixed as initial date of appointment the 24.11.1987. 11. Considering the submissions and verifying the records, no 5 WRIA No. 13000 of 2018 doubt the petitioner has approached this Court for payment of salary and his services can be terminated only on three grounds, but surprisingly the respondents have rejected the salary to the petitioner and assailing the same the matter went up to special appeal before the Division Bench and Division Bench has categorically given findings with regard to entitlement of the petitioner and in fact the then District Inspector of Schools has considered the said orders and passed orders on 24.12.2005 fixing initial date of appointment as 01.03.1986 and released the salaries. 12. In those circumstances, all the respondents are stopped to pass any orders contrary to the observations made by this Court in the above referred special appeal. Apart from that once the District Inspector of Schools- concerned authority has passed an order by taking initial appointment as 01.03.1986, the very same authority is restricted to pass any other orders without following the principles of natural impugned order 04.07.2011 passed by fourth-respondent is set aside and the present writ petition is disposed of with the direction to the respondents to consider and released all dues which are entitled by the petitioner within a period of three months from the date of a receipt of a copy of this order. justice accordingly September 25, 2025 AdityaG (Donadi Ramesh,J.) Digitally signed by :- ADITYA GAUTAM High Court of Judicature at Allahabad